EXHIBIT 5
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of
September 4, 2003 (this "Agreement"), by and among INSCI Corp., a Delaware
corporation (the "Company"), SCP Private Equity Partners II, L.P., a Delaware
limited partnership ("SCP"), Selway Partners, LLC, a New Jersey limited
liability company ("Selway") and Selway Management, Inc., a Delaware corporation
("Selway Management" and together with Selway, the "Original Investors") and CIP
Capital L.P., a Delaware limited partnership ("CIP"). Selway, Selway Management,
SCP and CIP are each an "Investor" and together are the "Investors".
RECITALS
WHEREAS, SCP and the Company are parties to that certain Series C Preferred
Stock Purchase Agreement, dated as of even date herewith (the "Purchase
Agreement"), by and between the Company and SCP;
WHEREAS, the Original Investors are parties to that certain Registration
Rights Agreement dated June 21, 2003 by and among the Original Investors and the
Company (the "Original Agreement"); and
WHEREAS, it is a condition precedent to the closing of the transactions
contemplated by the Purchase Agreement that the Original Agreement be amended,
restated and superceded as set forth herein; and
WHEREAS, the Company and the Investors hereby agree that this Agreement
shall amend, restate and supercede the Original Agreement and shall govern the
rights of the Investors to cause the Company to register shares of Common Stock
(as hereinafter defined) and certain other matters as set forth herein.
NOW THEREFORE, in consideration of the foregoing and the covenants and
agreements contained herein the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Definitions.
As used herein, unless the context otherwise requires or unless
otherwise defined, the following terms have the respective meanings set forth
below:
"Blue Sky Filing" has the meaning set forth in Section 2.10.
"Commission" means the Securities and Exchange Commission or an agency
at the time administering the Securities Act.
"Common Stock" means the common stock of the Company with a par value
$0.01 per share and shall include any stock into which such common stock shall
have been changed or any stock resulting from any reclassification of such
common stock, and all other stock of any class or classes (however designated)
of the Company the holders of which have the right (without limitation as to
amount), to all or a portion of current dividends and liquidating dividends
after the payment of dividends and distributions on any shares entitled to
preference.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means United States generally accepted accounting principles.
"Holder" or Holders" means any person or persons to whom Registrable
Securities were originally issued or Qualifying Transferees.
"Person" means a corporation, an association, a partnership, a limited
liability company, an organization, a business, an individual, a government or
political subdivision thereof or a governmental agency.
"Qualifying Transferees" means assignees of any of the Investors in
accordance with Section 7.
"Registrable Securities" means the Series A Registrable Securities,
the Series B Registrable Securities and the Series C Registrable Securities.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
all registration, filing and listing fees, all fees and expenses of complying
with securities or blue sky laws, all fees and expenses of listing the
Registrable Securities being registered on any securities exchange, all word
processing, duplicating and printing expenses, messenger and delivery expenses,
the fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of any special audits or "comfort"
letters required by or incidental to such performance and compliance, the
reasonable fees and disbursements of any one counsel retained by the Investors
and any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, but excluding underwriting discounts and commissions and
transfer taxes, if any, attributable to securities sold by the Investors,
provided that, in any case where Registration Expenses are not to be borne by
the Company, such expenses shall not include salaries of Company personnel or
general overhead expenses of the Company, auditing fees, premiums or other
expenses relating to liability insurance required by underwriters of the Company
or other expenses for the preparation of
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financial statements or other data normally prepared by the Company in the
ordinary course of its business or which the Company would have incurred in any
event.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Preferred Stock" means the Company's Series A Convertible
Preferred Stock with a par value $0.01 per share.
"Series A Registrable Securities" means any shares of Common Stock
issuable upon conversion of the Series A Preferred Stock, including shares of
Common Stock issued or issuable with respect to any such Common Stock by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise. As
to any particular Series A Registrable Securities, such securities shall cease
to be Series A Registrable Securities when (a) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (b) such securities may be sold pursuant to
Rule 144(k) (or any successor provision) under the Securities Act, (c) such
securities shall have been otherwise transferred, new certificates therefor not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of such securities shall not require
registration or qualification of such securities under the Securities Act or any
similar state law then in force, or (d) such securities shall have ceased to be
outstanding.
"Series B Preferred Stock" means the Company's Series B Convertible
Preferred Stock with a par value $0.01 per share.
"Series B Registrable Securities" means any shares of Common Stock
issuable upon conversion of the Series B Preferred Stock, including shares of
Common Stock issued or issuable with respect to any such Common Stock by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise. As
to any particular Series B Registrable Securities, such securities shall cease
to be Series B Registrable Securities when (a) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (b) such securities may be sold pursuant to
Rule 144(k) (or any successor provision) under the Securities Act, (c) such
securities shall have been otherwise transferred, new certificates therefor not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of such securities shall not require
registration or qualification of such securities under the Securities Act or any
similar state law then in force, or (d) such securities shall have ceased to be
outstanding.
"Series C Preferred Stock" means the Company's Series C Convertible
Preferred Stock with a par value $0.01 per share.
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"Series C Registrable Securities" means any shares of Common Stock
issuable upon conversion of the Series C Preferred Stock, including shares of
Common Stock issued or issuable with respect to any such Common Stock by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise. As
to any particular Series C Registrable Securities, such securities shall cease
to be Series C Registrable Securities when (a) a registration statement with
respect to the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (b) such securities may be sold pursuant to
Rule 144(k) (or any successor provision) under the Securities Act, (c) such
securities shall have been otherwise transferred, new certificates therefor not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of such securities shall not require
registration or qualification of such securities under the Securities Act or any
similar state law then in force, or (d) such securities shall have ceased to be
outstanding.
2. Registration under Securities Act.
2.1 Registrations for Holders .
(a) Initial Registration. The Company shall (i) promptly effect
the registration under the Securities Act of the Registrable Securities;
(ii) give notice thereof to all other security holders of the Company, if
any, that are entitled to participate in such registration; (iii) file the
registration statement (the "Required Statement") required pursuant to this
subsection (a) not later than October 1, 2003 (the "Required Filing Date");
(iv) subject to Section 2.4, use its reasonable best efforts to have such
Required Statement declared effective as soon as possible after the filing
thereof and (v) use its best efforts to keep such Required Statement
effective for a period of at least three (3) years (the "Required Effective
Period") from the date of filing thereof.
(b) Demand Registration of Series B Registrable Securities. At
any time after the Required Filing Date and upon the written request of the
Original Investors and/or their Qualifying Transferees ("Series B
Initiating Holders") holding not less than twenty-five percent (25%) of the
outstanding Series B Registrable Securities (or securities that are
convertible into or exercisable for Series B Registrable Securities), that
the Company effect the registration under the Securities Act of all or part
of the Series B Registrable Securities and the Series A Registrable
Securities, the Company shall use its reasonable best efforts to effect the
registration under the Securities Act of the Series B Registrable
Securities and the Series A Registrable Securities that the Company has
been so requested to register by the Series B Initiating Holders for
disposition in accordance with the intended method of disposition stated in
such request. Any such demand must request the registration of Series B
Registrable Securities and Series A Registrable Securities having an
estimated market value of at least $250,000. Promptly after receipt of such
request, the Company shall give notice
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thereof to all other security holders of the Company, if any, that are
entitled to participate in such registration. The Company shall file the
registration statement requested pursuant to this subsection (b) not later
than sixty (60) days following such request, and subject to Section 2.4,
shall use its reasonable best efforts to have such registration statement
declared effective as soon as possible after the filing thereof.
(c) Demand Registration of Series C Registrable Securities. At
any time after the Required Filing Date and upon the written request of SCP
and/or its Qualifying Transferees ("Series C Initiating Holders") holding
not less than twenty-five percent (25%) of the outstanding Series C
Registrable Securities (or securities that are convertible into or
exercisable for Series C Registrable Securities), that the Company effect
the registration under the Securities Act of all or part of the Series C
Registrable Securities, the Company shall use its reasonable best efforts
to effect the registration under the Securities Act of the Series C
Registrable Securities that the Company has been so requested to register
by the Series C Initiating Holders for disposition in accordance with the
intended method of disposition stated in such request. Any such demand must
request the registration of Series C Registrable Securities having an
estimated market value of at least $250,000. Promptly after receipt of such
request, the Company shall give notice thereof to all other security
holders of the Company, if any, that are entitled to participate in such
registration. The Company shall file the registration statement requested
pursuant to this subsection (c) not later than sixty (60) days following
such request, and subject to Section 2.4, shall use its reasonable best
efforts to have such registration statement declared effective as soon as
possible after the filing thereof.
(d) Registration of Other Securities. Whenever the Company shall
effect a registration pursuant to this Section 2.1 in connection with an
underwritten offering by one or more Holders of the Registrable Securities,
no securities other than Registrable Securities shall be included among the
securities covered by such registration unless (i) the managing underwriter
of such offering shall have advised the Series B Initiating Holders or
Series C Initiating Holders, as applicable (the "Initiating Holders"), in
writing that the inclusion of such other securities would not adversely
affect such offering or (ii) the Initiating Holders participating in such
offering shall have consented in writing to the inclusion of such other
securities.
(e) Registration Statement Form. Registrations under this Section
2.1 shall be on such appropriate registration form of the Commission (i) as
shall be selected by the Company and as shall be reasonably acceptable to
the Investors or the Initiating Holders, as is appropriate, and (ii) as
shall permit the disposition of such Registrable Securities in accordance
with the intended method or methods of disposition.
(f) Expenses. The Company shall pay all Registration Expenses in
connection with any registration pursuant to this Section 2.1.
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(g) Effective Registration Statement. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected and
shall not be considered a Required Statement or a demand registration which
may be requested pursuant to Section 2.1(b) and/or Section 2.1(c) (i)
unless (A) a registration statement with respect thereto has become
effective, (B) such registration statement has remained effective for the
Required Effective Period in the case of the Required Statement or for so
long as provided in Section 2.4 for demand registrations under Sections
2.1(b) and 2.1(c), and (C) such registration statement has not become
subject to any stop order, injunction or other order or requirement of the
Commission or other governmental agency or court for any reason, unless
such registration statement has become effective within thirty (30) days
thereafter, or (ii) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied or waived (other than in the case of a
demand registration, by reason of the failure or refusal of the Initiating
Holders of the Registrable Securities that are the subject of such demand
registration, to satisfy or perform a condition to such closing).
(h) Two Demand Registrations. Collectively, the Original
Investors shall be entitled to demand one (1) registration pursuant to
Section 2.1(b). SCP shall be entitled to demand one (1) registration
pursuant to Section 2.1(c).
2.2 Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at
any time proposes to register any of its securities under the Securities
Act by registration on Forms X-0, X-0 or S-3 or any successor or similar
form(s) of general application, whether or not for sale for its own
account, it shall give prompt written notice to all Holders of Registrable
Securities of its intention to do so and of such Holders' rights under this
Section 2.2. Upon the written request of any such Holders specifying the
Registrable Securities intended to be disposed of by such Holder, made
within twenty (20) days after the receipt of any such notice (ten (10) days
if the Company gives telephonic notice to all Holders of Registrable
Securities, with written confirmation to follow promptly thereafter,
stating that (i) such registration will be on Form S-3 and (ii) such
shorter period of time is required because of a planned filing date), which
request shall specify the Registrable Securities intended to be disposed of
by such Holder, the Company shall use its reasonable best efforts to effect
the registration under the Securities Act of all Registrable Securities
which the Company has been so requested to register by the Holders thereof,
to the extent requisite to permit the disposition (in accordance with the
Company's intended method) of such Registrable Securities to be so
registered. If the Company thereafter determines for any reason not to
register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination to each Holder of
Registrable Securities and thereupon, (i) in the case of a determination
not to register, shall be relieved of its obligation to register such
Registrable Securities in connection with such registration (but not from
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its obligation to pay the Registration Expenses in connection therewith),
without prejudice, however, to the rights (if any) of the Investors or any
Holder or Holders of Registrable Securities entitled to do so to request
that such registration be effected as a registration under Section 2.1, and
(ii) in the case of a determination to delay registering, shall be
permitted to delay registering any Registrable Securities for the same
period as the delay in registering such other securities. No registration
effected under this Section 2.2 shall relieve the Company of its obligation
to effect any registration under Section 2.1, nor shall it be deemed to
have been effected pursuant to Section 2.1. The Company shall pay all
Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 2.2.
(b) Priority in Incidental Registrations. In a registration
pursuant to this Section 2.2 involving an underwritten offering, whether or
not for sale for the account of the Company, if the managing underwriter of
such underwritten offering shall inform the Company by letter of its belief
that the number of securities requested by stockholders to be included in
such registration would substantially interfere with its ability to effect
such offering in accordance with the intended method thereof (such letter
to state the basis of such belief and the approximate number of such
securities that may be distributed without such effect), then the number of
securities requested to be registered by the Holders of the Registrable
Securities shall be allocated: (i) first, to any shares of Common Stock the
Company wishes to include in any such registration; (ii) second, to the
Registrable Securities held by Holders who have notified the Company of
their intention to include Registrable Securities in such Registration, pro
rata, based upon the number of Registrable Securities owned by each of such
Holders at the time of Registration; and (iii) third, the Registrable
Securities held by persons other than the Holders, pro rata, based upon the
number of Registrable Securities owned by such others at the time of such
registration.
The Company shall so advise all Holders of Registrable Securities which
would otherwise be registered and underwritten pursuant hereto, and of the
number of shares of Registrable Securities that may be included in the
registration and underwriting. If any Holder disapproves of the terms of the any
such underwriting, such Holder may elect to withdraw therefrom by written notice
to the Company and the underwriter. Any Registrable Securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration.
2.3 Form S-3 Registration. At any time upon the written request of the
Original Investors or SCP that the Company effect the registration under the
Securities Act on Form S-3, or any successor form of all or part of the
Registrable Securities, the Company shall promptly give written notice of such
request to all registered Holders of Registrable Securities, and thereupon the
Company shall use its reasonable best efforts to effect the registration under
the Securities Act of the Registrable Securities that the Company has been so
requested to register by the Holders for disposition in accordance with the
intended method of disposition stated in such request. Promptly after receipt of
such request, the Company shall give notice thereof to all other security
holders of the Company, if any, that are entitled to participate in
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such registration. The Company shall file the registration statement requested
pursuant to this section 2.3 not later than thirty (30) days following such
request, subject to Section 2.8, and shall use its reasonable best efforts to
have such registration statement declared effective as soon as possible after
the filing thereof; provided, however, that (i) the Company shall not be
obligated to effect any registration pursuant to this Section 2.3 if Form S-3,
or any successor form, is not available for such registration, (ii) the market
value of the Registrable Securities to be sold in any such registration shall be
estimated to be at least $250,000 at the time of the request for registration
and (iii) the Company shall not be required to effect more than two (2) such
registrations pursuant to this Section 2.3 in any twelve (12) month period.
Registrations effected pursuant to this Section 2.3 shall not be counted as
demands for registration effected pursuant to Section 2.1. The Company shall pay
all Registration Expenses in connection with any registration requested pursuant
to this Section 2.3.
2.4 Registration Procedures. In connection with the Company's
obligations pursuant to Sections 2.1, 2.2 and 2.3, the Company will use its best
efforts to effect such registrations to permit the sale of Registrable
Securities (and, in the case of Sections 2.1 and 2.3, in accordance with the
intended method or methods of disposition thereof), and pursuant thereto the
Company will as expeditiously as possible:
(a) prepare and file with the Commission a registration statement
or registration statements on any appropriate form under the Securities Act
and use its best efforts to cause such registration statement to become
effective, keep such registration statement effective for up to one hundred
eighty (180) days (except in the case of a Required Statement which shall
remain effective for the Required Effective Period), or until the
distribution contemplated in the registration statement has been completed;
provided, however, that (i) such Required Effective Period or one hundred
eighty (180) day period shall be extended for a period of time equal to the
period the Holders of Registrable Securities refrain from selling any
securities included in such registration at the request of an underwriter
of Common Stock (or other securities) of the Company; and (ii) in the case
of any registration of Registrable Securities on Form S-3 that are intended
to be offered on a continuous or delayed basis, such Required Effective
Period or one hundred eighty (180) day period shall be extended, if
necessary, to keep the registration statement effective until all such
Registrable Securities are sold; provided that Rule 415 or any successor
rule under the Securities Act permits an offering on a continuous or
delayed basis, and provided further that applicable rules under the
Securities Act governing the obligation to file a post-effective amendment
permit, in lieu of filing a post-effective amendment that (A) includes any
prospectus required by Section 10(a)(3) of the Securities Act or (B)
reflects facts or events representing a material or fundamental change in
the information set forth in the registration statement, the incorporation
by reference in the registration statement of information required to be
included in (A) and (B) above contained in periodic reports filed pursuant
to Section 13 or 15(d) of the Exchange Act.
(b) prepare and file with the Commission such amendments and
post-
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effective amendments to a registration statement as may be necessary to
keep such registration statement effective for the applicable period; cause
the related prospectus to be supplemented by and required prospectus
supplement, and as so supplemented to be filed pursuant to the Securities
Act; provided that prior to filing any such amendments or supplements or
any documents that would be incorporated by reference in such registration
statement, the Company shall furnish to the Investors, their counsel and
the underwriters, if any, copies of all such documents proposed to be filed
(other than documents filed under the Exchange Act), and the Company shall
consider all reasonable requests by the Investors or the underwriters for
modifications of any such amendments, supplements or documents incorporated
by reference; and comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement or supplement to such prospectus;
(c) notify the Investors and selling Holders of Registrable
Securities, and the managing underwriters, if any, as promptly as
practicable, and confirm such notice in writing, (i) when a prospectus or
any prospectus supplement or post-effective amendment has been filed, and,
with respect to a registration statement or any post-effective amendment,
when it has become effective, (ii) of any request by the Commission for
amendments or supplements to a registration statement or related prospectus
or for additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of a registration statement or
the initiation of any proceedings for that purpose, (iv) if at any time the
representations and warranties of the Company made as contemplated by
subsection (k) below cease to be true and correct, (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose, (vi) of
the happening of any event that requires the making of any changes in a
registration statement or related prospectus so that such documents will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and (vii) of the Company's reasonable
determination that a post-effective amendment to a registration statement
would be appropriate;
(d) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a registration statement, or the
lifting of any suspension of the qualification of any of the Registrable
Securities for sale in any jurisdiction, as soon as practicable;
(e) if requested in a timely manner by the managing underwriters,
as promptly as practicable incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriters and
the Holders of Registrable Securities being sold in connection with an
underwritten offering agree
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should be included therein relating to the sale and distribution of
Registrable Securities, including, without limitation, information with
respect to the number of Registrable Securities being sold to such
underwriters, the purchase price being paid therefor by such underwriters
and with respect to any other terms of the offering of the Registrable
Securities to be sold in such offering; make all required filings of such
prospectus supplement or post-effective amendment as soon as practicable
after being notified of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and supplement or make amendments
to any registration statement with respect to information relating to any
Holder or the terms of the sale or offering of the Registrable Securities
if requested in a timely manner in writing by any Holder of Registrable
Securities covered by such registration statement or any underwriter of
such Registrable Securities;
(f) furnish to the lead managing underwriter and each Holder
selling Registrable Securities thereunder, without charge, at least one (1)
signed copy of the registration statement or statements and any
post-effective amendment thereto, and to each other selling Holder of
Registrable Securities, at least one (1) conformed copy thereof, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
(g) deliver to each Holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the prospectus or
prospectuses (including each preliminary prospectus) and any amendment or
supplement thereto as such persons may reasonably request.
(h) prior to any public offering of Registrable Securities, use
its best efforts to register or qualify or cooperate with the selling
Holders of Registrable Securities, the underwriters, if any, and their
respective counsel in connection with the registration or qualification of
such Registrable Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as any selling Holder or underwriter
reasonably requests in writing, keep each such registration or
qualification effective during the period such registration statement is
required to be kept effective and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the applicable registration
statement; provided that the Company shall not be required to qualify
generally to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general service
of process in any such jurisdiction where it is not then so subject;
(i) cooperate with the selling Holders of Registrable Securities
and the managing underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing Registrable Securities to be sold
and not bearing any restrictive legends unless required by applicable law;
and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may
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request at least two (2) business days prior to the closing of any sale of
Registrable Securities to the underwriters;
(j) upon the occurrence of any event contemplated by clause
(c)(vi) above, prepare a supplement or post-effective amendment to the
applicable registration statement or related prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the selling Holders of the Registrable
Securities, such prospectus will not contain any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(k) enter into such agreements (including an underwriting
agreement) and take all such other reasonable actions in connection
therewith in order to expedite or facilitate the disposition of such
Registrable Securities and in connection therewith, whether or not an
underwriting agreement is entered into and whether or not the registration
is an underwritten registration, (i) make such representations and
warranties to the Holders of such Registrable Securities with respect to
the registration statement, prospectus and documents incorporated by
reference, if any, in form, substance and scope as are customarily made by
issuers in similar offerings and confirm the same if and when requested;
(ii) obtain opinions of counsel to the Company (which may be the general
counsel) and updates thereof in the form, scope and substance as are
customary in similar offerings; (iii) in the case of an underwritten
offering, enter into an underwriting agreement in form, scope and substance
as is customary in underwritten offerings; (iv) furnish to each seller of
Registrable Securities a signed counterpart, addressed to such seller (and
the underwriters, if any) of a "comfort" letter, dated the effective date
of such registration statement (and, 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 certified the Company's financial statements included in such
registration statement, covering the matters with respect to such
registration statement (and the prospectus included therein) and with
respect to events subsequent to the date of such financial statements, as
are customarily covered in accountants' letters delivered to the
underwriters in underwritten public offerings of securities and such other
financial matters as such seller or such Holder (or the underwriters, if
any) may reasonably request; (v) if an underwriting agreement is entered
into, it shall set forth in full the indemnification provisions and
procedures of Section 2.10 with respect to all parties to be indemnified
pursuant to such section, with such other indemnification provisions as are
customary and acceptable to the underwriters, the Investors and the
Company; and (vi) the Company shall deliver such documents and certificates
as may be requested by the selling Holders of the Registrable Securities
and the managing underwriters, if any, to evidence compliance with this
paragraph (k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company. The
above shall be done at each closing under such underwriting or similar
agreement or as and to the extent required thereunder;
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(l) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make generally available to its
securityholders earnings statements satisfying the provisions of Section
11(a) of the Securities Act no later than ninety (90) days after the end of
any twelve (12) month period (i) beginning with the first day of the
Company's first fiscal quarter next succeeding each sale of Registrable
Securities after the effective date of a registration statement and (ii)
beginning with the first day of the Company's first fiscal quarter next
succeeding any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm or best efforts underwritten offering, which
statements shall cover such twelve (12) month periods,
(m) use its best efforts to cause all such Registrable Securities
to be listed on each securities exchange, if any, on which securities of
the class then being registered are listed; and
(n) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
registration statement.
The Company may require each Holder of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such Holder and the distribution of such Registrable
Securities as the Company may from time to time reasonably request in writing in
order to comply with the Securities Act. Each Holder of Registrable Securities
as to which any registration is being effected agrees to notify the Company as
promptly as practicable of any inaccuracy or change in information previously
furnished by such Holder to the Company or of the happening of any event as a
result of which any prospectus relating to such registration contains an untrue
statement of a material fact regarding such Holder or the distribution of such
Registrable Securities or omits to state any material fact regarding such Holder
or the distribution of such Registrable Securities required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and to promptly furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that such prospectus shall not contain, with respect
to such Holder or the distribution of such Registrable Securities, an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 2.4(c)(ii), (iii), (v), (vi) or (vii), such Holder will forthwith
discontinue disposition of such Registrable Securities covered by such
registration statement or prospectus until such Holder's receipt of the copies
of the supplemented or amended prospectus relating to such registration
statement or prospectus, or until it is advised in writing by the Company that
the use of the applicable prospectus may be resumed, and has received copies of
any additional or supplemental filings
-12-
that are incorporated by reference in such prospectus, and, if so directed by
the Company, such Holder will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such Holder's possession of
the prospectus covering the Registrable Securities at the time of receipt of
such notice.
2.5 Reports Under Exchange Act. With a view to making available to the
Investors the benefits of Rule 144 promulgated under the Securities Act and any
other rule or regulation of the Commission that may at any time permit an
Investor to sell securities of the Company to the public without registration or
pursuant to a registration statement on Form S-3, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action, including the voluntary registration of its
Common Stock under Section 12 of the Exchange Act, as is necessary to
enable the Investors to utilize Form S-3 for the sale of their Registrable
Securities, such action to be taken as soon as practicable after the end of
the fiscal year in which the first registration statement filed by the
Company for the offering of its securities to the general public is
declared effective;
(c) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act; and
(d) furnish to any Investors, so long as the Investors own any
Registrable Securities, forthwith upon request (i) a written statement by
the Company that it has complied with the reporting requirements of Rule
144 (at any time after ninety (90) days after the effective date of the
first registration statement filed by the Company), the Securities Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a
copy of the most recent annual or quarterly report of the Company and such
other reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing any Investors of any
rule or regulation of the Commission which permits the selling of any such
securities without registration or pursuant to such form.
2.6 Underwritten Offerings. In the case of any underwritten offering
pursuant to Section 2.1, the Investors shall select the investment banking firm
or firms, which shall be reasonably satisfactory to the Company. The Company
shall enter into an underwriting agreement which shall contain, without
limitation, the terms and provisions
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contemplated by Section 2.4(k) and shall be reasonably satisfactory in form and
substance to the Investors.
If the Company at any time proposes to register any of its securities
under the Securities Act as contemplated by Section 2.2 and such securities are
to be distributed by or through one (1) or more underwriters, the Holders of
Registrable Securities to be distributed therein shall be parties to the
underwriting agreement between the Company and the underwriters and may, at
their option, require that any or all of the representations and warranties by,
and the other agreements on the part of, the Company to and for the benefit of
such underwriters also be made to and for the benefit of such Holders of
Registrable Securities and that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such Holders of Registrable Securities.
2.7 Preparation: Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company shall give the selling Holders of
Registrable Securities, their underwriters, and their respective counsel and
accountants, a reasonable opportunity to participate in the preparation of such
registration statement, each prospectus included therein or filed with the
Commission, each amendment thereof or supplement thereto (other than documents
filed under the Exchange Act and incorporated by reference therein), and shall
give each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such Holders' and such underwriters' respective counsel, to
conduct a reasonable investigation within the meaning of the Securities Act.
2.8 Limitations, Conditions and Qualifications to Obligations Under
Registration Covenants. No Holder of Registrable Securities may participate in
any underwritten offering hereunder unless such Holder (i) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
2.9 Restrictions on Sales.
(a) Each Holder of Registrable Securities that are covered by a
registration statement filed pursuant to Section 2.1, 2.2 or 2.3 agrees, if
required by law, regulation or stock exchange rules or if requested by the
managing underwriters in an underwritten offering and to the extent timely
notified in writing by the Company or the managing underwriters, not to
effect any public sale or distribution of any securities of the Company of
the same class as the securities included in such registration statement,
including a sale pursuant to Rule 144 under the Securities Act (except as
part
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of such underwritten registration), during the period commencing ten (10)
days prior to the closing date of each underwritten offering made pursuant
to such registration statement and ending on the earlier of (i) the
termination of such offering and (ii) ninety (90) days after such closing
in the case of any other offering, or, in each case, such shorter period
offered to any other shareholder of the Company.
(b) The Company agrees (i) without the written consent of the
managing underwriters, not to effect any public or private sale or
distribution of any securities of the Company of the same class as the
securities included in a registration statement filed pursuant to Section
2.1 during the period commencing ten (10) days prior to the closing date of
each underwritten offering made pursuant to such registration statement and
ending on the earlier of (x) the termination of such offering and (y)
ninety (90) days after such closing, to the extent timely notified in
writing by the Investors or the managing underwriters and (ii) to use its
best efforts to cause each holder of privately placed securities purchased
from the Company (other than the Investors) at any time on or after the
date of this Agreement to agree not to effect any public sale or
distribution of any such securities during such period, including a sale
pursuant to Rule 144 under the Securities Act (except as part of such
underwritten offering, if permitted).
2.10 Indemnification.
(a) Indemnification by the Company. In the event of any
registration of Registrable Securities, the Company shall indemnify, defend
and hold harmless the Holder of any Registrable Securities that are covered
by such registration statement, each other Person who participates as an
underwriter in the offering or sale of such securities and each Person who
controls any such Holder or underwriter within the meaning of the
Securities Act, and each of the respective partners, officers, directors,
employees and agents of the foregoing in their respective capacities as
such (the "Indemnitees"), to the full extent lawful, from and against any
and all actions, suits, claims, proceedings, costs, damages, judgments,
amounts paid in settlement and expenses (including, without limitation,
reasonable attorneys' fees and disbursements), whether joint or several
(collectively, a "Loss"), to which any such Indemnitee may become subject
under the Securities Act or any other statute or common law, insofar as any
such Loss may arise out of or be based upon (i) any untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such securities were registered, any preliminary,
final or summary prospectus contained therein, or any amendment or
supplement thereto, or in any filing made in connection with the
qualification of the offering under blue sky or other securities laws of
jurisdictions in which the Registrable Securities are offered ("Blue Sky
Filing"), 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 not misleading or (ii) any violation by the Company of
any federal, state or common law, rule or regulation applicable to the
Company and relating to action required of or inaction by the
-15-
Company in connection with any such registration, and the Company will
reimburse each Indemnitee for any legal or other expenses reasonably
incurred in connection with investigating or defending such Loss; provided,
however, that such indemnification covenant shall not (i) apply to any Loss
arising out of, or based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if such statement or
omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Indemnitee
specifically stating that it is for use in connection with preparation of
the registration statement, any preliminary prospectus or final prospectus
contained in the registration statement, any such amendment or supplement
thereto or any Blue Sky Filing or (ii) inure to the benefit of any
underwriter or Person controlling such underwriter to the extent that any
such Loss arises out of such Indemnitee's failure to send or give a copy of
the final prospectus, as the same may be then supplemented or amended, to
the Person asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the
sale of Registrable Securities to such Person if such statement or omission
was corrected in such final prospectus.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of any Indemnitee and shall survive the
transfer of such securities by any Indemnitee.
(b) Indemnification by the Sellers. As a condition to including
any Registrable Securities in any registration statement filed pursuant to
Section 2.1, 2.2 or 2.3, the Company shall have received an undertaking
from the prospective seller of such Registrable Securities to indemnify,
defend and hold harmless (in the same manner and to the same extent as set
forth in subsection (a) of this Section 2.10) the Company, each director of
the Company, each officer, employee and agent of the Company and each other
Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any untrue statement in, or omission from,
such registration statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein or any Blue Sky Filing, or any
amendment or supplement thereto, if such statement or omission was made in
reliance upon and in conformity with written information furnished to the
Company by such seller specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement. Such indemnity
shall remain in full force and effect, regardless of any investigation made
by or on behalf of the Company or any such director, officer or controlling
person and shall survive the transfer of such securities by such seller. In
no event shall any indemnity paid by any seller to the Company pursuant to
this Section 2.10(b) or otherwise exceed the proceeds received by such
seller in such offering.
(c) Notices of Claims. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim hereunder, such indemnified party shall, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to
the latter of the commencement of
-16-
such action, provided that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its
obligations under this Section 2.10 unless the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, the indemnifying party shall be
entitled to participate in and, unless a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim, to
assume the defense thereof, jointly with any other indemnifying party
similarly notified to the extent that the indemnifying party may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation. In the event that the indemnifying party
advises an indemnified party that it will contest a claim for
indemnification hereunder, or fails, within thirty (30) days of receipt of
any indemnification notice to notify, in writing, such indemnified party of
its election to defend, settle or compromise, at its sole cost and expense,
any action, proceeding or claim (or discontinues its defense at any time
after it commences such defense), then the indemnified party may, at its
option, defend, settle or otherwise compromise or pay such action or claim
with the consent of the indemnifying party, not to be unreasonably
withheld. The indemnified party shall cooperate fully with the indemnifying
party in connection with any negotiation or defense of any such action or
claim by the indemnifying party and shall furnish to the indemnifying party
all information reasonably available to the indemnified party that relates
to such action or claim. The indemnifying party shall keep the indemnified
party fully apprised at all times as to the status of the defense or any
settlement negotiations with respect thereto. If the indemnifying party
elects to defend any such action or claim, then the indemnified party shall
be entitled to participate in such defense with counsel of its choice at
its sole cost and expense. If the indemnifying party does not assume such
defense, the indemnified party shall keep the indemnifying party apprised
at all times as is reasonably practicable as to the status of the defense;
provided, however, that the failure to keep the indemnifying party so
informed shall not affect the obligations of the indemnifying party
hereunder. No indemnifying party shall be liable for any settlement of any
action, claim or proceeding effected without its written consent; provided,
however, that the indemnifying party shall not unreasonably withhold, delay
or condition its consent. No indemnifying party shall without the consent
of the indemnified party (not to be unreasonably withheld), consent to
entry of any judgment or enter into any settlement that does not include as
an unconditional term thereof the giving by the claimant or plaintiff to
such indemnified party of a release from all liability in respect to such
claim or litigation.
(d) Indemnification Payments. The indemnification required by
this Section 2.10 shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when bills are
received or a Loss is incurred.
-17-
(e) Other Rights, Liabilities. The indemnity covenant, contained
herein shall be in addition to (i) any cause of action or similar right of
the indemnified party or others, and (ii) any liabilities the indemnifying
party may be subject to pursuant to law.
2.11 Registration Expenses. All expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
all Registration Expenses, shall be borne by the Company whether or not any
registration statement becomes effective. The Company shall, in any event, pay
its internal expenses (including, without limitation, all salaries and expenses
of its officers and employees performing legal or accounting duties), the
expense of any annual audit, the fees and expenses incurred in connection with
the listing of the securities to be registered on any securities exchange,
rating agency fees and the fees and expenses of any Person, including special
experts, retained by the Company. All underwriting discounts, fees and
commissions applicable to the sale of Registrable Securities shall be borne by
the Holders of such Registrable Securities pro-rata, on the basis of the number
of shares sold in the respective offering.
Notwithstanding anything to the contrary in this Agreement, the Company
shall not be obligated to effect any registration pursuant to this Agreement:
(i) within a period of ninety (90) days following the effective date of a
previous registration of the Company's securities and (ii) if the Company shall
furnish to the Holders of Registrable Securities a certificate signed by the
Chairman of the Board of Directors of the Company stating that in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration to be
effected at such time, in which event the Company shall have the right to defer
the filing of the registration statement for a period of not more than ninety
(90) days after receipt of the request of such Holders under this Agreement;
provided, however, that the Company shall not utilize this right more than once
in any twelve (12) month period.
3. Information Rights. For so long as a Holder holds ten percent (10%) or
more of the Series C Preferred Stock, the Company shall:
(a) as soon as practicable, but in any event within ninety (90)
days after the end of each fiscal year of the Company, deliver to such
Holder an income statement for such fiscal year, a balance sheet of the
Company as of the end of such year, and a statement of cash flows for such
year, such year-end financial reports to be audited and prepared in
accordance with GAAP and setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail. Such
financial statements shall be accompanied by a report and opinion thereon
by independent public accountants of national standing selected by the
Board of Directors of the Company.
(b) as soon as practicable, but in any event within forty five
(45)
-18-
days after the end of each quarter during the fiscal year of the Company
(except for the fourth quarter), deliver to such Holder unaudited financial
statements (or audited financial statements if available), including a
balance sheet, income statement and statement of cash flows for and as of
the end of each such quarter, and for the current fiscal year to date,
including a comparison to plan figures for such period, prepared in
accordance with GAAP; an instrument executed by the Chief Financial Officer
or President of the Company certifying that such financials were prepared
in accordance with GAAP consistently applied with prior practice for
earlier periods (with the exception of footnotes that may be required by
GAAP), and fairly present the financial condition of the Company and its
results of operation for the period specified, subject to year-end
adjustment; and a statement showing the number of shares of each class and
series of capital stock and securities convertible into or exercisable for
shares of capital stock outstanding at the end of the period, the number of
common shares issuable upon conversion or exercise of any outstanding
securities convertible into or exercisable for common shares and the
exchange ratio or exercise price applicable thereto, all in sufficient
detail as to permit the Holder to calculate its percentage equity ownership
in the Company.
(c) as soon as practicable, but in any event within fifteen (15)
days after the end of each month, deliver to such Holder a monthly report
of operations of the Company for and as of the end of such month, including
balance sheets and sources and applications of funds statements for and as
of the end of such month.
(d) as soon as practicable, but in any event within thirty (30)
days prior to the beginning of the Company's fiscal year, furnish such
Holder with a budget and business plan for the next fiscal year, prepared
on a monthly basis, including balance sheets and sources and applications
of funds statements for such months and, as soon as prepared, any other
budgets or revised budgets prepared by the Company. The Company's business
plan shall include three-year projections.
(e) permit such Holder or its representative to visit and inspect
any of the properties of the Company or any of its subsidiaries, to examine
books of account and records of the Company or any of its subsidiaries and
to discuss the affairs, finances and accounts of the Company or any of its
subsidiaries with its officers, all at such reasonable times as may be
requested by such Holder.
4. Amendments and Waivers. This Agreement may not be amended without the
prior written consent of the parties hereto.
5. Registration Rights. The Company shall not grant any right of
registration under the Securities Act relating to any of its shares of capital
stock or other securities to any Person other than pursuant to this Agreement
unless the rights so granted to such other Person are junior to those of the
Investors hereunder and do not limit or restrict the Investors' rights
-19-
hereunder.
6. Nominees for Beneficial Owners. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, such
beneficial owner may, at its election and upon notice to the Company, be treated
as the Holder of such securities for purposes of any request or other action by
any Holder or Holders of securities pursuant to this Agreement or any
determination of any number or percentage of shares of securities held by any
Holder or Holders of securities contemplated by this Agreement. If the
beneficial owner of any Registrable Securities so elects, the Company may
require assurances reasonably satisfactory to it of such owner's beneficial
ownership of such Registrable Securities.
7. Notices. Any notice or demand that is required or provided to be given
under this Agreement shall be deemed to have been sufficiently given and
received for all purposes when delivered by hand, facsimile transmission or
courier, or five (5) days after being sent by certified or registered mail,
postage and charges prepaid, return receipt requested, to the following
addresses:
If to the Company:
INSCI Corp.
Two Xxxxxxxxxxx Xxxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
Attn: Chief Executive Officer
If to the Investors, at the addresses listed on the signature pages hereto.
If to any other Holder of Registrable Securities, at such address set forth in
the Company's records, or with respect to any party hereto, at any other address
designated in writing in accordance with the provisions of this Section 6.
8. Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
successors and assigns. The rights or any portion thereof of the Investors
herein may be assigned by the Investors in their sole discretion (and thereupon
by such assignee) without the consent of the Company, provided that such
assignee agrees in writing to be bound by the terms of this Agreement.
9. Descriptive Headings. The descriptive headings of the sections and
paragraphs of this Agreement are inserted for reference only and shall not limit
or otherwise affect the meaning hereof.
10. Governing Law; Jurisdiction; Venue. This Agreement shall be governed by
the laws of the State of Delaware without regard to its conflicts of laws
principles. The state and federal courts of the State of Delaware shall have
exclusive jurisdiction to hear and determine any claims or disputes between the
Investors and the other party or parties hereto pertaining directly or
indirectly to this Agreement and all documents, instruments and agreements
executed pursuant hereto, or to any matter arising therefrom (unless otherwise
-20-
expressly provided for therein). To the extent permitted by law, each party
hereby expressly submits and consents in advance to such exclusive jurisdiction
in any action or proceeding commenced in any of such courts, and agrees that
service of such summons and complaint or other process or papers may be made by
registered or certified mail addressed to such party at the address to which
notices are to be sent pursuant to this Agreement. To the extent permitted by
law, should any party, after being so served fall to appear or answer to any
summons, complaint, or process or papers so served within thirty (30) days after
the mailing thereof, such party shall be deemed in default and an order and/or
judgment may be entered by such Investors against such party as demanded or
prayed for in such summons, complaint, process or papers. The exclusive choice
of forum set forth in this Section 9 shall not be deemed to preclude the
enforcement of any judgment obtained in such forum or the taking of any action
to enforce the same in any other appropriate jurisdiction.
11. Entire Agreement. This Agreement constitutes the entire agreement among
the parties with respect to the subject matter hereof.
12. Counterparts. This Agreement may be executed by facsimile and in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
-21-
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart signature page to the Amended and Restated Registration Rights
Agreement as of the date first written above.
INSCI Corp.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President, Chief Executive Officer,
Chief Financial Officer and Secretary
-22-
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart signature page to the Amended and Restated Registration Rights
Agreement as of the date first written above.
SELWAY PARTNERS, LLC
By: /s/ Xxxxx Xxxxx
-------------------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
Address for Notices: Selway Partners, LLC
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
-23-
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart signature page to the Amended and Restated Registration Rights
Agreement as of the date first written above.
SELWAY MANAGEMENT, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------------------
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
Address for Notices: Selway Management, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxx
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
-24-
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart signature page to the Amended and Restated Registration Rights
Agreement as of the date first written above.
SCP PRIVATE EQUITY PARTNERS II, L.P.
By: SCP Private Equity II General Partner, L.P.,
its General Partner
By: SCP Private Equity II LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: a Manager
Address for Notices: SCP Private Equity Partners II, L.P.,
000 Xxxxx Xxxx Xxxxx, Xxxxxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: General Counsel
With a copy to: Xxxxxxx X. Xxxx, Esq.
Xxxx Xxxxx LLP
Centre Square West
0000 Xxxxxx Xx., 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
-25-
IN WITNESS WHEREOF, the undersigned has executed and delivered this
counterpart signature page to the Amended and Restated Registration Rights
Agreement as of the date first written above.
CIP CAPITAL L.P.
By: /s/ Xxxxxx X. Carry
-------------------------------------------------
Name: Xxxxxx X. Carry
Title: President, CIP Capital Management, Inc.
General Partner
Address for Notices: CIP Capital L.P.
000 Xxxxx Xxxx Xxxxx, Xxxxxxxx 000
Xxxxx, Xxxxxxxxxxxx 00000
Facsimile:
With a copy to:
-26-
