REGISTRATION RIGHTS AGREEMENT
Exhibit 10.17
THIS REGISTRATION RIGHTS AGREEMENT dated as of June 11, 2007 by and among DIGITAL RECORDERS,
INC., a North Carolina corporation (the “Company”) and (the “Holder”).
The parties agree as follows:
Section 1. Definitions. For purposes of this Agreement:
(a) “Series J Convertible Preferred Stock” means the Company’s Series J Convertible
Preferred Stock with a liquidating value of $5,000 per share;
(b) “Registrable Securities” means ___ shares of Series J Convertible Preferred
Stock to be issued to the Holder upon closing of that certain Stock Purchase Agreement of
even date (the “Agreement”; certain terms not defined herein but used herein are used as
defined in the Agreement);
(c) “register” and “registration” refer to a registration of the Registrable
Securities effected by filing a registration statement or similar document pursuant to the
Securities Act of 1933, as amended (the “Act”) and the declaring or ordering of
effectiveness of such registration statement; and
(d) The “Company” means Digital Recorders, Inc., a North Carolina corporation.
Section 2. Demand Registration.
(a) If at any time the Company receives a written request from the Holder that the
Company file a registration statement under the Act covering the registration of Registrable
Securities held by him, then the Company shall, subject to the limitations of this Section
2, use its best efforts to, within six months of the date of such request, effect the
registration under the Act of all Registrable Securities and will keep such registration
statement effective for a minimum period of six (6) months thereafter. The Company shall be
obligated
to effect only one (1) registration pursuant to this Section 2(a).
(b) If the Holder intends to distribute the Registrable Securities covered by his
request by means of an underwriting, he shall so advise the Company as a part of his request
made pursuant to this Section 2. The Holder shall (together with the Company as provided in
Section 3) enter into an underwriting agreement in customary form with a mutually acceptable
underwriter or underwriters.
Section 3. “Piggyback” Rights. For a period of one (1) year from June 11, 2007, and
if (but without any obligation to do so) the Company proposes to register any of its securities
under the Act in connection with a public offering of such common stock for cash proceeds payable
in whole or in part to the Company (other than with respect to a Registration Statement filed on
Form S-8 or Form S-4 or such other similar form then in effect under the Securities Act), the
Company shall, at such time, subject to the provisions of Section 6 and 7 hereof and upon request
of the Holder cause to be registered under the Act all of the Registrable Securities which the
Holder requests be registered; provided, however, if the managing underwriter of the public
offering of shares proposed to be registered by the Company advises the Holder in writing that
marketing factors require a limitation of the number of shares to be underwritten, then the number
of shares of Registrable Securities of the Holder that may be included in the underwriting shall be
so limited prorata. Such “piggyback rights” shall expire on the registration and sale of the
Registrable Securities pursuant to Section 2 above or upon the sale of the Registrable Securities
hereunder.
Section 4. Registration Procedure. Whenever required under this Agreement to effect
the registration of any Registrable Securities, the Company shall, as expeditiously as is
reasonably possible:
(a) Furnish to the Holder of the Registrable Securities covered by such registration
statement such number of copies of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as he may reasonably
request in order to facilitate the disposition of the Registrable Securities owned by him.
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(b) In the event of any underwritten public offering, enter into and perform its
obligations under an underwriting agreement, in usual and customary form, with the managing
underwriter of such offering. The Holder participating in such underwriting shall also
enter into and perform his obligations under such agreement.
(c) Notify the Holder of Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto covered by such registration
statement is required to be delivered under the Act, of the happening of any event as a
result of which the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading in the light
of the circumstances then existing.
Section 5. Furnish Information. The Holder shall promptly furnish to the Company in
writing such reasonable information regarding the Holder, the Registrable Securities held by the
Holder, and the intended method of disposition of such securities as shall be required to effect
the registration of his Registrable Securities.
Section 6. Expenses of Registration. All of the foregoing expenses relating to the
Registrable Securities incurred in connection with registration, filing or qualification pursuant
to this Agreement, including (without limitation) all registration, filing and qualification fees,
printers’ bills, mailing and delivery expenses, accounting fees, and the fees and disbursements of
counsel for the Company, but excluding underwriting discounts or fees, shall be borne by the
Company.
Section 7. Indemnification and Contribution. In the event any Registrable Securities
are included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify and hold harmless the
Holder, the officers and directors of each Holder, any underwriter (as defined in the Act)
for such holder, and each person, if any, who controls such Holder or underwriter within the
meaning of the Act or the Securities Exchange Act of 1934 (the “Exchange Act”), against any
losses, claims, damages, or liabilities (joint or several) to which they may become subject
under the Act, the Exchange Act or other federal or
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state law, insofar as such losses, claims, damages, or liabilities (or actions in respect
thereto) arise out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or supplements thereto,
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 the Company will reimburse each such Holder, officer or director,
underwriter or controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim, damage, liability,
or action; provided however, that the indemnity agreement contained in this Section 7(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company (which consent
shall not be unreasonably withheld), nor shall the Company be liable in any such case for
any such loss, claim, damage, liability, or action to the extent that it arises out of or is
based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, preliminary prospectus or final prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written information
furnished expressly for use in connection with such registration by any such Holder,
underwriter or controlling person; provided, further, however, that if any losses, claims,
damages or liabilities arise out of or are based upon any untrue statement, alleged untrue
statement, omission or alleged omission contained in any preliminary prospectus, and made in
reliance upon and in conformity with written information furnished by such Holder expressly
for use therein, which did not appear in the final prospectus, the Company shall not have
any such liability with respect thereto to such Holder, any person who controls such Holder
within the meaning of the Act, or any director of such Holder, if such Holder delivered a
copy of the preliminary prospectus to the person alleging such losses, claims, damages or
liabilities and failed to deliver a copy of the final prospectus, as amended or supplemented
if it has been amended or supplemented, to such person at or prior to the written
confirmation of the sale to such person, provided that such Holder had an obligation to
deliver a copy of the final prospectus to such person.
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(b) To the extent permitted by law, each selling Holder will indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed the
registration statement, each person, if any, who controls the Company within the meaning of
the Act, any underwriter and any other Holder selling securities in such registration
statement or any of its directors or officers or any person who controls such Holder or
underwriter against any losses, claims, damages or liabilities, joint or several) to which
the Company or any such director, officers, controlling person, or underwriter or
controlling person, or other such Holder or director, officer or controlling person may
become subject, under the Act, the Exchange Act or other federal or state law, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto) arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact contained
in such registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, 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, if the untrue statement
or omission or alleged untrue statement or omission in respect of which such loss, claim,
damage or liability is asserted was made in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with such registration;
and each such Holder will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, controlling person, underwriter or controlling
person, or other Holder, officer, director, or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action; provided
however, that the indemnity agreement contained in this Section 7(b) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action, if such
settlement is effected without the consent of the Holder (which consent shall not be
unreasonably withheld); provided, further that the maximum liability of any selling Holder
under this Section 7(b) in regard to any registration statement shall in no event exceed the
amount of the proceeds received by such selling Holder from the sale of securities under
such registration statement; provided, further however, that if any losses, claims, damages
or liabilities arise out of or are based
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upon an untrue statement, alleged untrue statement, omission or alleged omission contained
in any preliminary prospectus which did not appear in the final prospectus, such seller
shall not have any such liability with respect thereto to the Company, any person who
controls the Company within the meaning of the Act, any officer of the Company who signed
the registration statement or any director of the Company, if the Company delivered a copy
of the preliminary prospectus to the person alleging such losses, claims, damages or
liabilities and failed to deliver a copy of the final prospectus, as amended or supplemented
if it has been amended or supplemented, to such person at or prior to the written
confirmation of the sale to such person, provided that the Company had an obligation to
deliver a copy of the final prospectus to such person.
(c) Promptly after receipt by an indemnified party under this Section 7 of notice of
the commencement of any action (including any governmental action), such indemnified party
will, if a claim in respect thereof is to be made against any indemnifying party under this
Section 7, deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party similarly notified,
to assume the defense thereof with counsel mutually satisfactory to the parties. An
indemnified party shall have the right to retain its own counsel, however, the fees and
expenses of such counsel shall be at the expense of the indemnified party, unless (i) the
employment of such counsel has been specifically authorized in writing by the indemnifying
party, (ii) the indemnifying party has failed to assume the defense and employ counsel, or
(iii) the named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available to it which
are different from or additional to those available to the indemnifying party (in which case
the indemnifying party shall not have the right to assume the defense of such action on
behalf of such indemnified parry, it being understood, however, that the indemnifying party
shall not, in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the reasonable
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fees and expenses of more than one separate firm of attorneys for all indemnified parties).
The failure to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party under this Agreement.
(d) If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities or actions in respect thereof referred to therein, then each indemnifying
party shall in lieu of; indemnifying such indemnified party contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages, liabilities
or actions in such proportion as is appropriate to reflect the relative fault of the
Company, on the one hand, and selling Holder, on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages, liabilities or
actions as well as any other relevant equitable considerations, including the failure to
give any required notice. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company, on the one hand, or by such selling Holder on the other, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The parties hereto acknowledge and agree that it would not be just
and equitable if contribution pursuant to this subparagraph (d) were determined by prorata
allocation (even if all of the selling Holder were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the equitable
considerations referred to above in this subparagraph (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or actions in
respect thereof referred to above in this subparagraph (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
subparagraph (d), the amount the selling Holder shall be required to contribute shall not
exceed the amount, if any, by which the total price at which the securities sold by each of
them were offered to the public exceeds the amount of any damages which they would have
otherwise been required to pay by reason of such untrue or
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alleged untrue statement or omission or alleged omission, or other violation of law. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) shall be entitled to contribution from any person who was not guilty of fraudulent misrepresentation.
Section 8. Miscellaneous.
(a) Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the Company and to the Holder and their respective heirs, personal
representatives, successors and assigns.
(b) Notices. Except as otherwise provided herein, any notice, consent or
request to be given in connection with any term or provision of this Agreement shall be
deemed to have been given sufficiently if sent by hand, registered or certified mail,
postage prepaid, facsimile transmission or courier (next day delivery), to the Company or to
the Holder at their respective addresses as provided on or about the date hereof.
(c) Integration. This Agreement contains the entire agreement between the
parties with respect to the transactions contemplated hereby and no party shall be bound by,
nor shall any party be deemed to have made, any covenants, representations, warranties
undertakings or agreements except those contained in such entire Agreement. The section and
paragraph headings contained in this Agreement are for the reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.
(d) Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which together shall constitute
one and the same agreement.
(e) Amendment. This Agreement may be amended, changed, waived or terminated
only in writing signed by each of the parties.
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IN WITNESS WHEREOF, this Agreement has been executed effective as of the date first above
written.
| DIGITAL RECORDERS, INC. | ||||||
| By | ||||||
| President | ||||||
| HOLDER: | ||||||
| (SEAL) | ||||||
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