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EXHIBIT 4.3
1999 REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), made as of this
10th day of September, 1999, by and among the shareholders listed on the
signature pages hereto (collectively referred to hereinafter as the "Investors")
and T/R Systems, Inc., a Georgia corporation (the "Company");
W I T N E S E T H:
WHEREAS, the Investors own outstanding shares of the Company's common
stock or shares of Series D Preferred Stock convertible into the Company's
common stock;
WHEREAS, the Investors desire to enter into an agreement providing
certain registration rights and providing for certain lock-up provisions in the
event of a public offering of the Company's common stock; and
WHEREAS, the Company desires to enter into an agreement regulating the
relative rights of the Investors and the Company in the event of a public
offering of the Company's common stock;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do agree to enter into the agreements contained
hereinbelow as follows:
1. REGISTRATION RIGHTS.
1.1 Certain Definitions. As used in this Agreement, in addition to the
terms defined above, the following terms shall have the following respective
meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean common stock, par value $.01 per share, of
the Company.
"Holders" shall mean the Investors and any other person holding
Registrable Securities to whom these registration rights have been transferred
pursuant to Section 1.9 hereof.
"Initial Public Offering" shall mean the effectiveness of the first
registration statement under the Securities Act that covers the offer and sale
to the public of Common Stock by the Company.
"Other Shareholders" shall mean persons other than Holders who, by
virtue of agreements with the Company, are entitled to include their securities
in a registration effected pursuant to this Agreement.
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The terms "register," "registered" and "registration" refer to the
effectiveness of a registration statement prepared and filed in compliance with
the Securities Act.
"Registrable Securities" shall mean all shares of Common Stock held by
the Holders and all shares of Common Stock issuable upon conversion of the
Series D Preferred Stock by the Holders, together with any shares of Common
Stock issued with respect thereto upon any stock split, stock dividend,
recapitalization or similar event.
"Registration Expenses" shall mean all expenses incurred by the Company
in complying with Section 1.2 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, reasonable fees and expenses of a single counsel for
the selling Holders, state "blue sky" fees and expenses, and accountants'
expenses, including without limitation any special audits incident to or
required by any such registration (but excluding the compensation of regular
employees of the Company, which shall be paid in any event by the Company and
any additional disbursements of counsel for the selling Holders, which shall be
paid by such selling Holders).
"Securities Act" shall mean the federal Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect at the
time.
"Securities Exchange Act" shall mean the federal Securities Exchange
Act of 1934, as amended, or any similar federal statute and the rules and
regulations of the Commission promulgated thereunder, all as the same shall be
in effect at the time.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and any other
securities of the Company being sold in the same registration as the Registrable
Securities by the Company or Other Shareholders.
"Series D Preferred Stock" shall mean the Company's Series D Preferred
Stock, par value $0.01 per share.
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1.2 Company Registration.
1.2.1 If the Company shall determine to register any of its
securities in connection with the public offering of such securities solely for
cash on a form that would permit the registration of the Registrable Securities
other than on Form X-0, Xxxx X-0 or another form not available for registering
the Registrable Securities for sale to the public, the Company shall promptly
give to each Holder written notice of such registration (a "Piggyback
Registration"), which shall include a list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the applicable blue
sky or other state securities laws; and include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests, made by any Holder or Holders within fifteen (15)
days after receipt of such written notice from the Company, subject to the
underwriter limitations, if any, described in Subsection 1.2.3 hereof. The
Company shall have the right to withdraw or cease to prepare or file any
registration statement for any offering referred to in this Subsection 1.2.1
without any obligation or liability to any Holder.
1.2.2 Number of Piggyback Registrations. Subject to the
underwriter limitations, if any, described in Subsection 1.2.3 below, each
Holder shall be entitled to have its Registrable Securities included in (i) the
Initial Public Offering and (ii) in an unlimited number of Piggyback
Registrations pursuant to this Section 1.2 until such time as the number of
Registrable Securities held by any such Holder does not exceed one percent (1%)
of the shares outstanding of the Company as shown by the most recent report or
statement published by the Company and filed with the Commission.
1.2.3 Underwriting. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Subsection 1.2.1 hereof. In such event the right of any Holder to
registration pursuant to Subsection 1.2.1 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting shall
(together with the Company and Other Shareholders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for underwriting by the
Company. Notwithstanding any other provision of this Section 1.2, if the
underwriter reasonably determines that marketing factors require a limitation on
the number of shares to be underwritten, the number of shares that may be
included in the registration shall be allocated first to each holder of the
Company's stock electing to participate in the registration that is a party to
that certain Second Amended and Restated Registration Rights Agreement dated as
of March 31, 1997, as amended by that certain First Amendment to Stock Purchase
Agreement, Second Amended and Restated Shareholders' Agreement and Second
Amended and Restated Registration Rights Agreement dated as of June 20, 1997,
and then among the Holders and Other Shareholders requesting registration of
securities in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities and other securities that such Holders had requested to
be included in such registration. The Company shall advise all holders of
securities requesting registration as to the number of shares or securities that
may be included in the registration and underwriting as allocated in the
foregoing manner. No such reduction shall be made with respect to securities
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offered by the Company for its own account. If any Holder or Other Shareholder
disapproves of the terms of any such underwriting, such person may elect to
withdraw therefrom by written notice to the Company and the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall also be withdrawn from such registration.
1.3 Expenses of Registration. All Registration Expenses incurred
in connection with any registration, qualification or compliance pursuant to
this Agreement shall be borne by the Company; and all Selling Expenses shall be
borne by the Holders, the Other Shareholders of the securities so registered and
the Company, to the extent of securities registered on its behalf, pro rata on
the basis of the number of their shares so registered; provided, however, that
if any jurisdiction in which the securities shall be qualified shall require
that expenses incurred in connection with the qualification of the securities in
that jurisdiction be borne by the selling shareholders, then such expenses shall
be payable by the selling shareholders pro rata to the extent required by such
jurisdiction.
1.4 Registration Procedures. In the case of each registration
effected by the Company pursuant to this Agreement, the Company shall keep each
Holder advised in writing as to the initiation of each registration and as to
the completion thereof. At its expense the Company shall use its best efforts
to:
1.4.1 keep such registration effective for a period of one
hundred eighty (180) days or until the distribution described in the
registration statement relating thereto has been completed, whichever first
occurs; and
1.4.2 furnish such number of prospectuses and other
documents incident thereto as a Holder from time to time may reasonably request.
1.5 Indemnification.
1.5.1 With respect to each Holder whose securities have been
registered pursuant to this Agreement, the Company shall indemnify such Holder,
each of such Holder's officers, directors and partners, and each person
controlling (as defined in Subsection 1.5.4 below) such Holder and each of such
controlling person's officers, directors and partners, and shall also indemnify
each underwriter, if any, and each person who controls any underwriter, against
all claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any prospectus, offering circular or other document
(including any related registration statement, notification or the like)
incident to any such registration, qualification or compliance, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and shall reimburse each such Holder and each person controlling
such Holder, and each of such controlling person's officers, directors and
partners, each of its officers, directors and partners, each such underwriter,
and each person who controls such underwriter, for any legal and other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action; provided, however, that the Company
shall not be liable in
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any such case to the extent that any such claim, loss, damage, liability or
expense arises out of or is based upon written information furnished to the
Company by the Holder or on behalf of the Holder by the officers, directors or
partners of the Holder seeking to be indemnified, where such information is
stated to be specifically for use in such prospectus, offering circular or
related document.
1.5.2 Each Holder and Other Shareholder shall, if securities
held by him or it are included among the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls (as defined in Subsection 1.5.4 below) the Company or such underwriter,
and each other such Holder and Other Shareholder and each of such controlling
person's officers, directors and partners, and each person controlling such
Holder or Other Shareholder and each of such controlling person's officers,
directors and partners, against all claims, losses, damages and liabilities (or
actions in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any 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 shall reimburse
the Company and such Holders, Other Shareholders, directors, officers, partners,
persons, underwriters and control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder or
Other Shareholder specifically for use therein; provided, however, that the
obligations of such Holder or Other Shareholder hereunder shall be limited to an
amount equal to the proceeds to such Holder or Other Shareholder of securities
sold as contemplated herein.
1.5.3 Each party entitled to indemnification under this
Section 1.5 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not be withheld unreasonably), and the Indemnified Party
may participate in such defense at such Indemnified Party's expense. The failure
of any Indemnified Party to give notice as provided herein shall relieve the
Indemnifying Party of its obligations under this Section 1.5 only if such
failure is prejudicial to the ability of the Indemnifying Party to defend such
action, and such failure shall in no event relieve the Indemnifying Party of any
liability that he or it may have to any Indemnified Party otherwise than under
this Section 1.5. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement 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 with respect to such claim or
litigation, provided that such unconditional release may be subject to a
parallel release of
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a claimant or plaintiff by such Indemnified Party from all liability in respect
of claims or counterclaims asserted by such Indemnified Party.
1.5.4 For purposes of this Section 1.5, the term "control"
shall have the meaning assigned thereto under the Securities Act.
1.6 Information by Holders and Other Shareholders. Each Holder or Other
Shareholder of securities included in any registration shall furnish to the
Company such information regarding such Holder or Other Shareholder and the
distribution proposed by such Holder or Other Shareholder as the Company may
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
1.7 Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission that may permit the sale of the
Common Stock to the public without registration, the Company shall:
1.7.1 make and keep public information available as those
terms are understood and defined in Rule 144 promulgated by the Commission under
the Securities Act ("Rule 144"), at all times after ninety (90) days following
the Initial Public Offering;
1.7.2 file with the Commission in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Securities Exchange Act at any time after it has become subject to the reporting
requirements thereunder; and
1.7.3 so long as any Holder owns any securities constituting
or representing Registrable Securities, furnish to such Holder forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 (at any time after ninety (90) days following
the Initial Public Offering), and of the Securities Act and the Securities
Exchange Act (at any time after it has become subject to the reporting
requirements thereunder), a copy of the most recent annual or quarterly report
of the Company, and such other reports and documents so filed by the Company as
such Holder may reasonably request in availing itself of any rule or regulation
of the Commission allowing such Holder to sell any such securities without
registration.
1.8 Transfer of Registration Rights. The rights to cause the Company to
register securities of the Company under Section 1.2 hereof may be assigned by
any Holder to any transferee of Registrable Securities together with the
securities being transferred, provided that in each case the Company is given
written notice, at the time or within a reasonable time after said transfer,
stating the name and address of said transferee and identifying the securities
with respect to which such registration rights are being assigned. No such
assignment shall be effective unless the transferee shall be required, as a
condition to such transfer, to agree in writing that he or it will receive and
hold such securities subject to the provisions of this Article 1.
1.9 "Market Stand-Off" Agreement. If requested by the Company upon the
recommendation of the Board of Directors of the Company and an underwriter of
Common Stock of the Company, the Holders shall not sell or otherwise transfer or
dispose of any Common Stock of the Company held by them during the one hundred
eighty (180)-day period following the
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effective date of a registration statement of the Company filed under the
Securities Act, provided that Other Shareholders selling securities pursuant to
such registration statement and substantially all of the officers and directors
of the Company enter into similar agreements.
Such agreement shall be in writing in form satisfactory to the Company
and such underwriter. The Company may impose stop-transfer instructions with
respect to the shares (or securities) subject to the foregoing restriction until
the end of said one hundred eighty (180)-day period.
2. MISCELLANEOUS.
2.1 Governing Law. This Agreement shall be governed and construed under
the laws of the State of Georgia, notwithstanding the fact that one or more
parties to this Agreement may be a resident of a different state.
2.2 Successors and Assigns. The rights and obligations set forth in
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective legal representatives, successors and assigns.
2.3 Captions. The captions of the several sections and paragraphs of
this Agreement are included for reference only and shall not limit or otherwise
affect the meaning thereof.
2.4 Amendments. Neither this Agreement nor any term of provision hereof
may be amended, waived, discharged or terminated except in writing signed by all
parties to this Agreement.
2.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute but one and the same instrument.
[SIGNATURES APPEAR ON SUCCEEDING PAGES]
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Title: Vice President, Chief
Financial Officer
and Secretary
INVESTORS:
By:
-------------------------------
Name:
-----------------------------
(Please Print)
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------
Title:
----------------------------
INVESTORS:
KYOCERA CORPORATION
By: /s/ Xxxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxxx
-----------------------------
Executive Vice President
(Please Print)
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------
Title:
----------------------------
INVESTORS:
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
(Please Print)
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------
Title:
----------------------------
INVESTORS:
By: /s/ Xxx X. Xxxx
-------------------------------
Name: Xxx X. Xxxx
-----------------------------
(Please Print)
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------
Title:
----------------------------
INVESTORS:
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
-----------------------------
(Please Print)
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------
Title:
----------------------------
INVESTORS:
By: /s/ Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------
(Please Print)
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------
Title:
----------------------------
INVESTORS:
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxx
-----------------------------
(Please Print)
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------------
Title:
----------------------------------
INVESTORS:
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Guardian for Xxxx Xxxxxxxxx Xxxxxxx
-----------------------------------
(Please Print)
/s/ Xxxx Xxxxxxxxx Xxxxxxx
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------
Title:
----------------------------
INVESTORS:
By: /s/ Xxxx X. Xxxxxxx, Xx.
-------------------------------
Name: Xxxx X. Xxxxxxx, Xx.
-----------------------------
(Please Print)
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------
Title:
----------------------------
INVESTORS:
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
-----------------------------
(Please Print)
/s/ Xxxx Xxxxxxx Xxxxxxx, Xx.
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------
Title:
----------------------------
INVESTORS:
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
-----------------------------
(Please Print)
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------
Title:
----------------------------
INVESTORS:
By: /s/ Xxxxxxxx Xxxx Xxxx
-------------------------------
Name: Xxxxxxxx Xxxx Xxxx
-----------------------------
(Please Print)
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------
Title:
----------------------------
INVESTORS:
By: /s/ Xxxxxx X. Xxx
-------------------------------
Name: Xxxxxx X. Xxx
-----------------------------
(Please Print)
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IN WITNESS WHEREOF, the parties have executed this 1999 Registration
Rights Agreement on the date first written above.
THE COMPANY:
T/R SYSTEMS, INC.
By:
-------------------------------------
Title:
----------------------------------
INVESTORS:
By: /s/ Xxxxxx X. Xxx /s/ Xxxxxx X. Xxx
-------------------------------------
Name: Xxxxxx X. Xxx Xxxxxx X. Xxx
-----------------------------------
(Please Print)
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