REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of
this 18th day of October, 2000, by and among Digital:Convergence Corporation,
a Delaware corporation (the "COMPANY") and NeoMedia Technologies, Inc. (the
"INVESTOR").
RECITALS
WHEREAS, the Investor has been issued 1,415,760 shares (the "INITIAL
INVESTOR SHARES") of common stock, $0.01 par value per share (the "COMMON
STOCK"), of the Company;
WHEREAS, the Investor and the Company have entered into a License
Agreement, dated as of even date herewith (the "LICENSE AGREEMENT");
WHEREAS, pursuant to Section 3.5 of the License Agreement, the Company
may issue additional shares of the Common Stock to the Investor (all such
shares, the "ADDITIONAL INVESTOR SHARES," and, together with the Initial
Investor Shares, the "INVESTOR SHARES");
WHEREAS, the Investor, and the Company desire to be granted and to
grant the rights created herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the undersigned parties
hereto agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, 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 the Common Stock, $0.01 par value per
share, of the Company, as constituted as of the date of this Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the
time.
"REGISTRATION EXPENSES" shall mean the expenses so described in
SECTION 4.
"RESTRICTED STOCK" shall mean the Investor Shares, excluding any
such shares of Common Stock which have (a) been registered under the
Securities Act pursuant to an effective registration statement filed
thereunder and disposed of in accordance with the
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registration statement covering them, (b) been sold, transferred or
disposed pursuant to Rule 144 under the Securities Act or otherwise or
(c) ceased to be outstanding.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the
time.
"SELLING EXPENSES" shall mean the expenses so described in
SECTION 4.
2. INCIDENTAL REGISTRATION. If the Company at any time after the
Company's first firm commitment underwritten public offering proposes to
register any of its securities under the Securities Act for sale to the
public, whether for its own account or for the account of other security
holders or both (except with respect to registration statements on Forms X-0,
X-0 or another form not available for registering the Restricted Stock for
sale to the public), each such time it will give written notice as promptly
as reasonably practicable to the Investor of its intention so to do. Upon
the written request of the Investor, received by the Company within 30 days
after the receipt of any such notice, to register any of its Restricted
Stock, the Company will use its best efforts to cause the Restricted Stock as
to which registration shall have been so requested to be included in the
securities to be covered by the registration statement proposed to be filed
by the Company, all to the extent requisite to permit the sale or other
disposition by the Investor of such Restricted Stock so registered. In the
event that any registration pursuant to this SECTION 2 shall be, in whole or
in part, an underwritten public offering of Common Stock and the managing
underwriter advises the Company that inclusion of all such Restricted Stock
would adversely affect the marketing of the offering, the Company shall
allocate the shares of Common Stock to be included in such registration as
follows: (A) first, to the person(s) who initiated such registration for all
securities requested to be offered by such person(s), (B) second, to the
Investor and to any other holders of "piggyback" registration rights
requesting inclusion, pro rata on the basis of the number of shares of
Restricted Stock and/or Common Stock requested to be included in the
registration, (C) third, to the extent of any remaining shares to be included
in the registration, to the Company if the Company did not initiate such
registration for the sale of securities for its own account, and (D) fourth,
to the extent of any remaining shares to be included in the registration, to
all other persons requesting shares of Common Stock to be included in the
registration, pro rata on the basis of the number of shares of Common Stock
requested to be included in the registration. Notwithstanding the foregoing
provisions, the Company may withdraw or cease proceeding with any
registration statement referred to in this SECTION 2 without thereby
incurring any liability to the Investor.
2A. REGISTRATION ON FORM S-3. The Company shall use its reasonable
best efforts to qualify for registration on Form S-3 as soon as legally
possible and, thereafter, to maintain such qualification. If at any time
after the Company's first firm commitment underwritten public offering (a)
the Investor requests that the Company file a registration statement on Form
S-3 or any successor form thereto for a public offering of all or any portion
of the shares of Restricted Stock held by the Investor, the aggregate
proposed offering price of which is not less than $10,000,000 for any such
registration, and (b) the Company is a registrant entitled to use Form S-3 or
any successor form thereto to register such shares for secondary sales, then
the Company
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shall use its best efforts to register under the Securities Act on Form S-3
or any successor thereto for public sale in accordance with the method of
disposition specified in such notice, the number of shares of Restricted
Stock specified in such notice. Notwithstanding the immediately preceding
sentence, the required dollar amount for the aggregate proposed offering
price shall be reduced from $10,000,000 to $7,000,000 immediately, and
without further action by any of the parties hereto, upon the receipt by the
Company of the requisite consent to such reduction from the parties to the
Amended and Restated Registration Rights Agreement, dated as of April 26,
2000, by and among the Company and the securityholders party thereto. There
shall be no limitation on the number of registrations on Form S-3 which may
be requested and obtained under this SECTION 2A; PROVIDED, HOWEVER, that in
the event that the Company has already effected a registration on Form S-3
pursuant to this SECTION 2A during any 12 month period, any additional
registration(s) on Form S-3 requested pursuant to this SECTION 2A during such
12 month period shall be at the expense of the Investor.
If the method of disposition specified in such notice shall be an
underwritten public offering, the Investor may designate the managing
underwriter(s) of such offering, subject to the approval of the Company,
which approval shall not be unreasonably withheld or delayed.
The Company's obligation to register Restricted Stock pursuant to
SECTION 2A shall not be deemed satisfied in respect of any registration: (i)
unless a registration statement covering at least 85% of the shares of
Restricted Stock specified in notice received as aforesaid, for sale in
accordance with the method of disposition specified by the Investor, shall
have become effective, (ii) if after a registration statement has become
effective, such registration is interfered with by any stop order, injunction
or other order or requirement of the Commission or other governmental agency
or court for any reason, resulting in a failure to consummate the offering of
Restricted Stock offered thereby, (iii) if after a registration statement has
become effective, the offering of Restricted Stock offered thereby is not
consummated due to factors beyond the control of the Investor, including,
without limitation, in the context of a proposed firm commitment
underwriting, the fact that the underwriters have advised the Investor that
such Restricted Stock cannot be sold at a net price equal to or above the net
price anticipated at the time of filing of the preliminary prospectus, or
(iv) if the conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such registration are
not satisfied through no fault of the Investor. The Company shall be
entitled to include in any registration statement referred to in this SECTION
2A, for sale in accordance with the method of disposition specified by the
Investor, shares of Common Stock to be sold by the Company for its own
account. In the event that any registration pursuant to this SECTION 2A
shall be, in whole or in part, an underwritten public offering of Common
Stock and the managing underwriter advises the Company that inclusion of all
such Restricted Stock would adversely affect the marketing of the offering,
the Company shall allocate the shares of Common Stock to be included in such
registration as follows: (A) first, to the Investor, (B) second, to the
extent of any remaining shares to be included in the registration, to holders
of "piggyback" registration rights requesting inclusion, pro rata on the
basis of the number of shares of Common Stock requested to be included in the
registration, (C) third, to the extent of any remaining shares to be included
in the registration, to the Company, and (D) fourth, to the extent of any
remaining shares to be included in the registration, to all other persons
requesting shares of Common Stock
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to be included in the registration, pro rata on the basis of the number of
shares of Common Stock requested to be included in the registration.
3. REGISTRATION PROCEDURES. If and whenever the Company is required
by the provisions of SECTION 2 OR SECTION 2A to effect the registration of
any shares of Restricted Stock under the Securities Act, the Company will, as
expeditiously as possible:
(a) prepare and, within 90 days after the end of the period
within which requests for registration may be given to the Company or in any
event as soon thereafter as possible, file with the Commission a registration
statement with respect to such securities and use its best efforts to cause
such registration statement to become and remain effective for the period of
the distribution contemplated thereby (determined as hereinafter provided),
PROVIDED that, before filing such registration statement or any amendments
thereto, the Company will furnish copies of all such documents proposed to be
filed to counsel for the Investor;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for the period specified in paragraph (a) above and comply with the
provisions of the Securities Act with respect to the disposition of all
Restricted Stock covered by such registration statement in accordance with
the sellers' intended method of disposition set forth in such registration
statement for such period;
(c) furnish to the Investor and to each underwriter, if any,
such number of copies of the registration statement and of each amendment and
supplement thereto (in each case including all exhibits) and the prospectus
included therein (including each preliminary prospectus) as such persons
reasonably may request in order to facilitate the public sale or other
disposition of the Restricted Stock covered by such registration statement;
(d) use its commercially reasonable efforts to register or
qualify the Restricted Stock covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the Investor or, in
the case of an underwritten public offering, the managing underwriter
reasonably shall request and to keep such registrations or qualifications in
effect for so long as such registration statement remains in effect, and take
any other action which may be reasonably necessary or advisable to enable the
Investor and the underwriter to consummate the disposition in such
jurisdictions of the securities; PROVIDED, HOWEVER, that the Company shall
not for any such purpose be required to qualify generally to transact
business as a foreign corporation in any jurisdiction where it is not so
qualified or to consent to general service of process in any such
jurisdiction;
(e) use its best efforts to list the Restricted Stock covered
by such registration statement with any securities exchange on which the
Common Stock of the Company is then listed;
(f) promptly notify the Investor and each underwriter under
such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the
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Securities Act, of the happening of any event of which the Company has
knowledge as a result of which the prospectus contained 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 light of the circumstances
then existing, and at the request of the Investor promptly prepare and
furnish to the Investor and to each underwriter, if any, a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(g) if the offering is underwritten and at the request of the
Investor, use its best efforts to furnish on the date that Restricted Stock
is delivered to the underwriters for sale pursuant to such registration: (i)
an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters and to the
Investor, stating that such registration statement has become effective under
the Securities Act and that (A) to the knowledge of such counsel, no stop
order suspending the effectiveness thereof has been issued and no proceedings
for that purpose have been instituted or are pending or contemplated under
the Securities Act, (B) the registration statement, the related prospectus
and each amendment or supplement thereof comply as to form in all material
respects with the requirements of the Securities Act (except that such
counsel need not express any opinion as to financial statements, notes or
schedules thereto or other financial, statistical and accounting data or
information contained therein) and (C) to such other effects as reasonably
may be requested by counsel for the underwriters or by the Investor or its
counsel and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters and to the
Investor, stating that they are independent public accountants within the
meaning of the Securities Act and that, in the opinion of such accountants,
the financial statements of the Company included in the registration
statement or the prospectus, or any amendment or supplement thereof, comply
as to form in all material respects with the applicable accounting
requirements of the Securities Act, and such letter shall additionally cover
such other financial matters (including information as to the period ending
no more than five business days prior to the date of such letter) with
respect to such registration as such underwriters reasonably may request; and
(h) make available for inspection by the Investor, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by the
Investor or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by the
Investor, underwriter, attorney, accountant or agent in connection with such
registration statement.
For purposes of SECTIONS 3(a) and 3(b), the period of distribution of
Restricted Stock in a firm commitment underwritten public offering shall be
deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of
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Restricted Stock in any other registration shall be deemed to extend until
the earlier of the sale of all Restricted Stock covered thereby and 180 days
after the effective date thereof.
In connection with each registration hereunder, the Investor will
furnish to the Company in writing such information with respect to themselves
and the proposed distribution by them as reasonably shall be necessary in
order to assure compliance with federal and applicable state securities laws.
In connection with each registration pursuant to SECTION 2 OR SECTION
2A, covering an underwritten public offering: (x) the Company and the
Investor agree to enter into a written agreement with the managing
underwriter selected in the manner herein provided in such form and
containing such provisions as are customary in the securities business for
such an arrangement between such underwriter and companies of the Company's
size and investment stature and (y) the Investor agrees that, upon receipt of
any notice (a "SUSPENSION NOTICE") from the Company of the happening of any
event rendering statements contained in such registration statement untrue or
misleading, the Investor shall forthwith discontinue disposition of
Restricted Stock until receipt by the Investor of the supplemented or amended
prospectus, or until it is advised in writing (the "ADVICE") by the Company
that the use of the prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
prospectus, and, if so directed by the Company, the Investor will deliver to
the Company all copies, other than permanent file copies then in the
possession of the Investor, of the prospectus covering such Restricted Stock
current at the time of receipt of such notice; provided, however, that in the
case of a public offering that is not underwritten such postponement of sales
of Restricted Stock by the holders shall not exceed ninety (90) days in the
aggregate during any one year period. In the event the Company provides a
Suspension Notice, any relevant time period set forth in this Agreement shall
be extended by the number of days during the period from and including the
date of the giving of the Suspension Notice to and including the date when
each seller of Restricted Stock covered by such registration statement shall
have received the copies of the supplemented or amended prospectus or the
Advice. The Company shall use its best efforts and take such actions as are
necessary to render the Advice as promptly as practicable. In any event, the
Company shall not be entitled to deliver more than three (3) Suspension
Notices in any one year in the case of public offerings that are not
underwritten.
4. EXPENSES. All expenses incurred by the Company in complying with
SECTION 2 OR SECTION 2A, including, without limitation, all registration and
filing fees, listing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including counsel fees) incurred in connection with complying with state
securities or "blue sky" laws, fees of the National Association of Securities
Dealers, Inc., transfer taxes, fees of transfer agents and registrars and
costs of insurance, but excluding any Selling Expenses, are called
"REGISTRATION EXPENSES." All underwriting discounts, selling commissions and
any fees and disbursements of independent public accountants and counsel for
the Investor applicable to the sale of Restricted Stock are called "SELLING
EXPENSES".
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The Company will pay all Registration Expenses in connection with each
registration statement under SECTION 2 OR SECTION 2A. All Selling Expenses
in connection with each registration statement under SECTION 2 OR SECTION 2A,
shall be borne by the Investor.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) In the event of a registration of any of the Restricted
Stock under the Securities Act pursuant to Section 2 or Section 2A, the
Company will, and hereby does agree to, indemnify and hold harmless the
Investor (including its officers and directors and partners), each
underwriter of such Restricted Stock thereunder and each other person, if
any, who controls the Investor or such underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which the Investor or such underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section
2 or Section 2A, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading or any violation or alleged violation by the Company of the
Securities Act, Exchange Act or applicable Ablue sky" laws, and will
reimburse the Investor, each such underwriter and each such 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 Company will not be liable
in any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
written information furnished by the Investor, any such underwriter or any
such controlling person specifically for use in such registration statement
or prospectus or arise from the Investor's (or any affiliate thereof) failure
to deliver a copy of the registration statement or prospectus or any
amendments thereafter the Company has furnished the Investor or affiliate.
(b) In the event of a registration of any of the Restricted Stock
under the Securities Act pursuant to SECTION 2 OR SECTION 2A, the Investor,
severally and not jointly, will indemnify and hold harmless the Company, each
person, if any, who controls the Company within the meaning of the Securities
Act, each officer of the Company who signs the registration statement, each
director of the Company, each underwriter and each person who controls any
underwriter within the meaning of the Securities Act, against all losses,
claims, damages, liabilities and expenses, joint or several, to which the
Company or such officer, director, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Section
2 or Section 2A, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or
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necessary to make the statements therein not misleading, and will reimburse
the Company and each such officer, director, underwriter and 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 Investor will be liable
hereunder in any such case if and only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with any written information pertaining to the
Investor, as such, furnished to the Company by the Investor specifically for
use in such registration statement or prospectus; and provided, further,
HOWEVER, that the liability of the Investor hereunder shall be limited to the
proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of the shares sold by
the Investor under such registration statement bears to the total public
offering price of all securities sold thereunder, but not in any event to
exceed the proceeds received by the Investor from the sale of Restricted
Stock covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing thereof, but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to such indemnified party other than under this SECTION 5
and shall only relieve it from any liability which it may have to such
indemnified party under this SECTION 5 if and to the extent the indemnifying
party is prejudiced by such omission. In case any such action shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate in and, to the extent it shall wish, to assume and undertake
the defense thereof with counsel reasonably satisfactory to such indemnified
party, and, after notice from the indemnifying party to such indemnified
party of its election so to assume and undertake the defense thereof, the
indemnifying party shall not be liable to such indemnified party under this
SECTION 5 for any legal expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation and of liaison with counsel so selected; PROVIDED, HOWEVER,
that (i) if such defense is not assumed by the indemnifying party as
permitted hereunder, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its
consent (but such consent will not be unreasonably withheld) and (ii) if such
defense is assumed by the indemnifying party pursuant to the provisions
hereof, such indemnifying party shall not settle or otherwise compromise the
applicable claim unless (x) such settlement or compromise contains a full and
unconditional release of the indemnified party or (y) the indemnified party
otherwise consents in writing; and PROVIDED, FURTHER, HOWEVER, that, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be reasonable defenses available to it which are different
from or additional to those available to the indemnifying party or if the
interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party (together with
all other indemnified parties which may be represented without conflict by
one counsel) shall have the right to select one separate counsel and to
assume such legal defenses and otherwise to participate in the defense of
such action, with the reasonable expenses and fees of such separate
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counsel and other reasonable expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) the
Investor when exercising rights under this Agreement, or any controlling
person of the Investor, makes a claim for indemnification pursuant to this
SECTION 5 but it is judicially determined that such indemnification may not
be enforced in such case notwithstanding the fact that this SECTION 5
provides for indemnification in such case, or (ii) contribution under the
Securities Act may be required on the part of the Investor or any such
controlling person in circumstances for which indemnification is provided
under this SECTION 5; then, and in each such case, the Company and the
Investor will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
such proportion as is appropriate to reflect the relative fault of the holder
on the one hand and of the Company on the other in connection with the
statements or omissions that resulted in such loss, claim, damage, or
liability as well as any other relevant equitable considerations. The
relative fault of the Investor and of the Company shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the Investor or by the Company and the parties'
relative intent, knowledge, access to information, and opportunity to correct
or prevent such statement or omission; PROVIDED, HOWEVER, that, in any such
case, (A) the Investor will not be required to contribute any amount in
excess of the public offering price of all such Restricted Stock offered by
it pursuant to such registration statement; and (B) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
6. CHANGES IN COMMON STOCK. If, and as often as, there is any
change in the Common Stock by way of a stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby shall continue with respect to the Common Stock as
so changed.
7. RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time
permit the sale of the Restricted Stock to the public without registration,
at all times after 90 days after the effective date of the first registration
statement covering a public offering of securities of the Company under the
Securities Act, the Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to 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
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(c) furnish to the Investor forthwith upon request a written
statement by the Company as to its compliance with the reporting requirements
of such Rule 144 and of the Securities Act and the Exchange Act, a copy of
the most recent annual or quarterly report of the Company, and such other
reports and documents of the Company and other information in the possession
of or reasonably obtainable by the Company as the Investor may reasonably
request in availing itself of any rule or regulation of the Commission
allowing the Investor to sell any such securities without registration.
8. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate action
and will not violate any provision of law, any order of any court or other
agency of government, the Certificate of Incorporation or By-laws of the
Company or any provision of any indenture, agreement or other instrument to
which it or any or its properties or assets is bound, conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms.
9. MISCELLANEOUS.
(a) No party may assign any of its rights or obligations
hereunder by operation of law or otherwise without the prior written consent
of the other party.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by telecopier
or telex, addressed to the address of such party set forth on the signature
pages hereto, or, in any case, at such other address or addresses as shall
have been furnished in writing to the Company (in the case of the Investor)
or to the Investor (in the case of the Company) in accordance with the
provisions of this paragraph.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware.
(d) This Agreement may not be amended or modified and no
provision thereof may be waived, without the written consent of the Company
and the Investor.
(e) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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(f) If requested in writing by the underwriters, for the
initial underwritten public offering of Common Stock of the Company, the
Investor shall agree not to distribute or sell publicly any shares of
Restricted Stock or any other shares of Common Stock (other than shares of
Restricted Stock or other shares of Common Stock being registered in such
offering), without the consent of such underwriters, for a period of not more
than 180 days following the effective date of the registration statement
relating to such offering; PROVIDED, HOWEVER, that all persons entitled to
registration rights with respect to shares of Common Stock who are not
parties to this Agreement, all other persons selling shares of Common Stock
in such offering, all persons holding in excess of 1% of the capital stock of
the Company on a fully diluted basis and all executive officers and directors
of the Company shall also have agreed not to sell publicly their Common Stock
under the circumstances and pursuant to the terms set forth in this SECTION
9(f).
(g) Except for registration statements of the Company on Forms
X-0, X-0 or any successor thereto or except as described in clause (f)
immediately above, or unless the managing underwriter otherwise consents or
agrees, the Company agrees, and the Company agrees, in connection with any
underwritten registration, to use its reasonable best efforts to cause its
affiliates to agree, not to effect any public sale or private offer or
distribution of any Common Stock during the ten business days prior to the
effectiveness under the Securities Act of any underwritten registration and
during such time period after the effectiveness under the Securities Act of
any underwritten registration (not to exceed 120 days) (except, if
applicable, as part of such underwritten registration) as the Company and the
managing underwriter agree.
(h) Notwithstanding the provisions of Section 2, Section 2A, or
Section 3(a), the Company's obligation to file a registration statement, or
cause such registration statement to become and remain effective, shall be
suspended for a period not to exceed 105 days if (i) at the time the Company
is obligated to file a registration statement, the Company or any of its
affiliates are engaged in confidential negotiations or other confidential
business activities, disclosure of which would be required in such
registration statement (but would not be required if such registration
statement were not filed), and the Board of Directors of the Company
determines in good faith that such disclosure would be materially detrimental
to the Company and its stockholders or would have a material adverse effect
on any such confidential negotiations or other confidential business
activities, or (ii) prior to receiving a request to file a registration
statement, the Board of Directors had determined to effect a registered
underwritten public offering of the Company's securities for the Company's
account and the Company had taken substantial steps (including, but not
limited to, selecting a managing underwriter for such offering) and is
proceeding with reasonable diligence to effect such offering. A deferral of
the filing of a registration statement pursuant to this Section 9(h) shall be
lifted, and the requested registration statement shall be filed forthwith,
if, in the case of a deferral pursuant to clause (i) of the preceding
sentence, the negotiations or other activities are disclosed or terminated,
or, in the case of a deferral pursuant to clause (ii) of the preceding
sentence, the proposed registration for the Company's account is abandoned.
In order to defer the filing of a registration statement pursuant to this
Section 9(h), the Company shall promptly (but in any event within 10 days),
upon determining to seek such deferral, deliver to the Investor a certificate
signed by an
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executive officer of the Company stating that the Company is deferring such
filing pursuant to this Section 9(h) and a general statement of the reason
for such deferral and an approximation of the anticipated delay.
(i) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any
manner affect or render illegal, invalid or unenforceable any other provision
of this Agreement, and this Agreement shall be carried out as if any such
illegal, invalid or unenforceable provision were not contained herein.
(j) This Agreement shall terminate upon the earlier to occur of
(i) such date on or after the closing of the Company's first firm commitment
underwritten public offering as all shares of Restricted Stock held may
immediately be sold pursuant to Rule 144 under the Securities Act during any
90-day period or (ii) the twelfth anniversary of this Agreement.
(k) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings with respect to
such subject matter.
(l) HEADINGS. The headings in this Agreement are for
convenience and reference only and shall not limit or otherwise affect the
meaning hereof.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first written above.
COMPANY
DIGITAL:CONVERGENCE CORPORATION
By: /s/ J. Xxxxx Xxxxxxx
-----------------------------------
Name: J. Xxxxx Xxxxxxx
Title: Chairman & C.E.O.
Address: 0000 X. Xxxxxxx Xxxxxxxxxx
0xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[REGISTRATION RIGHTS AGREEMENT - SIGNATURE PAGE]
INVESTOR
NEOMEDIA TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman and CEO
Address: 0000 Xxxxxx Xx., Xxx. 000
Xx. Xxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
[REGISTRATION RIGHTS AGREEMENT - SIGNATURE PAGE]
