EXHIBIT 10.2
REGISTRATION AGREEMENT
AGREEMENT made as of June 9, 1994 by and among Global Imaging Systems Inc.,
a Delaware corporation (the "Company"); and those persons listed on Exhibit A
attached hereto (collectively, the "Purchasers").
WITNESSETH:
The Company and the Purchasers are parties to an Equity Purchase Agreement
of even date herewith (the "Purchase Agreement"). In order to induce the
Purchasers to enter into the Purchase Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the Closing under the Purchase
Agreement. Any other persons who purchase Common Stock of the Company may, with
the consent of the Company's Board of Directors and the holders of more than 60%
of each class of the Company's Common Stock, become parties to this Agreement by
executing a supplemental signature page hereto.
Certain Capitalized Terms used herein are defined in paragraph 8 hereof.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Long-Form Registrations. At any time after the earlier of (i) 180
days after the Company's Initial Public Offering has been declared effective by
the Securities and Exchange Commission (the "SEC") or (ii) the fifth anniversary
of the date hereof, the holders of at least a majority of the Registrable
Securities may request registration under the Securities Act of all or part of
their Registrable Securities on Form S-l or any similar long-form registration
("Long-Form Registrations") for which the Company will pay all Registration
Expenses (a "Company-Paid Long Form Registration"), provided that the expected
aggregate net cash proceeds to all sellers of Registrable Securities in each
such offering is not less than $20 million (with respect to the Company's first
registration under the Securities Act) or $10 million (with respect to
subsequent registrations). The holders of Registrable Securities will be
entitled to request two (2) Company Paid Long-Form Registrations. A registration
will not count as one of the permitted Long-Form Registrations until it has
become effective, and no Company-Paid Long-Form Registration will count as one
of the permitted Long-Form Registrations unless the holders of Registrable
Securities are able to register and sell at least 90% of the Registrable
Securities requested to be included in such registration, provided that in any
event the Company will pay all Registration Expenses in connection with any
registration initiated as a Company-Paid Long-Form Registration. All Long-Form
Registrations shall be underwritten registrations.
(b) Short-Form Registrations. In addition to the Long-Form Registrations
provided pursuant to paragraph 1(a), at any time after the fifth anniversary of
the date hereof the holders of at least 40% of the Registrable Securities may
request an unlimited number of registrations under the Securities Act of all or
part of their Registrable Securities on Forms S-2 or S-3 or any similar
short-form registration ("Short-Form Registrations") in which the Company will
pay all Registration Expenses, provided that the expected aggregate net cash
proceeds to all sellers in each such offering may not be less than $10 million.
All registrations requested pursuant to paragraphs 1(a) or 1(b) are referred to
herein as "Demand Registrations." Demand Registrations will be Short-Form
Registrations whenever the Company is permitted to use any applicable short
form. Once the Company has become subject to the reporting requirements of the
Securities Exchange Act, the Company will use its best efforts to make
Short-Form Registrations available for the sale of Registrable Securities.
(c) Priority on Demand Registrations. Within five days after receipt of any
request for a Demand Registration, the Company will give written notice of such
request to all other holders of Registrable Securities and will include in such
Demand Registration all Registrable Securities with respect to which the Company
has received written requests for inclusion therein within 15 days after the
receipt of the Company's notice. The Company will not include in any Demand
Registration any securities which are not Registrable Securities without the
written consent of the holders of at least a majority of the Registrable
Securities requesting such registration. If the managing underwriter of any
Demand Registration advises the Company in writing that in its opinion the
number of Registrable Securities and other securities requested to be included
exceeds the number of Registrable Securities and other securities which can be
sold in such offering, the Company will include in such registration prior to
the inclusion of any securities which are not Registrable Securities, the number
of Registrable Securities requested to be included which in the opinion of such
underwriter can be sold, pro rata among the respective holders on the basis of
their relative shares of Registrable Securities held. Any Persons other than
holders of Registrable Securities who participate in Demand Registrations must
pay their share of the Registration Expenses as provided in paragraph 5.
(d) Restrictions on Long-Form Registrations. The Company will not be
obligated to effect any Long-Form Registration within six months after the
effective date of a previous Long-Form Registration or a registration in which
the holders of Registrable Securities were given Piggyback Rights pursuant to
paragraph 2 and in which there was no reduction in the number of Registrable
Securities requested to be included.
(e) Selection of Underwriters. The holders of a majority of the Registrable
Securities included in any Demand Registration will have the right to select the
investment banker(s) and manager(s) to administer the offering, subject to the
Company's approval which will not be unreasonably withheld.
(f) Other Registration Rights. Except as provided in this Agreement, the
Company will not grant to any Persons the right to request the Company to
register any equity securities of the Company, or any securities convertible or
exchangeable into or
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exercisable for such securities, without the written consent of the holders of a
majority of the Registrable Securities.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of
its securities under the Securities Act (other than pursuant to a Demand
Registration) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
will give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration and will include in such registration
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 15 days after the receipt of the
Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, the Company will include in such
registration (i) first, the securities the Company proposes to sell, (ii)
second, the Registrable Securities requested to be included in such
registration, pro rata among the holders of such Registrable Securities on the
basis of the number of shares owned by such holders, and (iii) third, other
securities requested to be included in such registration; provided, that in any
Piggyback Registration other than the Initial Public Offering of the Company's
Common Stock, the holders of Registrable Securities shall be permitted to
include in any such registration on a pro rata basis not less than 25% of the
number of shares of Common Stock proposed to be sold in such offering, unless
the holders of a majority of the Registrable Securities requesting such
registration agree in writing to reduce such portion or to waive their rights
under this proviso.
(d) Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering, the Company
will include in such registration (i) first, the securities requested to be
included therein by the holders requesting such registration, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the holders of such Registrable Securities on the basis of the number of
shares owned by such holders and (iii) third, other securities requested to be
included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering must be approved by the holders of a majority of the Registrable
Securities included in such Piggyback Registration. Such approval will not be
unreasonably withheld.
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(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or this paragraph 2, and if such previous registration has not been
withdrawn or abandoned, the Company will not file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form X-0, Xxxx X-0 or any successor form), whether on its own
behalf or at the request of any holder or holders of such securities, until a
period of at least six months has elapsed from the effective date of such
previous registration, unless a shorter period of time is approved by the
holders of a majority of the Registrable Securities included in such previous
registration, or unless such registration is a "shelf registration" on Form S-3
that the holders of Registrable Securities have requested to be kept effective
for a period of more than six months.
3. Holdback Agreements.
(a) Each holder of Registrable Securities agrees not to effect any
public sale or distribution of equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 30 days prior to and the 90-day period (180 days in the case of the
Initial Public Offering) beginning on the effective date of any underwritten
Demand Registration or any underwritten Piggyback Registration in which
Registrable Securities are included (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
(b) The Company agrees (i) not to effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
90-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-4, Form S-8 or
any successor form), unless the underwriters managing the registered public
offering otherwise agree, and (ii) to cause each holder of at least 5% (on a
fully-diluted basis) of its equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, purchased from the
Company at any time after the date of this Agreement (other than in a registered
public offering) to agree not to effect any public sale or distribution of any
such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the
registered public offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company will use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof and pursuant thereto the Company will as expeditiously as
possible:
(a) prepare and file with the SEC a registration statement with respect
to such Registrable Securities and use its best efforts to cause such
registration statement to become effective (provided that before filing a
registration statement or prospectus or any
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amendments or supplements thereto, the Company will furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered by
such registration statement copies of all such documents proposed to be filed,
which documents will be subject to the review of such counsel);
(b) prepare and file with the SEC 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 a period of
not less than six months and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the Sellers thereof set forth in such registration statement;
provided, that if the Company is eligible to use Form S-3, the holders of
Registrable Securities may require the Company to keep such registration
effective as a "shelf registration" for a period of up to two years.
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such Seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any Seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such Seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
Seller (provided that the Company will not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each Seller of such Registrable Securities, at any time when
a prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading, and,
at the request of any such Seller, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the
statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
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(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including, without limitation, effecting a stock split
or a combination of shares);
(i) if the offering is underwritten and at the request of any Seller of
Registrable Securities, use its best efforts to furnish on the date that
Restricted Securities are delivered to the underwriters for sale pursuant to
such registration an opinion dated such date of counsel representing the Company
for the purposes of such registration, addressed to the underwriters and to such
Seller, stating that such registration statement has become effective under the
Securities Act and that (i) to the best 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, (ii) 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 contained therein) and (iii) to such
other effects as reasonably may be requested by counsel for the underwriters or
by such Seller or its counsel.
(j) make available for inspection by any Seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other agent retained by
any such Seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company, and cause the Company's
officers, directors, employees and independent accountants to supply all
information reasonably requested by any such Seller, underwriter, attorney,
accountant or agent in connection with such registration statement; and
(k) obtain a cold comfort letter from the Company's independent public
accountants in customary form and covering such matters of the type customarily
covered by cold comfort letters as the holders of a majority of the Registrable
Securities being sold reasonably request (provided that such Registrable
Securities constitute at least 10% of the securities covered by such
registration statement).
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for the Company and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by the Company
(all such expenses being herein called "Registration Expenses"), will be borne
as provided in this Agreement, except that the Company will, 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 or quarterly review, the expense of any liability
insurance and the expenses and fees for listing
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the securities to be registered on each securities exchange on which similar
securities issued by the Company are then listed.
(b) In connection with each Company-Paid Long-Form Registration and
each Short-Form Registration, the Company will reimburse the holders of
Registrable Securities covered by such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of such
Registrable Securities.
(c) To the extent Registration Expenses are not required to be paid by
the Company, each holder of Registrable Securities included in any registration
hereunder will pay those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration Expenses not so
allocable will be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers and directors and each
Person who controls such holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such holder expressly for use
therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company will indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such holder; provided that the obligation to indemnify
will be several, not joint and several, among such holders of Registrable
Securities and the liability of each such holder of
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Registrable Securities will be in proportion to and limited to the net amount
received by such holder from the sale of Registrable Securities pursuant to such
registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, 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). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director or controlling Person of such
indemnified party and will survive the transfer of securities. The Company also
agrees to make such provisions, as are reasonably requested by any indemnified
party, for contribution to such party in the event the Company's indemnification
is unavailable for any reason.
7. Participation in Registrations. No Person may participate in any
registration hereunder unless such Person:
(a) in the case of a registration which is underwritten, agrees to sell
such Person's securities on the basis provided in any underwriting arrangements
approved by the Person or Persons entitled hereunder to approve such
arrangements;
(b) as expeditiously as possible, notifies the Company, at any time
when a prospectus relating to such Person's Registrable Securities is required
to be delivered under the Securities Act, of the happening of any event as a
result of which such prospectus contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein not misleading;
(c) complies with all reasonable requests made by the Company or its
counsel with respect to the registration of such Person's Registrable
Securities, including, without limitation, providing access to all relevant
books and records; and
(d) completes, executes and delivers all questionnaires, powers of
attorney, indemnities, underwriting agreements and other usual and customary
documents necessary or appropriate with respect to the offering of such Person's
Registrable Securities, and in the case of a registration which is underwritten,
necessary or appropriate under the terms of such underwriting arrangements.
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8. Definitions.
(a) The term "Initial Public Offering" shall mean the first registered
public offering of the Company's Common Stock by the Company under the
Securities Act with net proceeds to the Company of not less than $10 million.
(b) The term "Registrable Securities" means (i) any Class A Common
Stock held by the Purchasers, and (ii) any Class B Common Stock held by the
Purchasers or the managers of the Company, (iii) any securities issued or
issuable with respect to the Class A Common Stock or Class B Common Stock
referred to in clauses (i) or (ii) by way of a stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization, and (iv) any other shares of Class A
Common Stock or Class B Common Stock held by Persons holding securities
described in clauses (i), (ii), or (iii) above. As to any particular Registrable
Securities, such securities will cease to be Registrable Securities when they
have ceased to be Restricted Securities (as defined in the Purchase Agreement),
unless such securities are held at such time by a holder of Registrable
Securities. For purposes of this Agreement, a Person will be deemed to be a
holder of Registrable Securities whenever such Person has the right to acquire
such Registrable Securities (by conversion or otherwise, but disregarding any
legal restrictions upon the exercise of such right), whether or not such
acquisition has actually been effected. Notwithstanding the foregoing, in the
event of any transfer of Registrable Securities to an Affiliate of the Purchaser
or by gift to a member of his immediate family, or by will or the laws of
descent and distribution, or to a trust for the benefit of the Purchaser and/or
his immediate family (and any such trust may transfer shares to the Purchaser
and/or members of the Purchaser's immediate family in accordance with its
terms), then such shares shall continue to be "Registrable Securities" for
purposes of this Agreement.
(c) The term "Seller" means any person whose Registrable Securities are
included in a Demand or Piggyback Registration.
(d) Unless otherwise stated, other capitalized terms contained herein
have the meanings set forth in the Purchase Agreement.
9. Miscellaneous.
(a) Selection or Investment Bankers. Except as otherwise provided
herein in connection with Demand Registrations and Piggyback Registrations, the
selection of investment banker(s) and manager(s) for any public offering or
private sale by the Company of its securities must be approved by the holders of
a majority of the Registrable Securities, which approval will not be
unreasonably withheld.
(b) No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with the
rights granted to the holders of Registrable Securities in this Agreement.
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(c) Adjustments Affecting Registrable Securities. The Company will not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would materially and adversely
affect the marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(d) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically, to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law.
(e) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company has obtained the written consent of the holders of 80%
of the Registrable Securities.
(f) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(g) Notices. The paragraph entitled "Notices" in the Purchase Agreement
is hereby incorporated in this Agreement by reference and made a part hereof,
with the following addition:
Notice to the Holders
At the address set forth opposite the name of each of the
Purchasers on Exhibit A attached hereto
with a copy to
Xxxxxxxxxxx X. Xxxxx, Esq.
Xxxxx, Xxxxxx & Xxxxxx
0000 Xxx Xxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxxxxx, X.X. 00000-0000
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(h) Stockholders' Agreement. Notwithstanding anything above to the
contrary, all transfers of Registrable Securities are subject to the provisions
of the Stockholders' Agreement and shall be made in accordance with such
provisions.
(j) Termination of Registration Rights. All registration rights granted
hereunder will expire at such time as 75% of the Registrable Securities
originally issued by the Company pursuant to the Purchase Agreement have been
sold to the public (either in an offering registered under the Securities Act or
pursuant to Rule 144 promulgated under the Securities Act), and the average
daily trading volume of the Common Stock over the six-month period immediately
preceding the termination is at least one-quarter of one percent (1/4%) of the
Company's outstanding Common Stock.
(k) Incorporation of Purchase Agreement Provisions. The paragraphs entitled
"Severability," "Counterparts," "Descriptive Headings" and "Governing Law" in
the Purchase Agreement are hereby incorporated in this Agreement by reference
and made a part hereof.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
GLOBAL IMAGING SYSTEMS INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV LIMITED PARTNERSHIP
By: Golder, Thoma, Xxxxxxx, Xxxxxx IV, L.P.
General Partner
By: Golder, Thoma, Cressey, Rauner, Inc.
Its: General Partner
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
Authorized Officer
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
--------------------------------------------
Xxxxxxx Xxxxxxxxx
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AMENDMENT NO. 3 TO REGISTRATION AGREEMENT
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THIS AMENDMENT NO. 3 TO REGISTRATION AGREEMENT is made as of August 14,
1996 by and among Global Imaging Systems Inc., a Delaware corporation (the
"Company"); Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV, Limited Partnership, a
Delaware limited partnership ("GTCR"); Xxxxxx X. Xxxxxxx ("Xxxxxxx"); and
Xxxxxxx National Life Insurance Company, a Michigan life insurance company
("JNL").
WITNESSETH:
The Company, GTCR, Xxxxxxx, Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxxxx, Xxxxx X.
Xxxxxx, Xxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxx Xxxxxxxx, L. Xxxx Xxxxxx, Xxxxxx Xxxx,
Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxx X. Xxxx, Xxxxxx Xxxxxxx, Xxxx Xxxxxxxxx,
Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxxxxxx X. Xxxxxxxxxxx, Xxxxxxxxxxx Xxxxx, Xxxxxx X.
Xxxxxx, Xxxxxx X. Xxxx, Xxxxxx X. Xxxx, Xxxxxx XxXxxx, Xxxxx Xxxx, Xxxxx X.
Xxxxx and Xxxxxxx X. Xxxxx are parties to a Registration Agreement dated June 9,
1994, as amended (the "Registration Agreement") pursuant to which the Company
has granted to such persons certain registration rights for their shares of the
Company's Common Stock. In order to induce JNL to enter into an Equity Purchase
Agreement of even date herewith (the "JNL Purchase Agreement") and to purchase
share shares of the Company's Common Stock, the Company and each of GTCR and
Xxxxxxx have agreed to amend the Registration Agreement to add JNL as a party
thereto. The execution and delivery of this Agreement is a condition to the
Closing under the JNL Purchase Agreement.
Certain Capitalized Terms used herein are defined in the Registration
Agreement.
The parties hereto agree as follows:
1. AMENDMENTS TO REGISTRATION AGREEMENT.
1.1 First Recital. The first recital to the Registration Agreement is
hereby amended to delete the first two sentences of such recital and to add the
following sentences in their place:
"The Company and certain Purchasers are parties to an Equity Purchase
Agreement dated June 9, 1994 (the "Purchase Agreement") and the Company and
Xxxxxxx National Life Insurance Company ("JNL") are parties to an Investor
Purchase Agreement dated August 14, 1996 (the "JNL Purchase Agreement"). In
order to induce the Purchasers under the Purchase Agreement and the JNL
Purchase Agreement to enter into such agreements, the Company has agreed to
provide the registration rights set forth in this Agreement. "
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1.2 Long-Form Registrations.
(a) Subparagraph 1(a) of the Registration Agreement is hereby amended
to delete the number "$20 million" in the ninth line of the first sentence and
to replace it with the number "$10 million". In addition subparagraph 1(a) of
the Registration Agreement is hereby further amended to delete the number "$10
million" in the ninth and tenth lines of the first sentence and to replace it
with the number "$5 million".
(b) Subparagraph 1(a) of the Registration Agreement is hereby amended
to delete the reference to "two (2)" in the second sentence of such subparagraph
and to insert "four (4)" in its place. In addition, the second to last sentence
of such subparagraph 1(a) is hereby amended to add the phrase "(including
Registrable Securities held by JNL which were requested to be included in such
registration" after the words such registration" and before ", provided that. .
.".
1.3 Priority on Demand Registrations. Subparagraph 1(c) of the
Registration Agreement is hereby amended to add the following new sentence at
the end of such subparagraph:
"Notwithstanding the foregoing, in the event of a JNL Demand
Registration, the holders of Registrable Securities other than JNL
Registrable Securities shall only be included in such Demand Registration
if the holders of JNL Registrable Securities are able to sell all of their
Registrable Securities requested to be included therein. "
1.4 Selection of Underwriters. Subparagraph 1(e) of the Registration
Agreement is hereby amended to substitute "initiating" for "included in" in the
first sentence.
1.5 Demand Registrations. Paragraph 1 of the Registration Agreement is
hereby amended to add the following subparagraph (g) after the end of such
paragraph:
"(g) JNL Demand Rights. Notwithstanding the provisions of
paragraph 1(a) above, at any time after 180 days after the closing of the
Company's Initial Public Offering the holders of a majority of the
Registrable Securities initially issued to JNL pursuant to the JNL Purchase
Agreement (the "JNL Registrable Securities") shall have the right to
request up to two (2) Demand Registrations for their Registrable Securities
(the "JNL Demand Registrations"); provided, however, that (i) at least 50%
of the JNL Registrable Securities shall have been requested to be included
in the first JNL Demand Registration and (ii) the second JNL Demand
Registration may not be requested until 18 months after the closing of a
prior JNL Demand Registration and the holders of JNL Registrable Securities
must have requested to include at least 80% of all remaining JNL
Registrable Securities in such registration. The JNL Demand Registrations
shall count
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as two of the four Long-Form Registrations for the holders of Registrable
Securities pursuant to paragraph 1(a) above unless the Company is permitted
to use any applicable short form. The Company shall pay all Registration
Expenses associated with the JNL Demand Registrations."
1.6 Priority on Primary Registrations. Subparagraph 2(c) of the
Registration Agreement is hereby amended to add the following sentence at the
end of such subparagraph:
"Notwithstanding the foregoing, in the event that such underwritten primary
registration is the Company's Initial Public Offering of its securities,
then the managing underwriters shall have the right to exclude any
securities held by employees of the Company if in their opinion the sale of
such securities would adversely affect either the offering price or the
number of securities which the Company will include in such registration."
1.7 Registration Expenses.
(a) Subparagraph 5(b) of the Registration Agreement is hereby amended
to delete the phrase "such Registrable Securities" at the end of such
subparagraph and to replace it with "the holders of "Registrable Securities
initiating such registration."
(b) Subparagraph 5(c) of the Registration Agreement is hereby deleted
in its entirety.
1.8 Indemnification. Subparagraph 6(b) of the Registration Agreement is
hereby amended to add the phrase "regarding such holder" after the word
"affidavits" in the third line of such subparagraph. Subparagraph 6(b) of the
Registration Agreement is hereby further amended to add the phrase "in
connection with such registration" after the phrase "writing by such holder" in
the twelfth line of such subparagraph.
1.9 Selection of Investment Bankers. Subparagraph 9(a) of the
Registration Agreement is hereby amended to add the phrase "or, in the event of
a JNL Demand Registration, by the holders of a majority of the JNL Registrable
Securities" after the phrase "Registrable Securities" in the fourth line of such
subparagraph.
1.10 Amendments and Waivers. Subparagraph 9(e) of the Registration
Agreement is hereby amended to add the phrase "GTCR, holders of a majority of
the JNL Registrable Securities and" after the phrase "written consent of" in the
last line of such subparagraph.
1.11 Termination of Registration Rights. Subparagraph 9(i) of the
Registration Agreement is hereby amended and restated in its entirety
to read as follows:
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"(i) Termination of Registration Rights. All registration
rights granted hereunder will expire at such time as either (i) 100% of the
Registrable Securities originally issued by the Company pursuant to the
Purchase Agreement and the JNL Purchase Agreement have been sold to the
public (either in an offering registered under the Securities Act or
pursuant to Rule 144 promulgated under the Securities Act), or (ii) all of
the Registrable Securities (other than those held by a director or officer
of the Company) are eligible for resale under Rule 144(k) promulgated under
the Securities Act and the average daily trading volume of the Common Stock
over the six-month period immediately preceding the termination is at least
one percent (1%) of the Company's outstanding Common Stock."
1.12 Schedule of Holders. The Schedule of Holders to the Registration
Agreement is hereby amended to be in the form attached hereto as Exhibit A. All
references to "Purchasers" in the Registration Agreement shall include all
parties listed on the Schedule of Holders including "Xxxxxxx National Life
Insurance Company, a Michigan life insurance company."
2. EFFECT OF THE AMENDMENT. All references to the Registration Agreement
in the Purchase Agreement or the JNL Purchase Agreement or any related document
shall mean the Registration Agreement as amended by this Amendment. Except as
specifically amended above, the Registration Agreement shall remain in full
force and effect, and is hereby ratified and confirmed.
3. DESCRIPTIVE HEADINGS. The descriptive headings of this Amendment are
inserted for convenience only and do not constitute a part of this Amendment.
4. GOVERNING LAW. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of Illinois.
5. COUNTERPARTS. This Amendment may be executed and delivered in
counterparts, each of which shall constitute an original, and all of which
together shall constitute one Amendment.
[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Amendment No. 3 to
Registration Agreement as of the date first written above.
GLOBAL IMAGING SYSTEMS INC.
By: /s/ Xxx Xxxxxxxxx
-----------------------------------------
Its: CFO
----------------------------------------
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, LIMITED PARTNERSHIP
By: GTCR IV, L.P.
General Partner
By: Golder, Thoma, Xxxxxxx, Xxxxxx Inc.
General Partner
By: /s/ Xxxx X. Xxxxx
-----------------------------------------
Its:
----------------------------------------
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------------
XXXXXX X. XXXXXXX
FOR: XXXXXXX NATIONAL LIFE INSURANCE COMPANY
BY: PPM AMERICA, INC. as its Agent
By: /s/ Xxxxxxxx Xxxxx
-----------------------------------------
Its: Vice President
----------------------------------------
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EXHIBIT A
SCHEDULE OF HOLDERS
Name Address
---- -------
Golder, Thoma, Xxxxxxx, Xxxxxx Fund IV c/o Golder, Thoma, Cressey, Rauner, Inc.
Limited Partnership 000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxx X. Xxxxxxx P.O. Box 273478
Xxxxxxx Xxxxxxxxx Xxxxx, XX 00000-0000
Xxxxxxx Xxxxxxx Telephone: (000) 000-0000
Xxxx Xxxxxxx Telecopy: (000) 000-0000
Xxxxxxx Xxxxxxxxxxx 0000 Xxxxx Xxxxx Xxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxx X. Xxxxxx 000 Xxxxxxxxx Xxxx
Xxxxx Xxxxx Xxxxxx, XX 00000
Xxxxx Xxxxxxxx Telephone: (000) 000-0000
Xxxx Xxxxxxx Telecopy: (000) 000-0000
Xxxxxxxxxxx Xxxxx
L. Xxxx Xxxxxx 000 Xxxx Xxxx
Xxxxxx Xxxx Xxxxxxxxxx, XX 00000
Xxxxxxx Xxxxxx Telephone: (000) 000-0000
Xxxxxx XxXxxx Telecopy: (000) 000-0000
Xxxxxxx National Life Insurance Company c/o PPM America, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxx Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Name Address
---- -------
Xxxxxx Xxxx 000 Xxxxxxxx
Xxxxxx, Xxxxxxx 00000
Xxxxxx Xxxxxxx Xxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxxx X. Xxxx 00 Xxxxx Xxxx Xxxx
Xxxx Xxxxxxxxx, Xxxxx 00000
Xxxx Xxxxxxxxx 000 Xxxx Xxxxxx
Xxxxxx Xxxx Xxxxxxxx, Xxxxx 00000
Xxxxxx X. Xxxxxx 000 Xxxxxxx Xxxx
Xxxxxx X. Xxxx Xxxxxxxx, XX 00000
Xxxxxx X. Xxxx
Xxxxx Xxxx 000 Xxxxxxxxx Xxxx
Xxxxx X. Xxxxx Xxxxxxxxxxx, XX 00000-0000
Xxxxxxx X. Xxxxx
