EXHIBIT 10.05
WARRANTHOLDERS RIGHTS AGREEMENT
WARRANTHOLDERS RIGHTS AGREEMENT dated as of October 25, 2000 among AVATECH
SOLUTIONS, INC., a Delaware corporation (together with its successors,
"Avatech"), and THE CIT GROUP/BUSINESS CREDIT, INC. ("CIT") (CIT and such
other warrantholders of Avatech as may, from time to time, become parties to
this Agreement in accordance with the provisions hereof, the "Warrantholders").
WHEREAS on the date hereof, the Stockholders (as defined herein) are the
beneficial owners of 6,020,877 shares of Voting Common Stock (as defined
herein), there are outstanding options to purchase 400,255 shares of Voting
Common Stock, and there are outstanding warrants to purchase 64,000 shares of
Voting Common Stock, and CIT purchased and is the beneficial owner of the
Warrants (as defined herein) to purchase 16,213 shares of Voting Common Stock;
and
WHEREAS Avatech wishes to provide to the Warrantholders and the holders of
the Conversion Shares the rights described herein;
NOW THEREFORE the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. DEFINITIONS.
Unless otherwise defined herein, the following terms used in this Agreement
shall have the meanings specified below.
"Affiliate" means, with respect to any Person, any of (i) a director or
executive officer of such Person, (ii) a spouse, parent, sibling or descendant
of such Person (or a spouse, parent, sibling or descendant of any director or
executive officer of such Person) and (iii) any other Person that, directly or
indirectly, controls, or is controlled by or is under common control with such
Person. For the purpose of this definition, "control" (including the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities or by contract or
agency or otherwise.
"BHC Act" means the Bank Holding company Act of 1956, as amended.
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Common stock" means the Voting Common Stock.
"Conversion Shares" means (i) any shares of Voting Common Stock or other
securities issued upon the exercise of any Warrants and (ii) any securities
issued with respect to any of such shares or other securities referred to in
clause (i) upon the conversion thereof into other securities or by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalizaiton, merger, consolidation or other reorganization or otherwise;
PROVIDED that any of such securities shall cease to be Conversion Shares when
such securities shall have (x) been disposed of pursuant to a Public Sale or (y)
ceased to be outstanding.
"Debt" of a Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all Capital Leases of such Person, (v) all obligations of such
Person to purchase securities (or other property) which arise out of or in
connection with the sale of the same or substantially similar securities (or
property), (vi) all non-contingent obligations of such Person to reimburse any
bank or other Person in respect of amounts paid under a letter of credit or
similar instrument, (vii) all equity securities of such Person (other than the
Warrants) subject to repurchase or redemption otherwise than at the sole option
of such Person, (viii) all Debt secured by a Lien on any asset of such Person,
whether or not such Debt is otherwise an obligation of such Person, and (ix) all
Debt of others Guaranteed by such Person.
"Exchange Act" means the Securities Exchange Act of 1934, or any successor
Federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time. Reference to a particular section of
the Securities Exchange Act of 1934 shall include a reference to the comparable
section, if any, of any such successor Federal statute.
"Financing Agreement" means the Financing Agreement dated as of
October 25, 2000 between Avatech and CIT, as amended from time to time.
"Initial Public Offering" means the first registration of an offering of
shares of Common Stock under the Securities Act which becomes effective (other
than by a registration on Form S-4 or S-8 or any successor or similar forms).
"Investment" means any investment in any Person, whether by means of share
purchase, capital contribution, loan, time deposit or otherwise.
"Other Shares" has the meaning set forth in Section 3.2.
"Person" means a corporation, an association, a partnership, a trust, a
limited liability company, an organization, a business, an individual, a
government or a subdivision thereof or a governmental agency.
"Public Sale" means any sale of Common Stock to the public pursuant to an
offering registered under the Securities Act or to the public through a broker,
dealer or market maker pursuant to the provisions of Rule 144 (or any successor
provision then in effect) adopted under the Securities Act.
"Registrable Securities" means any Conversion Shares until the date (if
any) on which such Conversion Shares shall have been transferred or exchanged
and new certificates for them not bearing a legend restricting further transfer
shall have been delivered by Avatech and subsequent disposition of them shall
not require registration or qualification of them under the Securities Act or
any similar state law then in force.
"Registration Expenses" means all expenses incident to Avatech' performance
of or compliance with Sections 3.2 through 3.5 hereof, including (i) all
registration, filing and NASD fees, (ii) all fees and expenses of complying with
securities or blue sky laws, (iii) all word processing, duplicating and printing
2
expenses, (iv) all messenger and delivery expenses, (v) the fees and
disbursements of counsel for Avatech and of its independent public accountants,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, (vi) the fees and
disbursements of any one counsel and any one accountant retained by the holder
or holders of more than 50% of the Registrable Securities being registered,
(vii) premiums and other costs of policies of insurance (if any) against
liabilities arising out of the public offering of the Registrable Securities
being registered if Avatech desires such insurance and (viii) any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, but not including underwriting discounts and commissions and
transfer taxes, if any, PROVIDED that, in any case where Registration Expenses
are not to be borne by Avatech, such expenses shall not include (i) salaries of
Avatech personnel or general overhead expenses of Avatech, (ii) auditing fees,
(iii) premiums or other expenses relating to liability insurance required by
underwriters of Avatech or (iv) other expenses for the preparation of financial
statements or other data, to the extent that any of the foregoing either is
normally prepared by Avatech in the ordinary course of its business or would
have been incurred by Avatech had no public offering taken place.
"Regulated Holder" means any holder of Warrants or Conversion Shares, if
such holder is effectively restricted or prohibited from holding, exercising or
transferring, in whole or in part, the Warrants or Conversion Shares by reason
of any Regulatory Requirement, including without limitation if such holder is a
bank holding company within the meaning of the BHC Act or a subsidiary thereof
subject to Regulation Y under the BHC Act.
"Regulatory Change" means, with respect to any Regulated Holder, (i) any
change on or after the date hereof in United States federal or state or foreign
laws or regulations (including the BHC Act and Regulation Y thereunder); (ii)
the adoption on or after the date hereof of any interpretation or ruling
applying to such Regulated Holder, individually or as a member of a class, under
any United States federal or state or foreign laws or regulations by any court
or governmental or regulatory authority charged with the interpretation or
administration thereof; or (iii) the modification on or after the date hereof of
any agreement or commitment with any such governmental or regulatory authority
that is applicable to or binding upon such Regulated Holder.
"Regulatory Requirement" means any existing or future Federal or state
statute, rule, regulation, guideline, order, request or directive (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful), including without limitation, the BHC Act and the regulations
thereunder.
"Restricted Payment" means (i) any dividend or other distribution on any
shares of Avatech' capital stock (except dividends payable solely in shares of
its capital stock of the same class) or (ii) any payment on account of the
purchase, redemption, retirement or acquisition of (a) any shares of Avatech'
capital stock or (b) any warrant or other right to acquire shares of Avatech'
capital stock.
"Restricted Securities" means the Warrants, the Conversion Shares and any
securities obtained upon exchange for or upon conversion or transfer of or as a
distribution on Warrants, the Conversion Shares or any such securities; PROVIDED
that particular securities shall cease to be Restricted Securities when such
securities shall have (x) been disposed of pursuant to a Public Sale, (y) been
otherwise transferred or exchanged and new certificates for them not bearing a
legend restricting further transfer shall have been delivered by Avatech and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any similar state law then in force (z)
ceased to be outstanding. Whenever any particular securities cease to be
Restricted Securities, the holder thereof shall be entitled to receive from the
issuer thereof or its transfer agent, without expense (other than transfer
taxes, if any), new securities of like tenor not bearing a legend of the
character set forth in Section 2.2.
3
"Securities Act" means the Securities Act of 1933, 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. Reference to a particular section of the
Securities Act of 1933 shall include a reference to the comparable section, if
any, of any such similar Federal statute.
"Significant Stockholder Group" means one or more Stockholders holding 25%
or more, individually or in the aggregate, of the Common Stock of Avatech.
"Stockholders" means the holders of the Common Stock of Avatech.
"Subsidiary" means any partnership or corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by Avatech.
"Voting Common Stock" means the common stock, par value $0.1 per share, of
Avatech.
"Warrant Securityholder" means at any time any Warrantholder or any holder
of Conversion Shares (and for purposes of Section 2.8 shall include any Person
that held Warrants that were redeemed pursuant to Section 5.3 of the Warrants).
"Warrantholders" has the meaning set forth in the introductory paragraph.
"Warrants" means the Warrant or Warrants originally issued to CIT, as such
Warrants may be transferred or otherwise assigned, but only to the extent not
theretofore exercised, redeemed or expired in accordance with their respective
terms.
All references herein to "days" shall mean calendar days unless otherwise
specified.
ARTICLE II
TRANSFER OF SHARES; PAYMENTS TO WARRANT SECURITYHOLDERS
SECTION 2.1. GENERAL.
Except as otherwise provided in this Agreement or by law, each Stockholder
may transfer its shares of Common Stock at any time to any Person.
SECTION 2.2. RESTRICTIONS ON TRANSFER; LEGEND ON CERTIFICATES.
(a) Except as otherwise provided in this Agreement, Restricted
Securities shall not be transferable except (i) pursuant to an effective
registration statement under the Securities Act, (iii) pursuant to Rule 144 or
144A (or any successor provisions) under the Securities Act or (ii) pursuant to
a transaction that is otherwise exempt from the registration requirements of the
Securities Act.
(b) Unless otherwise expressly provided herein, each certificate for
Restricted Securities and each certificate issued in exchange for or upon
transfer of any thereof shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD OR
4
OFFERED FOR SALE UNLESS REGISTERED UNDER SAID ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO AND HAVE
THE BENEFIT OF A WARRANTHOLDERS RIGHTS AGREEMENT DATED AS OF OCTOBER 25,
2000 AMONG AVATECH SOLUTIONS, INC. AND THE WARRANTHOLDERS PARTIES THERETO,
COPIES OF WHICH ARE ON FILE WITH AVATECH SOLUTIONS, INC."
(c) Any other provision of this Agreement to the contrary
notwithstanding, no transfer of any Restricted Securities other than pursuant to
a Public Sale may be made to any Person unless such Person shall have agreed in
writing that such Person, as a holder of Restricted Securities, and the
Restricted Securities it acquires shall be bound by and be entitled to the
benefits of all the provisions of this Agreement applicable to such Restricted
Securities (and upon such agreement such Person shall be entitled to such
benefits). Any purported transfer of Restricted Securities without compliance
with the applicable provisions of this Agreement shall be void and of no effect,
and the purported transferee shall have no rights as a Warrantholder or
Shareholder (as applicable) or under this Agreement. In the event of such
non-complying transfer, Avatech shall not transfer any such Restricted
Securities on its books or recognize the purported transferee as a shareholder
or warrantholder, as the case may be, for any purpose, until all applicable
provisions of this Agreement have been complied with.
SECTION 2.3. PERMITTED TRANSFERS.
The restrictions on transfer provided in Section 2.2 (a) shall not be
applicable to (i) any transfer in compliance with federal and all applicable
state securities laws to an Affiliate of the holder of Restricted Securities,
from an Affiliate of such holder to such holder or between Affiliates of such
holder (if any such Affiliate to whom shares of Restricted Securities have been
transferred by a holder thereof ceases to be an Affiliate of such holder of
Restricted Securities, such Restricted Securities shall immediately be
transferred back to the transferor thereof), (ii) any transfer upon the death of
any holder of Restricted Securities to such holder's executors, administrators
or testamentary trustees or (iii) any transfer to a trust the beneficiaries of
which include only the holder of such Restricted Securities or such holder's
spouse, parents, siblings or descendants (any transferee referred to in (i),
(ii) or (iii) above being referred to herein as a "Permitted Transferee");
PROVIDED that no such transfer shall be made to any Permitted Transferee unless
such Permitted Transferee shall have agreed in writing that such Permitted
Transferee, as a Stockholder or Warrantholder (as the case may be), and the
shares of Common Stock or Warrants it acquires shall be bound by and be entitled
to the benefits of all the provisions of this Agreements applicable to Common
Stock or Warrants (as the case may be), and upon such agreement such Permitted
Transferee shall be entitled to such benefits.
SECTION 2.4. TAG-ALONG RIGHTS.
If a Significant Stockholder Group (any such Person or group of such
Persons for purposes of Section 2.4, the "Transferor") wishes to transfer its
shares of Common Stock or any portion thereof to any Person (the "Transferee"),
the Transferor shall first give to Avatech and each Warrant Securityholder
(pursuant to a list provided by Avatech) a written notice (a "Transfer Notice"),
executed by it and the Transferee and containing (i) the number of shares of
Common Stock that the Transferee proposes to acquire from the Transferor, (ii)
the name and address of the Transferee, (iii) the proposed purchase price, terms
of payment and other material terms and conditions of such proposed transfer,
(iv) an estimate, in the Transferor's reasonable judgment, of the fair market
value of any non-cash consideration offered by the Transferee and (v) an offer
by the Transferee or Transferor to purchase, upon the purchase by the Transferee
of any shares of Common Stock owned by the Transferor and for the same per share
consideration, that number of Conversion Shares (or if such number is not an
integral number, the next
5
integral number which is greater that such number) of each Warrant
Securityholder which shall be the product of (x) the aggregate number of
Conversion Shares either then owned, or issuable upon exercise of Warrants then
owned, by such Warrant Securityholder and (y) a fraction, the numerator of which
shall be the number of shares of Common Stock indicated in the Transfer Notice
as subject to purchase by the Transferee and the denominator of which shall be
the sum of (A) the total number of shares of Common Stock then owned by the
Transferor and its Affiliates plus (B) the total number of Conversion Shares
either then owned, or issuable upon exercise of Warrants then owned, by each
Warrant Securityholder. Each Warrant Securityholder shall have the right, for a
period of 20 days after the Transfer Notice is given, to accept such offer in
whole or in part, exercisable by delivering a written notice to the Transferor
and Avatech within such 20-day period, stating therein the number of shares of
Common Stock (which may be the number of shares set forth in the offer by the
Transferor or Transferee, as the case may be, or may be. Prior to the earlier of
(x) the end of such 20-day period or (y) the acceptance or rejection by each
Warrant Securityholder of the Transferee's or Transferor's offer, as the case
may be, neither the Transferor nor its Affiliates will complete any sale of
shares of Common Stock to the Transferee. Thereafter, for a period of 60 days
after the prohibition under the proceeding sentence shall have terminated, the
Transferor may sell to the Transferee for the consideration stated and on the
terms set forth in the Transfer Notice the shares of Common Stock stated in the
Transfer Notice as subject to purchase by the Transferee, PROVIDED that the
Transferor or Transferee, as the case may be, shall simultaneously purchase the
number of shares of Common Stock as calculated above from those Warrant
Securityholders who have accepted the Transferor's or Transferee's offer, as the
case may be. The provisions of this Section 2.4 shall not apply to transfers
between the Transferor and any of its Affiliates or between Affiliates of the
Transferor.
SECTION 2.5. DRAG-ALONG RIGHTS.
If at any time prior to an Initial Public Offering, a Significant
Stockholder Group with drag-along rights (any such Person or group of such
Persons for purposes of this Section 2.5, the "Transferor") wishes to transfer
all of the shares of Common Stock owned by it and its Affiliates (PROVIDED that
such shares of Common Stock constitute more than 50% of all shares of Common
Stock on a Fully Diluted Basis (as defined in the Warrants) at such time) in a
bona fide sale to any Person (the "Proposed Transferee") pursuant to which the
consideration to be paid by the Proposed Transferee consists solely of cash and
freely tradeable securities with an active public market and the Transferor and
its Affiliates will not receive, in connection with the transactions
contemplated at the time of such transfer, any other securities or options to
acquire securities of Avatech, then the Transferor shall have the right (the
"Drag-Along Right") to require each Warrant Securityholder to sell to the
Proposed Transferee for the same per share consideration received by the
Transferor all of the Conversion Shares and Warrants (calculated, in the case of
any Warrants, on the number of Conversion Shares for which such Warrant is
exercisable at such time) held by such Warrant Securityholder; PROVIDED that (a)
such price per share is not less than the Fair Market Value (as defined in the
Warrants) of Avatech per share of outstanding Common Stock on a Fully Diluted
Basis and (b) each Warrant Securityholder shall not be obligated to make any
representation or warranty, or incur any liability in connection with any such
transfer, other than as to its ownership of the Conversion Shares or Warrants
being transferred by it. To exercise the Drag-Along Right, the Transferor shall
first give to Avatech and each other Warrant Securityholder (pursuant to a list
provided by Avatech) a written notice (a "Drag-Along Notice") executed by the
Transferor and the Proposed Transferee and containing (a) the number of shares
of Common Stock that the Proposed Transferee proposes to acquire from the
Transferor and its Affiliates, and certifying that such shares constitute all of
the shares of Common Stock owned by the Transferor and its Affiliates and more
than 50% of the shares of Common Stock on a Fully Diluted Basis at such time,
(b) the name and address of the Proposed Transferee, (c) the proposed purchase
price (certifying that such price per share is not less than the Fair Market
Value of outstanding Common Stock on a Fully Diluted Basis), terms of
6
payment and other material terms and conditions of the Proposal Transferee's
offer, (d) a statement by the Proposed Transferee that the Proposed Transferee
(i) has been informed of the Drag-Along Right provided for in this Section 2.5
and (ii) has agreed to purchase the Conversion Shares in accordance with the
terms of this Section 2.5 and (e) the aggregate number of Conversion Shares or
Warrants owned by each Warrant Securityholder with respect to which the
Transferor wishes to exercise its Drag-Along Right pursuant to this Section 2.5.
Each Warrant Securityholder shall thereafter be obligated to sell to the
Proposed Transferee the Warrants and Conversion Shares subject to such
Drag-Along Notice, PROVIDED that the sale to the Proposed Transferee is
consummated within 60 days of delivery of the Drag-Along Notice. If the sale is
not consummated within such 60-day period, then each affected Warrant
Securityholder may sell, but shall no longer be obligated to sell, such Warrant
Securityholder's Warrants or Conversion Shares pursuant to such Drag-Along
Notice. The provisions of this Section 2.5 shall not apply to transfers between
the Transferor and any of its Affiliates or between any of its Affiliates.
SECTION 2.6. [RESERVED]
SECTION 2.7. RESTRICTIONS ON TRANSFER BY REGULATED HOLDERS.
(a) Notwithstanding anything else set forth herein to the contrary, in
the event of any reasonable determination in good faith by any Regulated Holder
that, by reason of any Regulatory Requirement, such Regulated Holder is
effectively restricted or prohibited from holding, exercising or transferring
(as the case may be) any Warrant or Conversion Shares (or any portion thereof),
Avatech shall use reasonable good faith efforts to take such action as it may
determine is reasonably necessary and appropriate to permit such Regulated
Holder to hold, exercise or transfer (as the case may be) such Warrant or
Conversion Shares (or any portion thereof) in such manner as is necessary to
comply with such Regulatory Requirement. All such actions shall be taken at the
expense of Regulated Holder. Regulated Holder shall give written notice to
Avatech of any reasonable determination by it hereunder and the transfer or
other action it believes may be necessary or appropriate to permit it to comply
with such Regulatory Requirement. In the event of a Regulatory Change, the
effect of which is to permit such Regulation Holder to hold, exercise or
transfer such Warrant or Conversion Shares in any other manner, the foregoing
proviso shall be deemed modified to permit the holding, exercise or transfer of
such Warrant or Conversion Shares in such other manner.
(b) Nothing in this Agreement (including without limitation
Sections 2.4 and 2.5) shall require any Regulated Holder to make a transfer of
Warrants or Conversion Shares in a manner not permitted by Section 2.6(a) (an
"Impermissible Transfer"). If any provision of this Agreement (including without
limitation Sections 2.4 and 2.5) would otherwise require any Regulated Holder to
make an Impermissible Transfer as a condition precedent to making a transfer of
Warrants or Conversion Shares in a manner permitted by Section 2.6(a) (a
"Permissible Transfer"), then such Regulated Holder shall not be required to
make such Impermissible Transfer as a condition precedent to making such
Permissible Transfer.
SECTION 2.8. ADJUSTMENT EVENT FEE.
If (a) any Adjustment Event shall occur within 90 days after the Optional
Redemption Date and (b) the Consideration Per Share for such Adjustment Event is
greater than the Redemption Price Per Share then, immediately upon the
occurrence of such Adjustment Event, Avatech shall pay to each Warrant
Securityholder an amount equal to the product of (x) the number of shares of
Voting Common Stock issuable upon exercise of the Warrants of such Warrant
Securityholder that were redeemed and (y) the difference between the
Consideration Per Share for such Adjustment Event and the Redemption Price Per
Share paid to such Warrant Securityholder.
7
"Adjustment Event" means:
(a) the completion of an Initial Public Offering by Avatech; or
(b) 25% or more of the:
(i) Common Stock on a Fully Diluted Basis (as defined in the
Warrants) on an aggregate basis is sold, exchanged, transferred or
otherwise disposed of by Avatech or any stockholder of Avatech (as part of
a single sale or a series of sales); or
(ii) assets of Avatech and its Subsidiaries on a consolidated
basis are, directly or indirectly, sold, exchanged, leased, transferred or
otherwise disposed of as an entirety or substantially as an entirety (in
one transaction or a series of transactions) to any Person or related group
of Persons; or
(c) the stockholders or directors of Avatech consummate a definitive
agreement or plan for any merger, consolidation, recapitalization,
reorganization, restructuring or other business combination of Avatech and,
after giving effect to such transaction, the stockholders of Avatech on the
Optional Redemption Date will no longer hold, directly or indirectly, securities
representing in the aggregate a percentage of the total voting power entitled to
vote in the election of directors, managers or trustees of the corporation
surviving or resulting from such transaction greater than 75% of the percentage
of such total voting power with respect to Avatech represented by the Common
Stock held by such stockholders on the Optional Redemption Date; or
(d) the stockholders or directors of Avatech consummate a definitive
agreement or plan for the liquidation or dissolution of Avatech.
"Consideration Per Share" means:
(i) in the case of any Adjustment Event described in clause (a)
or (b)(i) of the definition of Adjustment Event, the highest consideration
per share (if any) received by Avatech or any stockholder of Avatech from
the sale, exchange, transfer or other disposition by it of Common Stock in
connection with such Adjustment Event; and
(ii) in the case of any other Adjustment Event, the highest
consideration per share of Common Stock that would be received by any
stockholder of Avatech upon the disposition of all or substantially all of
the Common Stock or of the assets of Avatech (determined by reference to
all of the consideration received by the stockholders of Avatech (as
stockholders) for that portion actually disposed of in connection with such
Adjustment Event, or which would be received by such shareholders if
Avatech were liquidated immediately following receipt of the consideration
received by Avatech in connection with such Adjustment Event).
"Optional Redemption Date" means the date of any redemption of the Warrants
pursuant to Section 5.3 of the Warrants.
"Redemption Price Per Share" means the Optional Redemption Price (as
defined in the Warrants) which was paid to the Warrant Securityholders pursuant
to Section 5.3 of the Warrants (determined on a per share basis by reference to
the number of shares of Voting Common Stock issuable upon exercise of the
Warrants that were redeemed).
8
SECTION 2.9. NO RESTRICTIVE AGREEMENTS.
Avatech has not entered into and will not enter into any stockholders
rights agreement, registration rights agreement or similar arrangements the
performance by Avatech of the terms of which would in any manner restrict or
limit, or materially conflict with, the performance by Avatech of its
obligations under this Agreement.
ARTICLE III
REGISTRATION RIGHTS
SECTION 3.1. [RESERVED].
SECTION 3.2. INCIDENTAL REGISTRATION.
(a) If Avatech at any time proposes to register any of its securities
under the Securities Act (other than by a registration on Form S-4 or S-8 or any
successor or similar forms) whether for its own account or for the account of
the holder or holders of shares other than Registrable Shares (any such shares
with respect to any registration, "Other Shares") requested to be included in
such registration by the holder or holders thereof, it will each such time give
prompt written notice to all Warrant Securityholders of its intention to do so
and of such holders' rights under the Section 3.2. Upon the written request of
any such holder made within 20 days after the receipt of any such notice (which
request shall specify the Registrable Securities intended to be disposed of by
such holder and the intended method of disposition thereof), Avatech will use
its best efforts to effect the registration under the Securities Act of all
Registrable Securities which Avatech has been so requested to register by the
holders thereof, to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the Registrable
Securities so to be registered, by inclusion of such Registrable Securities in
the registration statement which covers the securities which Avatech proposes to
register; PROVIDED that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, Avatech shall
determine for any reason either not to register to delay registration of such
securities, Avatech may, at its election, give written notice of such
determination to each holder of Registrable Securities and, thereupon, (i) in
the case of a determination not to register, shall be relieved of its obligation
to register any Registration Expenses in connection therewith), and (ii) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay in
registering such other securities. Avatech will pay all Registration Expenses in
connection with each registration of Registrable Securities pursuant to this
Section 3.2.
(b) If Avatech at any time proposes to register any of its securities
under the Securities Act as contemplated by Section 3.2 and such securities are
to be distributed by or through one or more underwriters, Avatech will, if
requested by any holder of Registrable Securities as provided in this Section
3.2, use its best efforts to arrange for such underwriters to include all the
Registrable Securities to be offered and sold by such holder among the
securities to be distributed by such underwriters, PROVIDED that if the managing
underwriter of such underwritten offering shall inform Avatech and holders of
the Registrable Securities requesting such registration and all other holders of
any other shares of Common Stock which shall have exercised, in respect of such
underwritten offering, registration rights comparable to the rights under this
Section 3.2 by letter of its belief that inclusion in such distribution of all
or a specified number of such securities proposed to be distributed by such
underwriters would interfere with the successful marketing of the securities
being distributed by such underwriters (such letter to state the
9
basis of such belief and the approximate number of such Registrable Securities
and such Other Shares proposed so to be registered which may be distributed
without such effect), then Avatech may, upon written notice to all holders of
such Registrable Securities and holders of such Other Shares, reduce PRO RATA
(if and to be extent stated by such managing underwriter to be necessary to
eliminate such effect) the number of such Registrable Securities and Other
Shares the registration of which shall have been requested by each holder
thereof so that the resultant aggregate number of such Registrable Securities
and Other Shares so included in such registration, together with the number of
securities to be included in such registration for the account of Avatech, shall
be equal to the number of shares stated in such managing underwriter's letter.
SECTION 3.3. REGISTRATION PROCEDURES.
(a) If and whenever Avatech is required to effect the registration of
any Registrable Securities under the Securities Act as provided in Section 3.2.,
Avatech shall, as expeditiously as possible:
(i) prepare and (within 60 days after the end of the period
within which requests for registration may be given to Avatech or in any
event as soon thereafter as possible) file with the Commission the
requisite registration statement to effect such registration (including
such audited financial statements as may be required by the Securities Act)
and thereafter use its best efforts to cause such registration statement to
become and remain effective; PROVIDED that Avatech may discontinue any
registration of its securities which are not Registrable Securities at any
time prior to the effective date of the registration statement relating
thereto; PROVIDED FURTHER that before filing such registration statement or
any amendments thereto, Avatech will furnish to the counsel selected by the
holders of Registrable Securities which are to be included in such
registration copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel;
(ii) 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 and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement until the expiration of 90 days after such
registration statement becomes effective;
(iii) furnish to each seller of Registrable Securities covered by
such registration statement and each underwriter, if any, of the securities
being sold by such seller such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as such
seller and underwriter, if any, may reasonably request in order to
facilitate the public sale or other disposition of the Registrable
Securities owned by such seller;
(iv) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statements
under blue sky or similar laws of such jurisdictions as any seller thereof
and any underwriter of the securities being sold by such seller shall
reasonably request, 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 such
seller and underwriter to consummate the disposition in such jurisdictions
of the securities owned by such seller, except that Avatech shall not for
any such purpose be required to qualify generally to do business as a
foreign corporation in any
10
jurisdiction wherein it would not but for the requirements of this
subdivision (iv) be obligated to be so qualified, to subject itself to
taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(v) use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(vi) notify the holders of Registrable Securities and the
managing underwriter or underwriters, if any, promptly and confirm such
advice in writing promptly thereafter:
(A) when the registration statement, the prospectus or any
prospectus supplement related thereto or post-effective amendment
to the registration statement has been filed, and, with respect to
the registration statement or any post-effective amendment thereto,
when the same has become effective;
(B) of any request by the Commission for amendments or
supplements to the registration statement or the prospectus or for
additional information;
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the registration or the initiation
of any proceedings by any Person for that purpose; and
(D) of the receipt by Avatech of any notification with
respect to the suspension of the qualification of any Registrable
Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation or threat of any proceeding for such
purpose;
(vii) notify each seller of Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, upon Avatech' discovery
that, or upon the happening of any event as a result of which, the
prospectus included in such registration statement, as then in effect,
includes as untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such seller promptly prepare and
furnish to such seller and 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 a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing;
(viii) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the registration statement at the
earliest possible moment;
(ix) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar quarter after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
11
(x) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration
statement from and after a date not later than the effective date of such
Registration Statement;
(xi) use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange on which
any of the Common Stock is then listed and, if not so listed, to be listed
on the NASD automated quotation system and, if listed on the NASD automated
quotation system, use its best efforts to secure designation of all such
Registrable Securities covered by such registration statement as a NASDAQ
"national market system security" within the meaning of Rule 11Aa2-1 of the
Securities and Exchange Commission or, failing that, to secure NASDAQ
authorization for such Registrable Securities and, without limiting the
generality of the foregoing, to arrange for at least two market makers to
register as such with respect to such Registrable Securities with the NASD;
and
(xii) use its best efforts to provide a CUSIP number for the
Registrable Securities, not later than the effective date of the
registration.
Avatech may require each seller of Registrable Securities as to which any
registration is being effected to furnish Avatech such information regarding
such seller and the distribution of such securities as Avatech may from time to
time reasonably request in writing for purposes of preparing the relevant
registration statement and amendments and supplements thereto.
(b) Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from Avatech of the
occurrence of any event of the kind described in subdivision (vii) of Section
3.3(a), such holder will forthwith discontinue such holder's disposition of
Registrable Securities pursuant to the registration statement relating to such
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by subdivision (vii) of Section
3.3(a). In the event Avatech shall give any such notice, the periods specified
in subdivision (ii) of Section 3.3(a) shall be extended by the length of the
period from and including the date when each seller of any Registrable
Securities covered by such registration statement shall have received such
notice to the date on which each such seller has received the copies of the
supplemented or amended prospectus contemplated by subdivision (vii) of Section
3.3(a).
(c) If any such registration or comparable statement to any holder of
Registrable Securities by name or otherwise as the holder of any securities of
Avatech, then such holder shall have the right to require, in the event that
such reference to such holder by name or otherwise is not required by the
Securities Act or any similar federal statute then in force, the deletion of the
reference to such holder.
SECTION 3.4. UNDERWRITTEN OFFERINGS.
(a) [reserved];
(b) Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities not to sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale or distribution of or
otherwise dispose of any equity securities of Avatech, during the ten days prior
to and the 90 days after the effective date of any underwritten registration
pursuant to Section 3.2 has become effective, except as part of such
underwritten registration, whether or not such holder participates in such
registration, and except as otherwise permitted by the managing underwriter of
such underwriting (if any). Each holder of Registrable Securities agrees that
Avatech may instruct its transfer agent to place stop transfer notations in its
records to enforce this Section 3.4(b).
12
(c) [reserved];
(d) No Person may participate in any underwritten offering hereunder
unless such Person (i) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved, subject to the terms and
conditions hereof, by the Person or a majority of the Persons entitled to
approve such arrangements and (ii) completes and executes all agreements,
questionnaires, indemnities and other documents (other than powers of attorney)
required under the terms of such underwriting arrangements.
SECTION 3.5. INDEMNIFICATION.
(a) Avatech agrees to indemnify and hold harmless each holder of
Registrable Securities whose Registrable Securities are covered by any
registration statement, its directors and officers and each other Person, if
any, who controls such holder within the meaning of the Securities Act, against
any losses, claims, damages or liabilities, joint or several, to which any such
indemnified party may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, 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
securities were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, 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 Avatech will reimburse each such indemnified party
for any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, liability, action or
proceeding; PROVIDED that Avatech shall not be liable in any such case to the
extent that any such loss, claim, damage, liability (or action or proceeding in
respect thereof) or expense arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in such
registration statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement in reliance upon and in conformity
with written information furnished to Avatech by or on behalf of such holder
specifically for use in the preparation thereof. In addition, Avatech shall
indemnify any underwriter of such offering and each other Person, if any, who
controls any such underwriter within the meaning of the Securities Act in
substantially the same manner and to substantially the same extent as the
indemnity herein provided to each Indemnified Party. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
such holder or any such director, officer, underwriter or controlling person and
shall survive the transfer of such securities by such holder.
(b) Each prospective seller of Registrable Securities hereunder shall
indemnify and hold harmless (in the same manner and to the same extent as set
forth in subdivision (a) of this Section 3.5) Avatech, each director of Avatech,
each officer of Avatech and each other person, if any, who controls Avatech
within the meaning of the Securities Act, with respect to any statement or
alleged statement in or omission or alleged omission from such registration
statement, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereof, if such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to Avatech by or on behalf of
such seller specifically for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Any such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of Avatech or any
such director, officer or controlling person and shall survive the transfer of
such securities by such seller. The amount payable by any prospective seller of
Registrable Security with respect to the Indemnification set forth in this
subsection (b) in connection with any offering of securities will not exceed the
amount of net proceeds received by such prospective seller pursuant to such
offering.
13
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action or proceeding involving a claim referred to in the
preceding subdivisions of this Section 3.5, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action; PROVIDED that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 3.5, except to the extent that the indemnifying
party is actually prejudiced by such failure to give notice. In case any such
action is brought against an indemnified party, unless in such indemnified
party's reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
shall be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party similarly notified, to the extent that the
indemnifying party may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof. No indemnifying party shall, without the consent of the
indemnified party, consent to entry of any judgment or enter into any settlement
of any such action which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation. No indemnified party shall
consent to entry of any judgment or enter into any settlement of any such action
the defense of which has been assumed by an indemnifying party without the
consent of such indemnifying party.
(d) If the indemnification provided for in the preceding subdivisions
of this Section 3.5 is unavailable to an indemnified party in respect of any
expense, loss, claim, damage or liability referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such expense, loss, claim, damage or liability (i) in such proportion as is
appropriate to reflect the relative benefits received by Avatech on the one hand
and the holder or underwriter, as the case may be, on the other from the
distribution of the Registrable Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of Avatech on the one hand and of the holder
or underwriter, as the case may be, on the other in connection with the
statements or omissions which resulted in such expense, loss, damage or
liability, as well as any other relevant equitable considerations. The relative
benefits received by Avatech on the one hand and the holder or underwriter, as
the case may be, on the other in connection with the distribution of the
Registrable Securities shall be deemed to be in the same proportion as the total
net proceeds received by Avatech from the initial sale of the Registrable
Securities by Avatech to the purchaser bear to the gain realized by the selling
holder or the underwriting discounts and commissions received by the
underwriter, as the case may be. The relative fault of Avatech on the one hand
and of the holder or underwriter, as the case may be, on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or omission to state a material fact relates
to information supplied by Avatech, by the holder or by the underwriter and
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission; PROVIDED that the foregoing
contribution agreement shall not inure to the benefit of any indemnified party
if indemnification would be unavailable to such indemnified party by reason of
the proviso contained in the first sentence of subdivision (a) of this Section
3.5, and in no event shall the obligation of any indemnifying party to
contribute under this subdivision (d) exceed the amount that such indemnifying
party would have been obligated to pay by way of indemnification if the
indemnification provided for under subdivisions (a) or (b) of this Section 3.5
had been available under the circumstances.
Avatech and the holders of Registrable Securities agree that it would not
be just and equitable if contribution pursuant to this subdivision (d) were
determined by PRO RATA allocation (even if the holders
14
and any underwriters were treated as one entity for such purpose) or any other
method of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph and subdivision (c) of this
Section 3.5 The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subdivision (d), no holder of
Registrable Securities or underwriter shall be required to contribute any amount
in excess of the amount by which (i) in the case of any such holder, the net
proceeds received by such holder from the sale of Registrable Securities or (ii)
in the case of an underwriter, the total price at which the Registrable
Securities purchased by it and distributed to the public were offered to the
public exceeds, in any such case, the amount of any damages that such holder or
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. NOTICES.
All notices and other communications provided for hereunder shall be dated
and in writing and shall be deemed to have been given (i) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified in this
Section and telephonic confirmation of receipt thereof is obtained or (ii) if
given by mail, prepaid overnight courier or any other means, when received at
the address specified in this Section or when delivery at such address is
refused. Such notices shall be addressed to the appropriate party to the
attention of the person who executed this Agreement at the address or telecopy
number set forth under such party's signature below (or to the attention of such
other person or to such other address or telecopy number as such party shall
have furnished to each other party in accordance with this Section 4.1).
SECTION 4.2. BINDING NATURE OF AGREEMENT.
This Agreement shall be binding upon the inure to the benefit of and be
enforceable by the parties hereto or their successors in interest, except as
expressly otherwise provided herein.
SECTION 4.3. DESCRIPTIVE HEADINGS.
The descriptive headings of the several sections and paragraphs of this
Agreement are inserted for reference only and shall not limit or otherwise
affect the meaning hereof.
SECTION 4.4. SPECIFIC PERFORMANCE.
Without limiting the rights of each party hereto to pursue all other legal
and equitable rights available to such party for the other parties' failure to
perform their obligations under this Agreement, the parties hereto acknowledge
and agree that the remedy at law for any failure to perform their obligations
15
hereunder would be inadequate and that each of them, respectively, shall be
entitled to specific performance, injunctive relief or other equitable remedies
in the event of any such failure.
SECTION 4.5. GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE
RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF THE STATE OF NORTH
CAROLINA. EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF
NORTH CAROLINA AND OF ANY NORTH CAROLINA STATE COURT SITTING IN MECKLENBURG
COUNTY FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
SUCH PARTY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH OF THE
PARTIES HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED
FOR NOTICES IN SECTION 4.1. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF
ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.
SECTION 4.6. COUNTERPARTS.
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
SECTION 4.7. SEVERABILITY.
In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in each other respect and of the remaining
provisions contained herein shall not be in any impaired hereby. It being
intended that all of the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
SECTION 4.8. ENTIRE AGREEMENT.
This Agreement is intended by the parties hereto as a final and complete
expression of their agreement and undertaking in respect to the subject matter
contained herein. This Agreement supersedes all prior agreement and
understandings, written or oral, between the parties with respect to such
subject matter.
SECTION 4.9. AMENDMENT TO WAIVER.
Any provision of this Agreement may be amended if, but only if, such
amendment is in writing and is signed by Avatech and the Warrantholders. Any
provision may be waived if, but only if, such waiver is in writing and is signed
by the party or parties waiving such provision and for whose benefit such
provision is intended.
16
SECTION 4.10. NO THIRD PARTY BENEFICIARIES.
Nothing in this Agreement shall convey any rights upon any person or entity
which is not a party or an assignee of a party to this Agreement.
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the date first above written.
AVATECH SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
----------------------------------
Title: Chairman & Chief Executive Off.
---------------------------------
Address: 00000 XXXXXXXX XX., Xxxxx X
-----------------------------
Owings Mills, MD. 21117
-----------------------------
Telecopy: 000-000-0000
-----------------------------
[STOCKHOLDERS IDENTIFIED IN
2.4, 2.5, AND, IF DRAG RIGHTS OPTION
USED, 2.6]
By: - NONE -
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address:
-----------------------------
-----------------------------
Telecopy:
-----------------------------
THE CIT GROUP/BUSINESS CREDIT, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address: The CIT Group/Business
Credit, Inc.
Two First Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-0000
Attn: Regional Credit Manager
Telecopy: (000) 000-0000
Telephone:
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered as of the date first above written.
AVATECH SOLUTIONS, INC.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address: Avatech Solutions, Inc.
00000 Xxxxxxxx Xxxxx, Xxxxx X
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Fax No. 000-000-0000
THE CIT GROUP/BUSINESS CREDIT, INC.
By: Xxxxxxxx X. Xxxxxxxx
-------------------------------------
Name: XXXXXXXX X. XXXXXXXX
-----------------------------------
Title: ASSISTANT VICE PRESIDENT
----------------------------------
Address: The CIT Group/Business
Credit, Inc.
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000-000
Attn: Regional Credit Manager
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
