EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT, dated as of June 25, 2004, is made and
entered into by and among Robotic Vision Systems, Inc., a Delaware corporation
(the "Company") and RVSI Investors, L.L.C., a Delaware limited liability company
("Investor"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in Section 1 hereto.
WITNESSETH:
WHEREAS, the Company, the Investor and PNC Bank, National Association, as
agent (the "Agent"), have entered into a that certain Amended and Restated
Revolving Credit and Security Agreement dated as of November 26, 2003 (as
amended, restated or otherwise modified from time to time, the "Loan
Agreement"), pursuant to the terms of which the Investor and Agent have made
loans and certain other financial accommodations to Company;
WHEREAS, the Company, the Investor and the Agent have entered into that
certain First Amendment to Amended and Restated Revolving Credit and Security
Agreement dated as of even date herewith (as amended, restated or otherwise
modified from time to time, the "Amendment"), pursuant to the terms of which the
Investor, the Agent and the Company have agreed to amend the terms of the Loan
Agreement and make additional loans and other financial accommodations to the
Company;
WHEREAS, as consideration for the Investor entering into the Amendment and
making the additional loans and other financial accommodations pursuant thereto,
the Company delivered to the Investor that certain Common Stock Warrant dated as
of June 25, 2004 (as amended, restated or otherwise modified from time to time,
the "Warrant") to purchase shares of Common Stock; and
WHEREAS, the Warrant is exercisable for Common Stock in accordance with
the terms thereof.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" shall mean, with respect to any specified Person, any other
Person that, directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, the Person
specified. For purposes of this definition, control of a Person means the power,
directly or indirectly, to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agreement" shall mean this Registration Rights Agreement as originally
executed and as amended, supplemented or restated from time to time.
"Board" shall mean the Board of Directors of the Company.
"Business Day" shall mean each day other than a Saturday, a Sunday or any
other day on which banking institutions in the State of New York are authorized
or obligated by law or executive order to be closed.
"Closing Date" shall mean June 25, 2004.
"Common Stock" shall mean the common stock of the Company, par value $0.01
per share.
"Company" shall have the meaning set forth in the introductory paragraph
hereto.
"Effectiveness Deadline Date" shall mean the earlier of (i) one hundred
fifty (150) days after the date of the issuance of the Warrant and (ii) the
effectiveness of a registration statement registering any shares of Common Stock
the issuance by the Company of which would make available to the Company
additional loan advances pursuant to the Amendment.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations thereunder, all
as the same shall be in effect at the time.
"Filing Deadline Date" shall mean the earlier of (i) sixty (60) days after
the date of the issuance of the Warrant and (ii) the date of filing of a
registration statement with respect to any shares of Common Stock the issuance
by the Company of which would make available to the Company additional loan
advances pursuant to the Amendment.
"Holder" shall mean Investor and any assignee who becomes a party to this
Agreement as provided in Section 7(h), in each case in its capacity as a holder
of Registrable Securities. For purposes of this Agreement, the Company may deem
and treat the registered holder of a Registrable Security as the Holder and
absolute owner thereof, unless notified to the contrary in writing by the
registered Holder thereof.
"Investor" shall have the meaning set forth in the introductory paragraph
hereto.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" shall mean an individual, corporation, partnership, limited
liability company, association, trust, joint venture, unincorporated
organization or any government, governmental department or agency or political
subdivision thereof.
"Registrable Securities" shall mean at any time (i) any Common Stock
issued or issuable upon exercise, in whole or in part, of the Warrant; and (ii)
any other securities issued or issuable by way of conversion, exchange, stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other distribution with respect to or
in replacement of any shares referred to in (i) and (ii) above; provided,
however, such Registrable Securities shall cease to be Registrable Securities
when (A) a registration statement with respect to the sale of such Registrable
Securities shall have become effective under the Securities Act and such
Registrable Securities shall have been disposed of in accordance with such
registration statement, (B) such Registrable Securities shall have been sold in
accordance with Rule 144 (or any successor provision) under the Securities Act
or (C) they have ceased to be outstanding.
"Registration Expenses" shall mean (i) the fees and disbursements of
counsel and independent public accountants for the Company incurred in
connection with the Company's performance of or compliance with this Agreement,
including the expenses of any special audits or "comfort" letters required by or
incident to such performance and compliance, and any premiums and other costs of
policies of insurance obtained by the Company against liabilities arising out of
the sale of any securities and (ii) all registration, filing and stock exchange
or NASD fees, all fees and expenses of complying with securities or "blue sky"
laws, all fees and expenses of custodians, transfer agents and registrars, all
printing expenses, messenger and delivery expenses, any reasonable fees and
disbursements of one common counsel retained by the holders of a majority of
Registrable Securities (not to exceed $10,000 in
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the aggregate) and transfer taxes, if any; provided, however, "Registration
Expenses" shall not include any underwriting or brokerage commissions or
discounts associated with effecting any sales of Registrable Securities that may
be offered, which expenses shall be borne by each Holder of Registrable
Securities on a pro rata basis with respect to the Registrable Securities so
sold.
"SEC" shall mean the Securities and Exchange Commission and any successor
thereto.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations thereunder, all as the
same shall be in effect at the time.
"Shelf Registration Statement" shall have the meaning set forth in Section
2(a) hereof.
"Warrant" shall have the meaning set forth in the recitals hereto.
Section 2. Shelf Registration Statement; Filing and Effectiveness;
Black-Out Periods.
a. Shelf Registration. The Company shall as promptly as practicable,
but in no event later than the Filing Deadline Date, prepare and file with the
SEC a shelf registration statement under the Securities Act on Form S-3 or Form
S-1, if Form S-3 is not available (or any similar or successor forms), that will
permit the resale of all Registrable Securities under such Warrant (the "Shelf
Registration Statement") and will use its best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as soon as reasonably
practicable thereafter but in no event later than the Effectiveness Deadline
Date. The Shelf Registration Statement and any form of prospectus included
therein (or prospectus supplement relating thereto) shall reflect the plan of
distribution or method of sale as the Holders may from time to time notify the
Company. To the extent permitted by applicable law, the Shelf Registration
Statement shall be in the shelf format, permitting the offer and sale of the
Registrable Securities on a delayed or continuous basis pursuant to Rule 415
under the Securities Act following the effectiveness of such Shelf Registration
Statement.
In the event that the Company does not file a Shelf Registration Statement
required to be filed pursuant to this Section 2(a) with the SEC on or before the
applicable Filing Deadline Date, the Company shall pay to the Investor, as
liquidated damages and not as a penalty, in immediately available funds, $333
per calendar day after the applicable Filing Deadline Date until filed, which
cumulative amount shall be payable on the first Business Day of each calendar
month following the Filing Deadline Date. In the event that the Shelf
Registration Statement required to be filed pursuant to this Section 2(a) with
the SEC is not declared effective by the SEC on or before the applicable
Effectiveness Deadline Date (whether or not filed, and whether or not the
Company is required to pay the amounts described in the immediately preceding
sentence), the Company shall pay to the Investor, as liquidated damages and not
as a penalty, in immediately available funds, $333 per calendar day after the
applicable Effectiveness Deadline Date until declared effective, which
cumulative amount shall be payable on the first Business Day of each calendar
month following the Effectiveness Deadline Date.
b. Effectiveness. The Company shall use its best efforts to keep the
Shelf Registration Statement continuously effective for the period beginning on
the date on which the Shelf Registration Statement is declared effective and
ending on the date that all of the Registrable Securities registered under the
Shelf Registration Statement have been sold. During the period that the Shelf
Registration Statement is effective, the Company shall supplement or make
amendments to the Shelf Registration Statement, if required by the Securities
Act or if reasonably requested by the Holders (whether or not required by the
form on which the securities are being registered), including to reflect any
specific plan of distribution or method of sale, and shall use its best efforts
to have such supplements and amendments declared effective, if required, as soon
as practicable after filing.
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c. Black-Out Periods. Notwithstanding anything herein to the
contrary, the Company shall have the right, exercisable from time to time by
delivery of a notice authorized by the Chief Executive Officer or the Chairman
of the Board of the Company, on not more than two occasions in any 12-month
period, to require the Holders not to sell pursuant to the Shelf Registration
Statement or to suspend the effectiveness thereof if at the time of the delivery
of such notice, the Board has reasonably and in good faith determined that such
registration and offering, continued effectiveness or sale would materially
interfere with any material transaction involving the Company; provided,
however, that in no event shall the restricted period extend for more than 60
consecutive days or more than 90 days in the aggregate during any twelve
(12)-month period. The Company shall (i) give the Holders same Business Day
written notice in the event that the Company has suspended sales of Registrable
Securities under this Section 3, (ii) give the Holders same Business Day written
notice of the completion of such offering or material transaction and (iii)
promptly file any amendment necessary for any registration statement or
prospectus of the Holders in connection with the completion of such event.
Section 3. Registration Procedures.
a. In connection with the filing of any registration statement as
provided in this Agreement, the Company shall use its best efforts to, as
expeditiously as reasonably practicable:
(i) prepare and file with the SEC the requisite registration
statement (including a prospectus therein and any supplement thereto) to
effect such registration and use its best efforts to cause such
registration statement to become effective; provided, however, that before
filing such registration statement or any amendments or supplements
thereto, the Company will furnish copies of all such documents proposed to
be filed to counsel for the Holders and provide reasonable time for such
Holders and their counsel to comment upon such documents;
(ii) 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 maintain the effectiveness of
such registration and to comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement during the period in which such registration
statement is required to be kept effective;
(iii) furnish to each Holder of the securities being
registered, without charge, such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits) other than those which are being
incorporated into such registration statement by reference, such number of
copies of the prospectus contained in such registration statements
(including each complete 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, including documents incorporated by reference, as the Holders
may reasonably request;
(iv) register or qualify all Registrable Securities under such
other securities or "blue sky" laws of such jurisdictions as the Holders
and the underwriters of the securities being registered, if any, shall
reasonably request, to keep such registration or qualification in effect
for so long as such registration statement remains in effect, and take any
other action which may be reasonably necessary or advisable to enable the
Holders to consummate the disposition in such jurisdiction of the
securities owned by the Holders, except that the Company shall not for any
such purpose be required to qualify generally to do business as a foreign
company, or to consent to general service of process in any such
jurisdiction, or to be subject to any material tax obligation in any such
jurisdiction where it is not then so subject;
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(v) immediately notify the Holders at any time when the
Company becomes aware that 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, as
then in effect, includes an 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 light of the circumstances
under which they were made, and, at the request of the Holders, promptly
prepare, file with the SEC and furnish to the Holders 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 under which they were made and in connection
therewith, prepare, file and cause to be declared effective any required
post-effective amendments to the Shelf Registration Statement or any
additional or supplemental registration statements;
(vi) comply or continue to comply in all material respects
with the Securities Act and the Exchange Act and with all applicable rules
and regulations of the SEC thereunder so as to enable any Holder to sell
its Registrable Securities pursuant to Rule 144 promulgated under the
Securities Act, as further agreed to in Section 6 hereof;
(vii) in connection with the preparation and filing of each
registration statement, prospectus or amendment or supplement thereto
registering Registrable Securities, the Company will give the Holders on
whose behalf the Registrable Securities are to be registered and their
underwriters, counsel and accountants the opportunity to participate in
such preparation and filing, and in connection therewith, will give such
Holders access to its books and records, officers and counsel to conduct a
reasonable investigation; provided that such Holders agree to maintain any
material non-public information regarding the Company in confidence in
accordance with Regulation F-D under the Securities Act;
(viii) not file any registration statement, prospectus or
amendment or supplement thereto to which the Holders shall have reasonably
objected on the grounds that such registration statement, prospectus,
amendment or supplement does not comply in all material respects with the
requirements of the Securities Act, having been furnished with a copy
thereof at least five Business Days prior to the filing thereof;
(ix) make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at
least 12 months, but not more than 18 months, beginning with the first
calendar month after the effective date of such registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of
the Securities Act;
(x) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement;
(xi) cooperate with the Holders to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any Securities Act legend; and
enable certificates for such Registrable Securities to be issued for such
number of shares and registered in such names as the selling Holders may
reasonably request in writing at least two Business Days prior to any sale
of Registrable Securities;
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(xii) list and cause to remain listed all Registrable
Securities covered by such registration statement on any securities
exchange or national quotation system on which any such class of
securities is then listed or quoted and cause to be satisfied all
requirements and conditions of such securities exchange or national
quotation system to the initial and continued listing or quoting of such
securities that are reasonably within the control of the Company
including, without limitation, registering the applicable class of
Registrable Securities under the Exchange Act, if appropriate, and using
its best efforts to cause such registration to become and remain effective
pursuant to the rules of the SEC;
(xiii) in connection with any sale, transfer or other
disposition by any Holder of any Registrable Securities pursuant to any
registration statement or Rule 144 promulgated under the Securities Act,
cooperate with such Holder to facilitate the timely preparation and
delivery of certificates representing the Registrable Securities to be
sold and not bearing any Securities Act legend, and enable certificates
for such Registrable Securities to be for such number of shares and
registered in such name as the selling Holders may reasonably request in
writing at least three Business Days prior to any sale of Registrable
Securities;
(xiv) notify each Holder, promptly after and effective on the
same Business Day it shall receive notice thereof, of the time when such
registration statement, or any post-effective amendments to the
registration statement, shall have become effective, or a supplement to
any prospectus forming part of such registration statement has been filed
with the SEC;
(xv) notify each Holder of any request by the SEC for the
amendment or supplement of such registration statement or prospectus for
additional information; and
(xvi) advise effective on the same Business Day each Holder,
promptly after it shall receive notice or obtain knowledge thereof, of (A)
the issuance of any stop order, injunction or other order or requirement
by the SEC suspending the effectiveness of such registration statement or
the initiation or threatening of any proceeding for such purpose and use
all commercially reasonable efforts to prevent the issuance of any stop
order, injunction or other order or requirement or to obtain its
withdrawal if such stop order, injunction or other order or requirement
should be issued, (B) the suspension of the registration of the subject
shares of the Registrable Securities in any state jurisdiction and (C) the
removal of any such stop order, injunction or other order or requirement
or proceeding or the lifting of any such suspension.
b. In connection with the filing of any registration statement
covering Registrable Securities, each selling Holder shall furnish in writing to
the Company such information regarding such Holder (and any of its Affiliates),
the Registrable Securities to be sold, the intended method of distribution of
such Registrable Securities and such other information requested by the Company
as is necessary or advisable for inclusion in the registration statement
relating to such offering pursuant to the Securities Act. Such writing shall
expressly state that it is being furnished to the Company for use in the
preparation of a registration statement, preliminary prospectus, supplementary
prospectus, final prospectus or amendment or supplement thereto, as the case may
be.
Each Holder agrees by acquisition of the Registrable Securities that upon
receipt of any notice from the Company of the happening of any event of the kind
described in paragraph Section 3(a)(v), such Holder will forthwith discontinue
its 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 Section
3(a)(v).
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Each Holder agrees (i) that it will effect no stabilization transactions
or engage, directly or indirectly, in any stabilization activity, as defined and
prohibited by Regulation M, promulgated under the Exchange Act, in connection
with any offering of any securities of the Company and (ii) that it will not,
directly or indirectly, bid for, purchase or attempt to induce any person to bid
for or purchase any securities of the Company during the restricted period, as
defined and prohibited by Regulation M, in connection with the distribution of
the Registrable Securities.
Section 4. Piggy-Back Registration; Cut-back.
a. If, at any time commencing after the date hereof, the Company
proposes to register any of its securities under the Securities Act on a
registration statement that may be used for the registration of the Registrable
Securities (other than in connection with a merger, pursuant to Form X-0, X-0 or
comparable registration statement, in connection with a registration requested
pursuant to Section 2 hereof or in connection with an exchange offer or an
offering of securities solely to the Company's existing stockholders) it will
give written notice by registered mail, at least thirty (30) business days prior
to the filing of each such registration statement, to all Holders of the
Registrable Securities of its intention to do so. If Holders of the Registrable
Securities notify the Company within twenty (20) days after receipt of any such
notice of its or their desire to include any Registrable Securities in such
proposed registration statement, the Company shall afford such Holders of the
Registrable Securities the opportunity to have any such Registrable Securities
registered under such registration statement.
b. Notwithstanding the provisions of Section 4(a): (A) the Company
shall have the right any time after it shall have given written notice pursuant
to this Section 4 (irrespective of whether a written request for inclusion of
any such securities shall have been made) to elect to postpone or not to file
any such proposed registration statement, or to withdraw the same after filing
but prior to the effective date thereof, and (B) if the underwriter or
underwriters, if any, of any such proposed public offering shall be of the
reasonable opinion that the total amount or kind of securities held by the
Holders of Registrable Securities and any other persons or entities entitled to
be included in such public offering would adversely affect the success of such
public offering, then the amount of securities to be offered for the accounts of
holders of Registrable Securities shall be reduced pro rata to the extent
necessary to reduce the total amount of securities to be included in such public
offering to the amount reasonably recommended by the underwriter or underwriters
thereof (provided the number of shares to be included on behalf of such Holders
of Registrable Securities shall not be reduced below 10% of the total number of
shares ultimately offered for sale on behalf of the Company and all such Holders
of Registrable Securities pursuant to such public offering), whereupon the
Company shall only be obligated to register such reduced portion of the
Registrable Securities.
Section 5. Indemnification.
a. Indemnification by the Company. In the event of any registration
of any Registrable Securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless each Holder, its
direct and indirect partners, officers, directors, trustees, agents, equity
holders, managed or advised accounts and investment advisers, and each Person,
if any, who controls or is alleged to control such Holder within the meaning of
the Securities Act or the Exchange Act, against any losses, claims, damages, and
expenses (including, without limitation, reasonable attorneys', accountants' and
expert witness fees and expenses), joint or several, to which the Holders or any
such indemnitees may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages, liabilities and expenses (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 the registration statement under which such
Registrable Securities were registered and sold under the Securities Act, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or
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any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or any violation of the
Securities Act, the Exchange Act or state securities laws or rules thereunder by
the Company relating to any action or inaction by the Company in connection with
such registration, and the Company will reimburse each Holder for any reasonable
legal or any other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, liability, action or
proceedings; provided, however, that the Company 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 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 the Company by any Holder specifically
stating that it is for use in the preparation thereof; and provided, further,
that the Company shall not be liable to the Holders or any other Person who
controls such Holder within the meaning of the Securities Act or the Exchange
Act 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 such
Person's failure to send or give a copy of the final prospectus or supplement to
the Persons asserting an untrue statement or alleged untrue statement or
omission or alleged omission at or prior to the written confirmation of the sale
of Registrable Securities to such Person if such statement or omission was
corrected in such final prospectus or supplement and furnished to such Holder a
reasonable time prior to such sale by such Holder. Such indemnity shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Holders or any such controlling Person and shall survive the transfer of
such securities by the Holders.
b. Indemnification by the Holders. The Company may require, as a
condition to including any Registrable Securities in any registration statement
pursuant to this Agreement, that the Company shall have received an undertaking
satisfactory to it from each Holder of such Registrable Securities to indemnify
and hold harmless (in the same manner and to the same extent as set forth in
Section 5(a)) the Company, each member of the Board and each officer of the
Company who signs the registration statement and each other Person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act, with respect to any untrue statement of a material fact in or omission to
state a material fact from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if and only to the extent that such untrue
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company by each Holder giving such indemnification
specifically stating that it is for use in the preparation of such registration
statement, preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any such
Board member, officer, or controlling Person and shall survive the transfer of
such securities by any Holder. The obligation of a Holder to indemnify will be
several, not joint and several, among such Holders of Registrable Securities and
the liability of each such Holder of Registrable Securities will be in
proportion to and limited in all events to the net amount received by such
Holder from the sale of Registrable Securities pursuant to such registration
statement.
c. Notices of Claims, etc. 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 paragraphs of this Section 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, however, 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 paragraphs of this Section 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
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conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party shall be entitled to assume the
defense thereof, for itself, if applicable, together with any other indemnified
party similarly notified, 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 the indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof.
d. Indemnification Payments. To the extent that the indemnifying
party does not assume the defense of an action brought against the indemnified
party as provided in Section 5(c), the indemnified party (or parties if there is
more than one) shall be entitled to the reasonable legal expenses of counsel for
the indemnified party (or parties). In such event, however, the indemnifying
party will not be liable for any settlement effected without the written consent
of such indemnifying party, which consent shall not be unreasonably withheld.
The indemnification required by this Section 5 shall be made by periodic
payments of the amount thereof during the course of an investigation or defense,
as and when bills are received or expense, loss, damage or liability is
incurred. The indemnifying party shall not settle any claim without the consent
of the indemnified party unless such settlement involves a complete release of
such indemnified party without any admission of liability by the indemnified
party.
e. Contribution. If, for any reason, the foregoing indemnity is
unavailable, or is insufficient to hold harmless an indemnified party, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of the expense, loss, damage or liability, in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and the indemnified party on the other (determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state therein a material
fact relates to information supplied by the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission). No indemnified party guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party, and the liability for contribution of
each Holder of Registrable Securities will be several and not joint and several
and will be in proportion to and limited in all events to the net amount
received by such Holder from the sale of Registrable Securities pursuant to such
registration statement.
Section 6. Covenants Relating To Rule 144. The Company will file in a
timely manner, information, documents and reports in compliance with the
Exchange Act and will, at its expense, forthwith upon the request of the
Holders, deliver to the Holders a certificate, signed by the Company's principal
financial officer, stating (a) the Company's name, address and telephone number
(including area code), (b) the Company's Internal Revenue Service identification
number, (c) the Company's SEC file number, (d) the number of Registrable
Securities outstanding as shown by the most recent report or statement published
by the Company, (e) whether the Company has filed the reports required to be
filed under the Exchange Act for a period of at least 90 days prior to the date
of such certificate and in addition has filed the most recent annual report
required to be filed thereunder and (f) such other information as required by,
and so long as necessary to permit sales of Registrable Securities pursuant to,
Rule 144 under the Securities Act.
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Section 7. Miscellaneous.
a. Termination. The rights of each Holder under this Agreement shall
terminate upon the date that all of the Registrable Securities held by such
Holder may be sold under Rule 144(k) (or any successor provision) under the
Securities Act.
b. Expenses. All Registration Expenses incurred in connection with
any Shelf Registration Statement under Section 2 shall be borne by the Company,
whether or not any registration statement related thereto becomes effective.
c. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more such counterparts have been signed by
each of the parties and delivered to each of the other parties.
d. Applicable Law; Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York. The parties
consent to the non-exclusive jurisdiction of the United States District Court
for the Southern District of New York in connection with any civil action
concerning any controversy, dispute or claim arising out of or relating to this
Agreement, or any other agreement contemplated by, or otherwise with respect to,
this Agreement or the breach hereof, unless such court would not have subject
matter jurisdiction thereof, in which event the parties consent to the
jurisdiction of the State of New York.
e. Waiver Of Jury Trial. THE PARTIES HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.
f. Prior Agreement; Construction; Entire Agreement. This Agreement,
including the exhibits and other documents referred to herein (which form a part
hereof), constitutes the entire agreement of the parties with respect to the
subject matter hereof, and supersedes all prior agreements and understandings
between the parties, and all such prior agreements and understandings are merged
herein and shall not survive the execution and delivery hereof. This Agreement
is in addition to and not in lieu of that certain Registration Rights Agreement
dated as of November 26, 2003 made by and between the Company and the Investor.
g. Notices. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be delivered by
hand or sent, postage prepaid, by registered, certified or express mail or
reputable overnight courier service or be telecopier and shall be deemed given
when so delivered by hand or, if mailed, three days after mailing (one Business
Day in the case of express mail or overnight courier service), addressed as
follows:
If to the Company:
Robotic Vision Systems, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxxxxx 00000
If to the Investor:
c/o Equity Group Investments, L.L.C.
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
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If to any other Holder of Registrable Securities, to such address as such
Holder specifies in such Holder's joinder to this Agreement.
h. Successors And Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. Each party hereto shall be permitted to assign any of its
rights hereunder to any third party, provided that (ii) such transfer is
effected in accordance with applicable federal and state securities laws, (ii)
such assignee becomes a party to this Agreement by executing a joinder hereto,
(iii) the Company is given written notice by the relevant Holder of the transfer
stating the name and address of the assignee and identifying the securities with
respect to which such registration rights are being assigned, and (iv) in the
event of any merger or other similar transaction in which the Company is not the
surviving entity, the Company will cause such successor to assume the
obligations of the Company under this Agreement.
i. Headings. Headings are included solely for convenience of
reference and if there is any conflict between headings and the text of this
Agreement, the text shall control.
j. Amendments And Waivers. The provisions of this Agreement may be
amended or waived at any time only by the written agreement of the Company and
the Holders of three-fourths of the Registrable Securities; provided, however,
that the provisions of this Agreement may not be amended or waived without the
consent of the Holders of all the Registrable Securities adversely affected by
such amendment or waiver if such amendment or waiver adversely affects a portion
of the Registrable Securities but does not so adversely affect all of the
Registrable Securities; provided, further, that the provisions of the preceding
provision may not be amended or waived except in accordance with this sentence.
Any waiver, permit, consent or approval of any kind or character on the part of
any such Holders of any provision or condition of this Agreement must be made in
writing and shall be effective only to the extent specifically set forth in
writing. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each Holder of Registrable Securities and the Company.
k. Interpretation; Absence Of Presumption. For the purposes hereof,
(i) words in the singular shall be held to include the plural and vice versa and
words of one gender shall be held to include the other gender as the context
requires, (ii) the terms "hereof," "herein," and "herewith" and words of similar
import shall, unless otherwise stated, be construed to refer to this Agreement
as a whole and not to any particular provision of this Agreement, and Section,
paragraph or other references are to the Sections, paragraphs, or other
references to this Agreement unless otherwise specified, (iii) the word
"including" and words of similar import when used in this Agreement shall mean
"including, without limitation," unless the context otherwise requires or unless
otherwise specified, (iv) the word "or" shall not be exclusive, and (v)
provisions shall apply, when appropriate, to successive events and transactions.
This Agreement shall be construed without regard to any presumption
or rule requiring construction or interpretation against the party drafting or
causing any instruments to be drafted.
l. Severability. If any provision of this Agreement shall be or
shall be held or deemed by a final order by a competent authority to be invalid,
inoperative or unenforceable, such circumstance shall not have the effect of
rendering any other provision or provisions herein contained invalid,
inoperative or unenforceable, but this Agreement shall be construed as if such
invalid, inoperative or unenforceable provision had never been contained herein
so as to give full force and effect to the remaining such terms and provisions.
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m. Specific Performance; Other Rights. The parties recognize that
various other rights rendered under this Agreement are unique and, accordingly,
the parties shall, in addition to such other remedies as may be available to
them at law or in equity, have the right to enforce the rights under this
Agreement by actions for injunctive relief and specific performance.
n. Further Assurances. In connection with this Agreement, as well as
all transactions and covenants contemplated by this Agreement, each party hereto
agrees to execute and deliver or cause to be executed and delivered such
additional documents and instruments and to perform or cause to be performed
such additional acts as may be necessary or appropriate to effectuate, carry out
and perform all of the terms, provisions and conditions of this Agreement and
all such transactions and covenants contemplated by this Agreement.
o. No Waiver. The waiver of any breach of any term or condition of
this Agreement shall not operate as a waiver of any other breach of such term or
condition or of any other term or condition, nor shall any failure to enforce
any provision hereof operate as a waiver of such provision or of any other
provision hereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties have executed and delivered this
Registration Rights Agreement as of the date first above written.
ROBOTIC VISION SYSTEMS, INC., a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
RVSI INVESTORS, L.L.C., a
Delaware limited liability company
By: EGI-Fund (02-04) Investors, L.L.C.
Its: Managing Member
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
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