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Exhibit 10.29
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of March 27, 2000 (this
"Agreement"), is made by and between IBIZ TECHNOLOGY CORP., a Florida
corporation, with headquarters located at 0000 Xxxx Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000 (the "Company") and LITES TRADING CO. (the "Purchaser").
W I T N E S S E T H:
WHEREAS, pursuant to a Securities Purchase Agreement, dated as of the
date hereof, among the Purchaser and the Company (the "Securities Purchase
Agreement"), the Company has agreed to issue and sell to the Purchaser, (i)
$1,600,000 aggregate principal amount of the Company's 7% Convertible Debentures
(the "Debentures") and (ii) warrants (the "Warrants") to purchase 375,000 shares
of the Company's Common Stock, par value $.001 per share (the "Common Stock");
WHEREAS, pursuant to the terms of the Debentures and the Warrants, (i)
upon the conversion of the Debentures, (ii) in lieu of dividend payments on the
Debentures and (iii) upon exercise of the Warrants, the Company will, in each
case, issue to the Purchaser shares of Common Stock (such shares of Common Stock
are collectively referred to herein as the "Shares"); and
WHEREAS, to induce the Purchasers to execute and deliver the Securities
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended (the "Securities Act"), and
applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Purchaser hereby agree as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
(a) "Effectiveness Deadline" shall have the meaning
set forth in section 2(a)(i) hereof.
(b) "Filing Deadline" shall have the meaning set
forth in Section 2(a)(i) hereof.
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(c) "Registration Statement" means a registration
statement or registration statements of the Company filed under the Securities
Act covering Registrable Securities relating to the Debentures and Warrants.
(d) "Register," "Registered," and "Registration"
refer to a registration effected by preparing and filing a Registration
Statement or Statements in compliance with the Securities Act and pursuant to
Rule 415 under the Securities Act or any successor rule providing for offering
securities on a continuous basis ("Rule 415"), and the declaration or ordering
of effectiveness of such Registration Statement by the United States Securities
and Exchange Commission (the "Commission").
(e) "Registrable Securities" means the Shares.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings set-forth in the Securities Purchase Agreement.
2. REGISTRATION.
(a) MANDATORY REGISTRATIONS.
(i) Registration Statement. The Company shall
prepare, as soon as practicable, but in no event later than 20 days after the
Closing Date (as defined in the Securities Purchase Agreement) (the "Filing
Deadline"), file with the Commission a Registration Statement or Registration
Statements (as necessary) on Form SB-2 or Form S-3, as appropriate, covering the
resale of all of the Registrable Securities. In the event that Form SB-2 or Form
S-3, as appropriate, is unavailable and/or inappropriate for such a
registration, the Company shall use such other form as is available and
appropriate for such a registration. Any Registration Statement prepared
pursuant hereto shall register for resale at least that number of shares of
Common Stock equal to the product of (x) 2.0 and, (y) the sum of (i) the maximum
number of Shares that are issuable upon conversion of the Debentures, on the
date of filing, and (ii) the maximum number of Shares issuable upon exercise of
the Warrants, in each case, without regard to any limitation on any holder's
ability to convert any of the Warrants or the Debentures. Such Registration
Statement shall state that, in accordance with Rule 416 under the Securities
Act, it also covers such indeterminate number of additional Shares as may become
issuable upon conversion of such Debentures or exercise of such Warrants (i)
resulting from any adjustment in the applicable Conversion Price of such
Debentures or the Exercise Price of such Warrants or (ii) to prevent dilution
resulting from stock splits or stock dividends. If at any time two (2.0) times
the sum of (i) the maximum number of Shares into which the Debentures may be
converted and (ii) the maximum number of Shares issuable upon exercise of the
Warrants, exceeds the total number of Shares so registered, the Company shall,
within five (5) business days after receipt of a written notice from the
Purchaser, either (i) amend the Registration Statement or Registration
Statements filed by the Company pursuant to this section, if such Registration
Statement has not been declared effective by the Commission at that time, to
register all of the Shares into which the Debentures and the Warrants may be
converted, or (ii) if such Registration Statement has been declared effective by
the Commission at that time, file with the Commission an additional Registration
Statement on Form SB-2 or Form S-3, as appropriate, or such other appropriate
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form, to register the number of Shares into which the Debentures may be
converted that exceed the number of Shares already registered. The Company shall
use its best efforts to have the Registration Statement declared effective
within the earliest to occur of (i) ninety (90) days following the Closing Date
(ii) if the Commission elects not to conduct a review of the Registration
Statement, the date which is three (3) business days after the date upon which
either the Company or its counsel is so notified, whether orally or in writing
that the Commission will not conduct a review of such Registration Statement; or
(iii) if the Registration Statement is reviewed by the Commission, the date
which is three (3) business days after the date upon which the Company or its
counsel is notified by the Commission, whether orally or in writing, that the
Commission has no further comments with respect to the Registration Statement or
that the Registration Statement may be declared effective (the earliest of such
dates is referred to herein as the "Effectiveness Deadline.") Notwithstanding
anything to the contrary contained herein or in any of the Securities Purchase
Agreement, the Debentures or the Warrants (collectively, the "Primary
Documents"), the Company shall take all action necessary to ensure that the
Registration Statement includes only the Registrable Securities and those
securities set forth on Schedule 1 hereto.
(ii) The Company shall keep each Registration
Statement effective pursuant to Rule 415 at all times until such date as is the
earlier of (i) the date on which all of the Registrable Securities have been
sold and (ii) the date on which the Registrable Securities (in the opinion of
counsel to the Purchaser) may be immediately sold without restriction (including
without limitation as to volume by each holder thereof) without registration
under the Securities Act (the "Registration Period").
(b) PAYMENTS BY THE COMPANY.
(i) (A) If the Registration Statement covering the
Registrable Securities is not filed with the Commission on or prior to the
Filing Deadline, (B) if the Registration Statement covering the Registrable
Securities is not effective on or prior to the Effectiveness Deadline, (C) if
the number of Shares listed for trading on the OTC Bulletin Board or reserved by
the Company for issuance shall be insufficient, for any period of five (5)
consecutive days at any time after the Effectiveness Deadline, for issuance upon
the conversion of the Debentures and the exercise of the Warrants, or (D) upon
the occurrence of a Blackout Event (as described in Section 3(f) or Section 3(g)
below), for any period of five (5) consecutive days at any time after the
Effectiveness Deadline (each of the events described in clauses (A) through (D)
of this paragraph are referred to herein as a "Registration Default"), the
Company will make payments to the Purchaser in such amounts and at such times as
shall be determined pursuant to this Section 2(b).
(ii) The amount (the "Periodic Amount") to be paid by
the Company to the Purchaser as of each thirty (30) day period during which a
Registration Default shall be in effect (each such period, a "Default Period")
shall be equal to two percent of the purchase price paid by such Purchaser for
all of the Debentures and Warrants (the "Purchase Price"); provided that, with
respect to any Default Period during which the relevant Registration Defaults
shall have been cured, the Periodic Amount shall be pro rated for the number of
days during such
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period during which the Registration Defaults were pending; and provided,
further, that the payment of such Periodic Amounts shall not relieve the Company
from its continuing obligations to register the Warrants and Shares pursuant to
Section 2(a).
(iii) Each Periodic Amount shall be payable by the
Company in cash or other immediately available funds to the Purchaser monthly,
without demand therefor by the Purchaser.
(iv) The parties acknowledge that the damages which
may be incurred by the Purchaser if the Registration Statement is not filed by
the Filing Deadline, if the Registration Statement has not been declared
effective by the Effectiveness Deadline, or if the provisions of Section 3(e) or
3(f) become applicable, may be difficult to ascertain. The parties agree that
the Periodic Amount represents a reasonable estimate on the part of the parties,
as of the date of this Agreement, of the amount of such damages.
(c) PIGGYBACK REGISTRATION. (i) If at any time or from time to
time, the Company shall determine to register any of its securities, for its own
account or the account of any of its shareholders, other than a Registration
relating solely to employee share option plans or pursuant to an acquisition
transaction on Form S-4, the Company will:
(A) provide to the Purchaser written notice
thereof as soon as practicable prior to filing the Registration Statement; and
(B) include in such Registration Statement
and in any underwriting involved therein, all of the Registrable Securities
specified in a written request by the Purchaser made within fifteen (15) days
after receipt of such written notice from the Company.
(ii) If the Registration is for a registered public
offering involving an underwriting, the Company shall so advise the Purchaser as
a part of the written notice given pursuant to this Section. In such event, the
rights of the Purchaser hereunder shall include participation in such
underwriting and the inclusion of the Registrable Securities in the underwriting
to the extent provided herein. To the extent that the Purchaser proposes to
distribute its securities through such underwriting, the Purchaser shall
(together with the Company and any other security holders of the Company
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section, if the managing underwriter of such underwriting
determines that marketing factors require a limitation of the number of shares
to be offered in connection with such underwriting, the managing underwriter may
limit the number of Registrable Securities to be included in the Registration
and underwriting (provided, however, (a) the Registrable Securities shall not be
excluded from such underwritten offering prior to any securities held by
officers and directors of the Company or their affiliates, (b)the Registrable
Securities shall be entitled to at least the same priority in an underwritten
offering as any of the Company's existing security holders, and (c) the Company
shall not enter into any agreement that would provide any security holder with
priority in connection with an underwritten offering greater than the priority
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granted to the Purchaser hereunder). The Company shall so advise any of its
other security holders who are distributing their securities through such
underwriting pursuant to their respective piggyback registration rights, and the
number of shares of Registrable Securities and other securities that may be
included in the registration and underwriting shall be allocated among the
Purchaser and all other security holders of the Company in proportion, as nearly
as practicable, to the respective amounts of Registrable Securities held by the
Purchaser and such other security holders at the time of the filing of the
registration statement. If the Purchaser disapproves of the terms of any such
underwriting, it may elect to withdraw therefrom by written notice to the
Company. Any Registrable Securities so excluded or withdrawn from such
underwriting shall be withdrawn from such Registration.
(d) INTENTIONALLY OMITTED.
(e) PRIORITY IN FILING. Subject to the terms of the Securities
Purchase Agreement, from the date hereof until 180 days following the effective
date of the Registration Statement pursuant to Section 2(a) of this Agreement,
the Company shall not permit the registration of any of its securities under the
Securities Act to become effective, other than those covered by this Agreement,
without the prior written approval of the Purchaser. The foregoing
notwithstanding, the Company may permit a registration statement to become
effective during the foregoing period provided that such registration statement
relates to a firm commitment underwritten offering of the Company's securities
that provides the Company with at least $7.5 million.
3. OBLIGATIONS OF THE COMPANY. In connection with the registration of
the Registrable Securities, the Company shall do each of the following:
(a) Prepare and file with the Commission the registration
statements required by Section 2 of this Agreement and such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectuses used in connection with the Registration
Statement, each in such form as to which the Purchaser and its counsel shall not
have objected, as may be necessary to keep the Registration current at all times
during the Registration Period, and, during the Registration Period, comply with
the provisions of the Securities Act with respect to the disposition of all of
the Registrable Securities until such time as all of such Registrable Securities
have been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof as set forth in the Registration Statement;
(b) Furnish to the Purchaser, if the Registrable Securities of
the Purchaser are included in the Registration Statement, and its legal counsel
identified to the Company, promptly after the same is prepared and publicly
distributed, filed with the Commission, or received by the Company, a copy of
the Registration Statement, each preliminary prospectus, each final prospectus,
and all amendments and supplements thereto and such other documents, as the
Purchaser may reasonably request in order to facilitate the disposition of its
Registrable Securities;
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(c) As soon as practicable, furnish to the Purchaser and its
counsel copies of any correspondence between the Company and the Commission with
respect to any registration statement or amendment or supplement thereto filed
pursuant to this Agreement;
(d) Use all best efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement under such other
securities or blue sky laws of such jurisdictions as the Purchaser may request,
(ii) prepare and file in those jurisdictions such amendments (including
post-effective amendments) and supplements to such registrations and
qualifications as may be necessary to maintain the effectiveness thereof at all
times during the Registration Period, (iii) take such other actions as may be
necessary to maintain such registrations and qualifications in effect at all
times during the Registration Period and (iv) take all other actions necessary
or advisable to qualify the Registrable Securities for sale in such
jurisdictions;
(e) List such securities on the OTC Bulletin Board and all the
other national securities exchanges on which any securities of the Company are
then listed, and file any filings required by the OTC Bulletin Board and/or such
other exchanges;
(f) As promptly as practicable after becoming aware of such
event, notify each Purchaser of the occurrence of any event of which the Company
has knowledge, as a result of which the prospectus included in the Registration
Statement, as then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and to use its best efforts to promptly prepare a
supplement or amendment to the Registration Statement or other appropriate
filing with the Commission to correct such untrue statement of omission, and to
deliver a number of copies of such supplement or amendment to the Purchaser as
the Purchaser may reasonably request;
(g) As promptly as practicable after becoming aware of such
event, notify the Purchaser who holds Registrable Securities being sold (or, in
the event of an underwritten offering, the underwriters) of the issuance by the
Commission or any stop order or other suspension of the effectiveness of the
Registration Statement at the earliest possible time, and to use its best
efforts to promptly obtain the withdrawal of such stop order or other suspension
of effectiveness;
(h) As promptly as practicable after becoming aware of such
event, notify each Purchaser who holds Registrable Securities being sold (or, in
the event of an underwritten offering, the managing underwriters) of the
issuance by the Commission or any stop order or other suspension of the
effectiveness of the Registration Statement at the earliest possible time, and
to use its best efforts to promptly obtain the withdrawal of such stop order or
other suspension of effectiveness (the occurrence of any of the events described
in paragraphs (f) and (g) of this Section 3 is referred to herein as a "Blackout
Event");
(i) During the period commencing upon (i) the Purchaser's
receipt of a notification pursuant to Section 3(f) above, or (ii) the entry of a
stop order or other suspension of effectiveness of the Registration Statement
described in Section 2(a) above, and ending at such
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time as (y) the Company shall have completed the applicable filings (and if
applicable, such filings shall have been declared effective) and shall have
delivered to the Purchaser the documents required pursuant to Section 3(e)
above, or (z), such stop order or other suspension of the effectiveness of the
Registration Statement shall have been removed, the Company shall be liable to
remit the payments required to be paid pursuant to Section 2(b) above;
(j) If the offering is underwritten, at the request of a
Purchaser, to furnish on the date that Registrable Securities are delivered to
the underwriters for sale pursuant to such registration: (i) an opinion dated
such date of counsel representing the Company for the purposes of such
registration, addressed to the underwriters and to any Purchaser selling
Registrable Securities in connection with such underwriting, stating that such
registration statement has become effective under the Securities Act and that
(A) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act and (B)
the registration statement, the related prospectus and each amendment or
supplement thereof comply as to form in all material respects with the
requirements of the Securities Act (except that such counsel need not express
any opinion as to financial statements or other financial data contained
therein) and (ii) a letter dated such date from the Company's independent public
accountants addressed to the underwriters and to such Purchasers, stating that
they are independent public accountants within the meaning of the Securities Act
and that, in the opinion of such accountants, the financial statements of the
Company included in the registration statement or the prospectus, or any
amendment or supplement thereof, comply as to form in all material respects with
the applicable accounting requirements of the Securities Act, and such letter
shall additionally cover such other financial matters (including information as
to the period ending no more than five (5) business days prior to the date of
such letter) with respect to such registration as such underwriters may
reasonably request; and
(k) Cooperate with the Purchaser to facilitate the timely
preparation and delivery of certificates for the Registrable Securities to be
offered pursuant to the Registration Statement and to enable such certificates
for the Registrable Securities to be in such denominations or amounts, as the
case may be, as the Purchaser may reasonably request, and registered in such
names as the Purchaser may request; and, within three (3) business days after a
Registration Statement which includes Registrable Securities is ordered
effective by the Commission, the Company shall deliver, and shall cause legal
counsel selected by the Company to deliver, to the transfer agent for the
Registrable Securities (with copies to the Purchaser) an appropriate instruction
and opinion of such counsel.
4. OBLIGATIONS OF THE PURCHASER. In connection with the registration of
the Registrable Securities, the Purchaser shall furnish to the Company such
information regarding itself, the Warrants and Registrable Securities held by
it, and the intended method of disposition of the Warrants and the Registrable
Securities held by it, as shall be reasonably required to effect the
registration of such Warrants and such Registrable Securities, and the Purchaser
shall execute such documents in connection with such registration as the Company
may reasonably request. At least five (5) days prior to the first anticipated
filing date of the Registration Statement, the
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Company shall notify the Purchaser of the information the Company included in
the Registration Statement.
5. EXPENSES OF REGISTRATION. All expenses, other than underwriting
discounts and commissions and other fees and expenses of investment bankers and
other than brokerage commissions, incurred in connection with registrations,
filings or qualifications pursuant to Section 3, but including, without
limitation, all registration, listing, and qualification fees, printing and
accounting fees, and the fees and disbursements of counsel for the Company, and
the fees of one counsel to the Purchaser with respect to each Registration
Statement filed pursuant hereto, shall be borne by the Company provided, that
the expenses of such Purchaser's counsel shall not exceed $5,000.
6. INDEMNIFICATION. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) The Company will indemnify and hold harmless the
Purchaser, each of its officers, directors and shareholders, and each person, if
any, who controls the Purchaser within the meaning of the Securities Act or the
Exchange Act (each, an "Indemnified Person"), against any losses, claims,
damages, liabilities or expenses (joint or several) incurred (collectively,
"Claims") to which any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such Claims (or actions or proceedings,
whether commenced or threatened, in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any post-effective amendment thereof
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances in which they were made, not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Company files any amendment thereof or supplement thereto with the
Commission) or the omission to state therein any material fact necessary in
order to make the statements made therein, in light of the circumstances under
which they were made, not misleading, or (iii) any violation or alleged
violation by the Company of the Securities Act, the Exchange Act, any state or
foreign securities law or any rule or regulation under the Securities Act, the
Exchange Act or any state or foreign securities law (the matters in foregoing
clauses (i) through (iii) being, collectively, "Violations"). The Company shall,
subject to the provisions of Section 6(b) below, reimburse the Purchaser,
promptly as such expenses are incurred and are due and payable, for any legal
and other costs, expenses and disbursements in giving testimony or furnishing
documents in response to a subpoena or otherwise, including without limitation,
the costs, expenses and disbursements, as and when incurred, of investigating,
preparing or defending any such action, suit, proceeding or investigation
(whether or not in connection with litigation in which the Purchaser is a
party), incurred by it in connection with the investigation or defense of any
such Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a) shall not (i) apply to
any Claim arising out of or based upon a modification which occurs in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of any Indemnified Person
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expressly for use in connection with the preparation of the Registration
Statement or any such amendment thereof or supplement thereto; (ii) with respect
to any preliminary prospectus, inure to the benefit of any such person from whom
the person asserting any such Claim purchased the Registrable Securities that
are the subject thereof (or to the benefit of any person controlling such
person) if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected in the final prospectus, as then amended or
supplemented, if such final prospectus was timely made available by the Company
pursuant to Section 3(b) hereof; (iii) be available to the extent that such
Claim is based upon a failure of the Purchaser to deliver or to cause to be
delivered the prospectus made available by the Company, if such prospectus was
timely made available by the Company pursuant to Section 3(b) hereof; or (iv)
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Company, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person
and shall survive the transfer of the Registrable Securities by the Purchaser
pursuant to Section 9. Each Purchaser will indemnify the Company and its
officers and directors against any Claims arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company, by or on behalf of the Purchaser, expressly
for use in connection with the preparation of the Registration Statement,
subject to such limitations and conditions as are applicable to the
Indemnification provided by the Company in this Section 6.
(b) Promptly after receipt by an Indemnified Person under this
Section 6 of notice of the commencement of any action (including any
governmental action), such Indemnified Person shall, if a Claim in respect
thereof is to be made against any indemnifying party under this Section 6,
deliver to the indemnifying party a written notice of the commencement thereof,
and the indemnifying party shall have the right to participate in, and to the
extent that the indemnifying party so desires, jointly with any other
indemnifying party similarly notified, to assume control of the defense thereof
with counsel mutually satisfactory to the indemnifying party and the Indemnified
Person, provided, however, that an Indemnified Person shall have the right to
retain its own counsel with the reasonable fees and expenses to be paid by the
indemnifying party, if, in the reasonable opinion of counsel retained by the
indemnifying party, the representation by such counsel of the Indemnified Person
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person and any other party
represented by such counsel in such proceeding. In such event, the Company shall
pay for only one separate legal counsel for the Purchaser, and such legal
counsel shall be selected by the Purchaser. The failure to deliver written
notice to an indemnifying party within a reasonable time after the commencement
of any such action shall not relieve such indemnifying party of any liability to
the Indemnified Person under this Section 6, except to the extent that the
indemnifying party is materially prejudiced in its ability to such action. The
indemnification required by this Section 6 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as such
expense, loss, damage or liability is incurred and is due and payable.
(c) No indemnifying party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or
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enter into any settlement which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Person of an
unconditional and irrevocable release from all liability in respect of such
claim or litigation.
(d) Notwithstanding the foregoing, to the extent that any
provisions relating to indemnification or contribution contained in the
underwriting agreements entered into among the Company, the underwriters and the
Purchaser in connection with the underwritten public offering are in conflict
with the foregoing provisions, the provisions in such underwriting agreements
shall be controlling as to the Registrable Securities included in the public
offering; provided, however, that if, as a result of this Section 6(d), the
Purchaser, its officers, directors, partners or any person controlling the
Purchaser is or are held liable with respect to any Claim for which they would
be entitled to indemnification hereunder but for this Section 6(d) in an amount
which exceeds the aggregate proceeds received by the Purchaser from the sale of
Registrable Securities included in a registration pursuant to such underwriting
agreement (the "Excess Liability"), the Company shall reimburse the Purchaser
for such Excess Liability.
7. CONTRIBUTION. To the extent any indemnification by an indemnifying
party is prohibited or limited under applicable law, the indemnifying party
agrees to contribute to the amount paid or payable by such indemnified party as
a result of such loss, claim, damage, liability or expense in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and the Indemnified Person on the other hand in connection with the
statements or omissions which resulted in such Claim, as well as any other
relevant equitable considerations. The relative fault of the indemnifying party
and the Indemnified Person shall be determined by reference to, among other
things, whether the untrue statement of a material fact or the omission to state
a material fact on which such Claim is based relates to information supplied by
the indemnifying party or by the Indemnified Person, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. Notwithstanding the forgoing, (a) no contribution
shall be made under circumstances where the payor would not have been liable for
indemnification under the fault standards set forth in Section 6, (b) no seller
of Registrable Securities guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities who was not guilty of
such fraudulent misrepresentation and (c) contribution by any seller of
Registrable Securities shall be limited in amount to the net proceeds received
by such seller from the sale of such Registrable Securities. The Company and the
Purchaser agree that it would not be just and equitable if contribution pursuant
to this Section 7 were determined by pro-rata allocation (even if the Purchaser
and any other party were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in this Section.
8. REPORTS UNDER EXCHANGE ACT.
With a view to making available to the Purchaser the benefits
of Rule 144 promulgated under the Securities Act or any other similar rule or
regulation of the Commission that may at any time permit the Purchaser to sell
securities of the Company to the public without registration ("Rule 144"), the
Company agrees to:
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(i) make and keep public information available, as
those terms are understood and defined in Rule 144;
(ii) file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act; and
(iii) furnish to the Purchaser so long as the
Purchaser owns Registrable Securities, Debentures or Warrants promptly upon
request, (i) a written statement by the Company that it has complied with the
reporting requirements of the Securities Act and the Exchange Act, (ii) a copy
of the most recent annual or periodic report of the Company and such other
reports and documents so filed by the Company and (iii) such other information
as may be reasonably requested to permit the Purchaser to sell such securities
pursuant to Rule 144 without registration.
9. ASSIGNMENT OF THE REGISTRATION RIGHTS. The rights to have the
Company register Registrable Securities pursuant to this Agreement shall be
automatically assigned by Purchaser to any transferee of all or any portion of
the principal amount of Debentures or the Warrants, or the underlying Common
Stock held by Purchaser (collectively, the "Securities") if: (a) Purchaser
agrees in writing with the transferee or assignee to assign such rights, and a
copy of such agreement is furnished to the Company within a reasonable time
after such assignment; (b) the Company is, within a reasonable time after such
transfer or assignment, furnished with written notice of the name and address of
such transferee or assignee; (c) at or before the time the Company receives the
written notice contemplated by clause (b) of this sentence, the transferee or
assignee agrees in writing with the Company to be bound by all of the provisions
contained herein; and (d) the transfer of the relevant Securities complies with
the restrictions set forth in Section 4 of the Securities Purchase Agreement.
10. AMENDMENT OF REGISTRATION RIGHTS. Any provision of this Agreement
may be amended and the observance thereof may be waived (either generally or in
a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Purchaser. Any amendment or waiver
effected in accordance with this Section 10 shall be binding upon Purchaser and
the Company.
11. MISCELLANEOUS.
(a) A person or entity is deemed to be a holder of Warrants or
Registrable Securities whenever such person or entity owns of record such
Warrants or Registrable Securities. If the Company receives conflicting
instructions, notices or elections from two or more persons or entities with
respect to the same Warrants or Registrable Securities, the Company shall act
upon the basis of the instructions, notice or election received from the
registered owner of such Warrants or Registrable Securities.
(b) Any notice required or permitted hereunder shall be given
in writing (unless otherwise specified herein) and shall be effective upon
personal delivery, via facsimile (upon receipt of confirmation of error-free
transmission) or two business days following deposit of such notice with an
internationally recognized courier service, with postage prepaid and
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addressed to each of the other parties thereunto entitled at the following
addresses, or at such other addresses as a party may designate by ten (10) days
advance written notice to each of the other parties hereto.
COMPANY: iBIZ TECHNOLOGY CORP.
0000 Xxxx Xxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
ATTN: Xxxxxxx Xxxxxxxxx
Tel.: 000-000-0000
Fax: 000-000-0000
WITH COPIES TO:
Xxxxxxx & Xxxxxxx
Xxx Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
ATTN: Xxxxxx Xxxxxxxxxx, Esq.
Tel.: 000-000-0000
Fax: 000-000-0000
PURCHASER: At the address set forth on the signature page of this
Agreement, as such address may be updated from time to time by
the Purchaser.
Lites Trading Co.
c/x Xxxxxx Xxxxxxxxxx & Xxxxxx, P.C.
00 Xxxxxxxx, 00xx Xxxxx
ATTN: Xxxxxxx X. Xxxxxxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
WITH COPIES TO:
Xxxxxx Xxxxxxxxxx & Xxxxxx, P.C.
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
ATTN: Xxxxxxx X. Xxxxxxxxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
(c) Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
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(d) This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York, except for provisions with
respect to internal corporate matters of the Company which shall be governed by
the corporate laws of the State of Florida. Each of the parties consents to the
jurisdiction of the federal courts whose districts encompass any part of the
City of New York or the state courts of the State of New York sitting in the
City of New York in connection with any dispute arising under this Agreement and
hereby waives, to the maximum extent permitted by law, any objection, including
any objection based on forum non conveniens, to the bringing of any such
proceeding in such jurisdictions. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original. The headings of this
Agreement are for convenience of reference and shall not form part of, or affect
the interpretation of, this Agreement. If any provision of this Agreement shall
be invalid or unenforceable in any jurisdiction, such validity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement or the validity or enforceability of this Agreement
in any other jurisdiction. Subject to the provisions of Section 10 hereof, this
Agreement may be amended only by an instrument in writing signed by the party to
be charged with enforcement. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
(e) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof. This Agreement
supersedes all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof.
(f) Subject to the requirements of Section 9 hereof, this
Agreement shall inure for the benefit of and be binding upon the successors and
assigns of each of the parties hereto.
(g) All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may require.
(h) The Company acknowledges that any failure by the Company
to perform its obligations under Section 2(a), or any delay in such performance
could result in direct damages to the Purchaser, and the Company agrees that, in
addition to any other liability the Company may have by reason of any such
failure or delay, the Company shall be liable for all direct damages caused by
any such failure or delay. Nothing herein shall limit the Purchaser's right to
pursue any claim seeking such direct damages.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the undersigned.
Dated: March 27, 2000
"COMPANY"
iBIZ TECHNOLOGY CORP.
By:
--------------------------------
Name:
Title:
IN WITNESS WHEREOF, this Agreement has been duly executed by the
undersigned.
"PURCHASER"
LITES TRADING CO.
By:
---------------------------------
Name:
Title: Authorized Person
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