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Exhibit 2.2
REGISTRATION RIGHTS AGREEMENT
by and among
SWISSRAY INTERNATIONAL, INC.,
SERVICE SUPPORT GROUP LLC,
XXXX XXXXXX,
XXXXXXX XXXXX
and
XXXXXXX XXXXXXX
Dated as of October 17, 1997
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REGISTRATION RIGHTS AGREEMENT, dated as of October 17, 1997, by and
among SWISSRAY INTERNATIONAL, INC., a New York corporation (the "Company"),
Service Support Group, LLC, a limited liability company organized under the laws
of the State of Washington ("SSG"), Xxxx Xxxxxx ("Durday"), Xxxxxxx Xxxxx
("Xxxxx") and Xxxxxxx Xxxxxxx ("Xxxxxxx" and together with SSG, Durday and
Xxxxx, the "Sellers").
WHEREAS, pursuant to an Asset Purchase Agreement, dated as of October
17, 1997 (the "Purchase Agreement"), by and among the Company and the Sellers,
the Company has agreed to purchase all of the assets of SSG.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth, the parties hereto hereby agree as follows:
1. Definitions. Unless otherwise defined in context or the context
otherwise requires, capitalized terms used herein are defined below. Such terms
shall be applicable to both the singular and plural forms of any of the terms
herein defined.
"Affiliate" means any Person which directly or indirectly controls, is
controlled by, or is under common control with, the indicated Person.
"Commission" means the United States Securities and Exchange Commission
or any similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means the common stock, par value $.01, of the Company,
or any other capital stock of the Company into which such stock may be
reclassified or reconstituted.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar statute of the United States of America, 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 Exchange Act shall include a
reference to the comparable section, if any, of any such similar statute of the
United States of America.
"Initiating Holder" has the meaning set forth in Section 3.1.
"Person" means a corporation, an association, a partnership, an
organization, a business, an individual, a governmental or political subdivision
thereof or a governmental agency.
"Registrable Securities" means the 333,333 shares of Common Stock
issued to SSG pursuant to the Purchase Agreement. As to any particular
Registrable Securities, once issued, such securities shall cease to be
Registrable Securities when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (b) they shall have been sold pursuant to Rule 144 (or successor
provision) promulgated under the Securities Act, (c)
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they shall have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer under the Securities Act shall
have been delivered by the Company and their subsequent public distribution in
the United States of America shall not require registration of them under the
Securities Act or (d) they shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Section 3.1 hereof, including, without,
limitation, all registration, filing and National Association of Securities
Dealers, Inc. fees, all listing fees, all fees and expenses of complying with
securities or blue sky laws (including, without limitation, reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities or proposed disposition thereof),
all word processing, duplicating and printing expenses, messenger and delivery
expenses, the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of "cold comfort" letters
required by or incident to such performance and compliance, any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities; provided, however, that Registration Expenses shall exclude, and the
sellers of the Registrable Securities being registered shall pay the
underwriting fees and underwriting discounts and commissions and transfer taxes
in respect of the Registrable Securities being registered.
"Requesting Holders" shall mean any Initiating Holder and any other
Seller who has requested to be included in any registration of Registrable
Securities to be effected pursuant to this Agreement.
"Rule 144" means Rule 144 promulgated under the Securities Act or any
similar federal rule under the Securities Act as shall be in effect at the time.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar statute of the United States of America, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the time.
References to a particular section of the Securities Act shall include a
reference to the comparable section, if any, of an, such similar statute of the
United States of America.
2. Shelf Registration. As soon as the Company becomes eligible to
register securities on Form S-3, the Company shall file with the Commission, at
the Company's expense, a "shelf" registration statement pursuant to Rule 415
under the Securities Act covering all Registrable Securities (the "Shelf
Registration Statement"). The Company shall keep the Shelf Registration
Statement continuously effective until the earliest to occur of (i) the sale or
other disposition of all Registrable Securities by the Sellers, (ii) the
exercise of the put option pursuant to Section 5.1 of the Purchase Agreement, or
(iii) April 16, 1999 (each, a "Termination Event"). Nothing herein shall
obligate the Company to incur or pay the fees and disbursements of underwriters
in connection with a distribution under the Shelf Registration Statement.
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3. Registration Rights.
3.1 Demand Registration. Prior to the date the Company shall
have filed the Shelf Registration Statement and, in the event the Shelf
Registration Statement shall for any reason not have become or cease to be
effective, after such date but prior to the occurrence of a Termination Event,
Sellers representing at least 33% of the Registrable Securities then outstanding
("Initiating Holder") shall have the right (jointly or individually) to require
the Company to effect the registration under the Securities Act of all or part
of the Registrable Securities held by such Initiating Holder by delivering a
request therefor to the Company specifying the number of shares of Registrable
Securities and the intended method of distribution. Upon receipt of such notice,
the Company shall promptly give written notice of such requested registration to
all other Sellers and thereupon use its best efforts to effect the registration
under the Securities Act of the Registrable Securities which the Company has
been requested to register under the Securities Act by the Initiating Holder and
any other Sellers by written request given to the Company within 10 days after
the giving of notice by the Company; provided that the Company shall not be
required to effect more than three registrations of Registrable Securities
pursuant to this Section 3.1.
3.2 Incidental Registration.
(a) Right to Include Registrable Securities. If, at
any time during the Registration Period the Company proposes to register any of
its securities under the Securities Act by registration on Form X-0, X-0 or S-3
or any successor or similar form(s) (except registrations on such Forms or
similar form(s) solely for registration of securities in connection with an
employee benefit plan or dividend reinvestment plan or merger or consolidation
or other acquisition by the Company of capital, stock or assets), whether or not
for sale for its own account, it will, subject to Section 3.8 hereof, each such
time give prompt written notice to all holders of Registrable Securities of its
intention to do so and of such holders' rights under this Section 3.2. Upon the
written request of any such holder made as promptly as practicable and in any
event within 10 days after the receipt of any such notice from the Company,
which request shall specify the number of shares of Registrable Securities
intended to be disposed of by such Requesting Holder, the Company shall, subject
to Sections 3.6 and 3.8 hereof, use reasonable efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by the Requesting Holders. If at any
time after giving written notice of the Company's intention to register any
securities, and prior to the effective date of the registration statement filed
in connection with such registration, the Company shall determine for any reason
not to register or to delay registration of such securities, the Company may, at
its election, give written notice of such determination not to register and
shall be relieved of its obligation to register any Registrable Securities in
connection with such registration.
(b) Priority in Incidental Registrations.
Notwithstanding anything in paragraph (a) above to the contrary, if the managing
underwriter of any underwritten offering covered by paragraph (a), shall inform
the Company in writing of its belief that the number of Registrable Securities
requested to be included in such registration would materially and adversely
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affect such offering, then the Company shall include in such registration, the
number of securities which the Company is so advised can be sold in (or during
the time of) such offering in the following order: (i) first, all securities
proposed by the Company to be sold for its own account, (ii) second, Registrable
Securities requested to be included in such registration pro rata among the
Requesting Holders on the basis of the percentage of the aggregate Registrable
Securities requested to be so included and (iii) third, all other securities of
the Company requested to be included in such registration by any person other
than a Requesting Holder.
3.3 Registration Procedures. If and whenever the Company is
required to effect the registration of any Registrable Securities under the
Securities Act as provided in Section 3.1, the Company shall as expeditiously as
possible:
(i) prepare and file with the Commission the
requisite registration statement to effect such registration and thereafter use
best efforts to cause such registration statement to become effective;
(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 Registrable Securities covered by such
registration statement for such period as shall be reasonably required for the
disposition of all of such Registrable Securities, provided, that such period
need not exceed 120 days;
(iii) furnish to each Requesting Holder, 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 Requesting
Holder may reasonably request;
(iv) use its best efforts to register or qualify all
Registrable Securities and other securities covered by such registration
statement under such other securities or Blue Sky laws of such States of the
United States of America where an exemption is not available and as sellers of
Registrable Securities covered by such registration statement shall reasonably
request, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not, but for the requirement of this paragraph (iv), be
obligated to be so qualified or to consent to general service of process in any
such jurisdiction;
(v) furnish to each Requesting Holder a signed
counterpart of an opinion of counsel for the Company; and
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(vi) notify each Requesting Holder at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon 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 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 the light of the circumstances under which they were
made, and at the request of any such Requesting Holder promptly prepare and
furnish to it 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 any
purchaser 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.
The Company may require each Requesting Holder to furnish the Company
such information regarding such Requesting Holder and the distribution of such
securities as the Company may from time to time reasonably request in writing.
The Company may exclude from such registration any Requesting Holder who fails
to timely provide such information.
Each holder of Registrable Securities agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 3.3(vi), 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 Section 3.3(vi)
and, if so directed by the Company, will deliver to the Company at the Company's
expense all copies, other than permanent file copies, then in such holder's
possession, of the prospectus relating to such Registrable Securities current at
the time of receipt of such notice.
3.4 Holdback Agreements. If any registration of Registrable
Securities hereunder shall be in connection with an underwritten public
offering, each holder of Registrable Securities agrees not to effect any public
or private sale or distribution and not to effect any such sale or distribution
of any other equity security of the Company or of any security convertible into
or exchangeable or exercisable for any equity security of' the Company (in each
case, other than as part of such underwritten public offering) during such
period of time as the managing underwriters retained by the Company, in their
business judgment, may request, provided that each holder of Registrable
Securities shall not be required to agree to any such "holdback" unless a
similar agreement is entered into with holders of all of the Company's equity
securities.
3.5 Preparation; Reasonable Investigation. In connection with
the preparation and filing of each registration statement under the Securities
Act pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement and their respective
counsel and accountants the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with the
Commission and each amendment thereof or supplement thereto.
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3.6 Limitations, Conditions and Qualifications to Obligations
under Registration Covenants. The obligations of the Company to use its best
efforts to cause the Registrable Securities to be registered under the
Securities Act is subject to the following limitations, conditions and
qualifications: In the event the Company determines to register securities in an
offering, whether pursuant to an underwritten public equity offering or an
acquisition, the Company, upon the advice of its underwriters, shall notify the
holders of Registrable Securities and may request that such holders refrain from
selling Registrable Securities under Rule 144 for a period of (A) up to 90 days
after the closing of the underwriter's public offering or acquisition or (B)
immediately upon the Company's decision to no longer pursue any such transaction
(the "Black Out Period").
3.7 Indemnification.
(a) Indemnification by the Company. In the event of
any registration of any securities of the Company under the Securities Act, the
Company will, and hereby does, indemnify and hold harmless, in the case of any
registration statement filed pursuant to Section 3.1 or 3.2 hereof, each
Requesting Holder, its directors, officers, partners, agents and affiliates and
each other Person who participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who controls such Requesting
Holder or any such underwriter within the meaning of the Securities Act, insofar
as 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 in light of the
circumstances in which they were made not misleading, and the Company will
reimburse such Requesting Holder and each such director, officer, partner, agent
or affiliate, underwriter and controlling Person 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
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 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 the Company through an instrument executed by or on behalf of such
seller or underwriter, as the case may be, for use in the preparation thereof;
and provided, further, that the Company shall not be liable to any Person who
participates as an underwriter in the offering or sale of Registrable Securities
or any other Person, if any, who controls such underwriter within the meaning of
the Securities 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, as
the same may be then supplemented or amended, to the Person asserting an untrue
statement or
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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 so long as
such final prospectus, and any amendments or supplements thereto, have been
furnished to such underwriter. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such seller or
any such director, officer, partner, agent or affiliate or controlling Person
and shall survive the transfer of such securities by such Requesting Holder.
(b) Indemnification by the Sellers. As a condition to
including any Registrable Securities in any registration statement, the Company
shall have received an undertaking satisfactory to it from the prospective
seller of such Registrable Securities to indemnify and hold harmless (in the
same manner and to the same extent as set forth in subdivision (a) of this
Section 3.7) the Company and its directors, officers, partners, agents and
affiliates, and each other person who participates as an underwriter in the
offering or sale of such Securities and each other person, if any, who controls
the Company 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 thereto, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by such seller 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 director, officer, partner, agent or affiliate
or controlling Person and shall survive the transfer of such securities by such
seller.
3.8 Limitations on Registrations of Registrable Securities.
The Company shall not be required to effect a particular registration of
Registrable Securities pursuant to Section 3.1 hereof if it shall deliver to the
holder or holders requesting such registration a written opinion of counsel to
the effect that the Registrable Securities requested by such holder to be so
registered may be sold in the U.S. public securities market without restriction
or registration under the Securities Act and any applicable state securities
laws. This limitation shall not affect any other Registrable Securities held by
such holder.
4. Rule 144. With a view to making available the benefits of certain
rules and regulations of the Commission which may at any time permit the sale of
the Registrable Securities to the public without registration, during such time
as the Company has a class of securities registered under the Exchange Act, the
Company agrees to use reasonable efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Exchange Act.
5. Amendments and Waivers. This Agreement may be amended with the
consent of the Company and the Company may take any action herein prohibited, or
omit to perform any act
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herein required to be performed by it, only if the Company shall have obtained
the written consent to such amendment, action or omission to act of the
beneficial owner or owners of at least 50% of the Registrable Securities. Each
beneficial owner of any Registrable Securities at the time or thereafter
outstanding shall be bound by any consent authorized by this Section 5, whether
or not such Registrable Securities shall have been marked to indicate such
consent.
6. Notices. All notices, consents, requests, instructions, approvals
and other communications provided for herein shall be validly given, if in
writing and delivered personally, by confirmed telecopy or sent by registered or
certified mail or nationally recognized air courier service or overnight courier
service, postage prepaid:
(a) if to any Seller, addressed to each at such address as
each shall have furnished to the Company in writing;
(b) if to any other holder of Registrable Securities, at the
address that such holder of Registrable Securities shall have furnished to the
Company in writing or, until any such other holder of Registrable Securities so
furnishes to the Company an address, then to and at the address of the last
holder of Registrable Securities who has furnished an address to the Company;
and
(c) if to the Company, addressed to it at: Swissray
International Inc., Xxxxxxxxxxxxxxxx 0, 0000 Xxxxxxxxx, Xxxxxxxxxxx, Attn: Chief
Financial Officer, Telecopy: 011-4141-919-9067 or at such other address as the
Company shall have furnished to the Sellers in writing;
and each such notice, request, consent, instruction, approval and other
communication shall for all purposes of this Agreement be treated as being
effective or having been given when delivered, if delivered personally, or, if
sent by mail, at the time of its actual receipt, or if sent by telecopier, when
confirmed, or if sent by air courier, two (2) days after the same has been
deposited with such air courier or if sent by overnight courier, one (1) day
after the same has been deposited with such overnight courier.
7. Assignment; Calculation of Percentage Interests in Registrable
Securities.
(a) This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and, with respect to the
Company, its legal representatives, successors and assigns.
(b) For purposes of this Agreement, all references to a
percentage of the Registrable Securities shall be calculated based upon the
number of Registrable Securities outstanding at the time such calculation is
made.
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8. Headings. The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
10. Arbitration. The parties hereto agree to submit to arbitration any
and all matters in dispute or in controversy among them concerning the terms and
provisions of this Agreement (including, but not limited to, claims for
indemnification). All such disputes and controversies shall be determined and
adjudged by the decision of a sole arbitrator selected by the American
Arbitration Association (or any other mutually agreed upon body) upon
application made to it for such purpose by either party hereto. The arbitration
procedure shall take place in Seattle, Washington or such other place as the
arbitrator determines more appropriate, and shall reach and render a decision in
writing with respect to the amount, if any, of payment respecting the disputed
matter. Any award rendered shall be final and conclusive upon the parties and a
judgment thereon may be entered in the highest court of the forum, state or
federal, having jurisdiction. The expenses of the arbitration shall be borne
equally by the parties to the arbitration, provided that each party shall pay
for and bear the costs of their own experts, evidence and counsel's fees.
11. Recapitalization, etc. In the event that any capital stock or other
securities are issued in respect of, in exchange for or in substitution of any
Registrable Securities by reason of any reorganization, recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the shares of Registrable Securities or any other
change in the Company's capital structure, appropriate adjustments shall be made
in this Agreement so as to fairly and equitably preserve, as far as practicable,
the original rights and obligations of the parties hereto under this Agreement.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together shall constitute one and the same instrument.
13. Successors and Assigns. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors and assigns, whether so
expressed or not.
14. Entire Agreement. This Agreement supersedes all prior discussions
and agreements between the parties hereto with respect to the subject matter
hereof and contains the sole and entire agreement between the parties hereto
with respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above written.
SWISSRAY INTERNATIONAL INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Chief Executive Officer
SERVICE SUPPORT GROUP, LLC
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: President and CFO
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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