REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of the 25th
day of November, 2003, executed and delivered by DOCUMENT SECURITY SYSTEMS,
INC., a New York corporation (the "Company") which has its principal place of
business at 00 X.Xxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx 00000, and Fordham Financial
Management, Inc., as agent for and on behalf of, the Holders (as defined below).
RECITALS
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the Company, pursuant to terms and conditions set forth in the
Confidential Private Offering Memorandum of the Company, dated October 29, 2003,
including the exhibits thereto and any and all supplements thereof and
amendments thereto, and all documents incorporated by reference therein
(collectively, the "Memorandum") is offering for sale (the "Offering") up to 100
units (the "Units"), each Unit consisting of (i) 12,500 shares ("Shares") of its
Common Stock, par value $.02 per share ("Common Stock") and (ii) Series A Common
Stock Warrants (the "Warrants") to purchase up to an aggregate of 3,125 shares
(the "Warrant Shares") of Common Stock;
WHEREAS, Fordham Financial Management, Inc. ("Fordham") is acting as
placement agent in connection with the Offering, and in connection therewith the
investors in the Offering whose names appear on Exhibit A annexed hereto as may
be amended during the Offering ("Holders") have appointed Fordham as its agent
to execute this Agreement on their behalf; and
WHEREAS, the terms and conditions of the Offering provide for the
execution and delivery of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Company, the Company hereby
agrees as follows:
1. Automatic Registration
(a) The Company shall use its best efforts to file a registration
statement ("Registration Statement") with the Securities and Exchange Commission
under the Securities Act of 1933 (the "Act"), on appropriate form, and such
other documents, including a prospectus, as may be necessary (in the opinion of
counsel for the Company), in order to comply with the provisions of the Act,
within 15 days of the final closing of the Offering, so as to allow for the
resale under the Act by any Holder or combination of Holders of all Registerable
Shares (as defined in Section 2) held by all of the Holders, at the sole expense
of the Company, so as to permit the public resale by the Holder of the
Registerable Shares pursuant thereto.
(b) Upon filing of the Registration Statement, the Company covenants
and agrees to give written notice of such filing to all Holders of Registerable
Shares within twenty
1
(20) business days from the date thereof.
2. Registerable Shares. For purposes of this Agreement, the term
"Registerable Shares" shall include" (i) the Shares purchased as a component of
the Units in the Offering; (ii) any securities issued or issuable with respect
to the Warrants; or (iii) Warrant Shares; or (iv) any other shares of Common
Stock issued to the Holders by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise. Anything herein contained to the contrary
notwithstanding, the provisions of this Agreement shall not apply to, and the
term "Registerable Shares" as used in this Agreement shall not include, Shares
of Common Stock or Warrant Shares after they have been sold by a Holder pursuant
to an effective Registration Statement under the Act or sold pursuant to Rule
144.
3. Additional Covenants of the Company With Respect to Registration.
The Company covenants and agrees as follows:
(a) In connection with any registration under Section 1 above,
the Company shall file the Registration Statement as expeditiously as possible,
but in no event later than 15 business days following the final closing of the
Offering, and use its best efforts to have such Registration Statement declared
effective at the earliest possible time.
(b) In connection with any registration of Registerable Shares
pursuant to Section 1 above, the Company shall furnish each Holder of
Registerable Shares included in a Registration Statement with such reasonable
number of copies of such Registration Statement, related preliminary prospectus
and prospectus meeting the requirements of the Act, and other documents
necessary or incidental to the registration and public offering of such
Registerable Shares, as shall be reasonably requested by the Holder to permit
the Holder to make a public distribution of such Registerable Shares.
(c) Once effective, the Company covenants and agrees to use
its best efforts to maintain the effectiveness of any Registration Statement
until the earlier of (i) a date which is two years from the final closing date
of the Offering, or (ii) the date that the Holders of the Registerable Shares
receive an opinion of counsel to the Company that all of the Registerable Shares
may be freely traded (without limitation or restriction as to quantity or timing
and without registration under the Act) pursuant to Rule 144 or otherwise;
provided, however, the Company may suspend the use of any Registration Statement
for a period not to exceed 45 days in any 12- month period for valid business
reasons (not including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, public filings with the SEC,
pending corporate developments and similar events.
(d) If any stop order shall be issued by the SEC in connection
with any Registration Statement filed pursuant to Sections 1 above, the Company
will use its best efforts to obtain the removal of such order.
2
(e) The Company shall pay all costs, fees, and expenses in
connection with all Registration Statements filed pursuant to Section 1 above,
including, without limitation, the Company's legal and accounting fees, printing
expenses, and blue sky fees and expenses; provided, however, that the Holders
shall be solely responsible for the fees of any counsel retained by the Holders
in connection with such registration and any transfer taxes or underwriting
discounts, commissions or fees applicable to the Registerable Shares sold by the
Holders pursuant thereto.
(f) The Company will use its best efforts to qualify any
Registerable Shares included in a Registration Statement for sale in such states
as the Holders of such securities shall reasonably request, provided that no
such qualification will be required in any jurisdiction where, solely as a
result thereof, the Company would be subject to general service of process or to
taxation or qualification as a foreign corporation doing business in such
jurisdiction.
4. Indemnification.
(a) In the event of any registration of any the Registerable
Shares under the Act, the Company shall indemnify and hold harmless each Holder,
the affiliates of each such Holder, the directors, partners, officers, employees
and agents of each such Holder and any person who controls any such Holder
within the meaning of the Act or the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or State statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) caused by, arising out of or
based on any untrue statement or alleged untrue statement of a material fact
contained in any registration statement under which such securities were
registered under the Act, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto, or
arise out of or are 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 not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be liable
in any case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any such
Holder specifically for inclusion therein, (ii) the Company will not be liable
to any indemnified party under this indemnity agreement with respect to any
Registration Statement or Prospectus to the extent that any such loss, claim,
damage or liability of such indemnified party results from the use of the
Prospectus during a period when the use of the Prospectus has been suspended in
accordance with Section 3(c) hereof, provided that the Holders received prior
notice of such suspension, which notice shall be deemed to have been received by
such Holders within 48 hours after the giving thereof; and (iii) the Company
shall not be liable to any indemnified party with respect to any preliminary
Prospectus to the extent that any such loss, claim, damage or liability of such
3
indemnified party results from the fact that such indemnified party sold
Registerable Securities to a person as to whom there was not sent or given, at
or prior to the written confirmation of such sale, a copy of the Prospectus or
of the Prospectus as then amended or supplemented in any case where such
delivery is required by the Act, if the loss, claim, damage or liability of such
indemnified party results from an untrue statement or omission of a material
fact contained in the preliminary Prospectus which was corrected in the
Prospectus or in the Prospectus as then amended or supplemented. This indemnity
agreement will be in addition to any liability which the Company may otherwise
have. The Company also agrees to indemnify and provide contribution to each
person who may be deemed to be an underwriter (for purposes of the Act) with
respect to the Registerable Shares ("Underwriter" or "Underwriters"), their
officers and directors, and each person who controls each such Underwriter, on
substantially the same basis as that of the indemnification of and contribution
to the Holders provided in this Section 4.
(b) As a condition to including any of the Registerable Shares
in any registration statement filed pursuant to this Agreement, the Holder of
the Registerable Shares, as a prospective seller of the Registerable Shares
hereby agrees to indemnify and hold harmless (in the same manner and to the same
extent as set forth in subdivision (a) of this Section 4) the Company, each
director of the Company, each officer, employee or agent of the Company and each
Underwriter of the Registerable Shares and each other person or entity, if any,
which controls the Company or such Underwriter within the meaning of the Act,
with respect to any statement or alleged statement in, or omission or alleged
omission from, such registration statement, any preliminary Prospectus,
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 by the Holder for use in the preparation of
such registration statement, preliminary Prospectus, Prospectus, summary
Prospectus, amendment or supplement. Any such indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of the
Company or any such director, officer or controlling person and shall survive
the transfer of such securities by Holder. Anything in this Agreement contained
to the contrary notwithstanding the liability of each Holder for indemnification
or contribution hereunder shall be limited to the amount of proceeds received by
such Holder in the Offering giving rise to such liability.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action or proceeding involving a claim referred to in
the preceding subdivisions of this Section 4, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action, provided that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under the preceding
subdivisions of this Section 4, except to the extent that the indemnifying party
is materially prejudiced by such failure to give notice. In case any such action
is brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, the indemnifying party
shall be entitled to participate in and to assume the defense thereof, jointly
with any other indemnifying party
4
similarly notified, to the extent that the indemnifying party may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by the
latter in connection with the defense thereof other than reasonable costs of
investigation. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel (and local counsel) if (i) the use of counsel chosen by
the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, (ii) the actual or potential defendants in,
or targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, (iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnified party shall not
settle or compromise any action for which it seeks indemnification or
contribution hereunder without the prior written consent of the indemnifying
party, which consent shall not be unreasonably withheld. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in Section 4(a) or 4(b) is
unavailable to or insufficient to hold harmless an indemnified party for any
reason, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Registration Statement which
resulted in such losses.
(e) The provisions of this Section 4 shall remain in full force and effect
regardless of any investigation made by or on behalf of any Holder or the
Company or any other persons who are entitled to indemnification pursuant to the
provisions of this Section 4, and shall survive the sale by a Holder of
Registerable Shares pursuant to the Registration Statement.
5. Amendments. This Agreement may not be amended, modified or
supplemented, and waivers of or consents to departures from the provisions of
this Agreement may not be given,
5
unless it would not have an adverse effect upon the rights of any of the Holders
and the Company has obtained the written consent of Holders then holding a
majority of the Registerable Shares.
6. Notices. Except as otherwise provided in this Agreement, all
notices, requests and other communications (which shall include publication) to
any person provided for hereunder shall be in writing and shall be given by hand
delivery, registered or certified mail or by any courier providing overnight
delivery (i) if to the Company or the initial Holder, at the address set forth
in the Subscription Agreement and (ii) if to a subsequent Holder, to the address
set forth on the books and records of the Company. All such notices, requests or
communications shall not be effective until received.
7. Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto. In addition, and whether or
not any express assignment shall have been made, the provisions of this
Agreement which are for the benefit of Holder shall also be for the benefit of
and enforceable by any subsequent holder of the Registerable Shares. Holder
agrees, by accepting any portion of the Registerable Shares after the date
hereof, to the provisions of this Agreement.
8. Governing Law.
(a) THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REFERENCE TO THE PRINCIPLES OF CONFLICTS OF LAWS.
(b) Each of the Company and Holder hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of any State
Court in New York County, New York and the United States District Court for the
Southern District of New York (the "NY Courts") for any litigation arising out
of or relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any litigation relating thereto except in such courts),
waives any objection to the laying of venue of any such litigation in the NY
Courts and agrees not to plead or claim that such litigation brought in any NY
Courts has been brought in an inconvenient forum.
9. Counterparts. This Agreement may be executed by facsimile and may
be signed simultaneously in any number of counterparts, each of which shall be
deemed an original, but all such counterparts shall together constitute one and
the same instrument.
10. Entire Agreement. This Agreement embodies the entire agreement of
between the Company relating to the subject matter hereof and supersedes all
prior agreements and understandings relating to such subject matter.
11. Severability. If any provision of this Agreement, or the
application of such
6
provisions to any person or circumstance, shall be held invalid, the remainder
of this Agreement, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
12. Third Party Beneficiaries. The Holders from time to time shall
each be a third party beneficiary of the agreements of the Company contained
herein.
13. Headings. The headings which are contained in this Agreement are
for the sole purpose of convenience of reference, and shall not limit or
otherwise affect the interpretation of any of the provisions hereof.
14. Further Assurances. The Company will from time to time after the
date hereof take any and all actions, and execute, acknowledge and deliver any
and all documents and instruments, at its cost and expense, as any Holder may
from time to time reasonably request in order to more fully perfect or protect
the rights intended to be granted to it hereunder.
15. Interpretation. As used in this Agreement, unless the context
otherwise requires: words describing the singular number shall include the
plural and vice versa; words denoting any gender shall include all genders;
words denoting natural persons shall include corporations, partnerships and
other entities, and vice versa; and the words "hereof", "herein" and
"hereunder", and words of similar import, shall refer to this Agreement as a
whole, and not to any particular provision of this Agreement.
[signature page appears next]
7
16. Waiver. The failure of the Company or any Holder to at any time
enforce any of the provisions of this Agreement shall not be deemed or construed
to be a waiver of any such provision, nor to in any way affect the validity of
this Agreement or any provision hereof or the right of the Company or any Holder
to thereafter enforce each and every provision of this Agreement.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Agreement as of the date first above written.
DOCUMENTS SECURITY SYSTEMS, INC.
By:________________________
Name: Xxxxxxx Xxxxx
Title: President
ACCEPTED AND AGREED
AS AGENT ON BEHALF OF THE HOLDERS
Fordham Financial Management, Inc.
By:_______________________
Name: Xxxxxxx Xxxxxx
Title: President
8
EXHIBIT A
LIST OF HOLDERS
9
