AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT ("Agreement")
dated as of September 3, 1997, is made by and among ICCE, Inc., a Georgia
corporation (the "Company"), and the holders of the capital stock of the
Company listed in Schedule I attached hereto (the "Shareholders").
W I T N E S S E T H:
WHEREAS, the Shareholders are the owners of the shares of capital stock of
the Company as listed on Schedule I hereto (the "Merger Shares"); and
WHEREAS, certain of the Shareholders received the Merger Shares in a
merger pursuant to the terms of that certain Agreement and Plan of
Reorganization, dated as of April 16, 1997 (the "Reorganization Agreement"), by
and among ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Associates, Inc., DCCA Professional Temporaries,
Inc., EKT, Inc., Infinity Enterprises, Inc., ▇▇▇▇▇▇ Acquisition, Inc., DCCA
Acquisition, Inc., EKT Acquisitions, Inc., and Infinity Acquisition, Inc. (the
"Original Merger Agreement" and the "Original Merger," respectively);
WHEREAS, certain of the Shareholders received the Merger Shares in a
merger pursuant to the terms of that certain Agreement and Plan of
Reorganization, dated as of April 1997, by and among the Company, Cama of
Tampa, Inc., Cama Acquisition, Inc. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Cama Merger
Agreement" and the "Cama Merger," respectively);
WHEREAS, certain of the Shareholders received the Merger Shares in a
merger pursuant to the terms of that certain Agreement and Plan of Merger,
dated as of July 25, 1997, by and among the Company, RFCG Merger Subsidiary,
Inc., ▇▇▇▇▇ ▇▇▇▇▇▇ Consulting Group, Inc. and the shareholders of ▇▇▇▇▇ ▇▇▇▇▇▇
Consulting Group, Inc. (the "Rylan Merger Agreement" and the "Rylan Merger,"
respectively);
WHEREAS, certain of the Shareholders received the Merger Shares in a
merger pursuant to the terms of that certain Agreement and Plan of Merger,
dated as of September 3, 1997, by and among the Company, ASRI Merger
Subsidiary, Inc., ACSYS Resources, Inc. and the Shareholders of ACSYS
Resources, Inc. (the "ACSYS Merger Agreement" and the "ACSYS Merger,"
respectively. The ACSYS Merger Agreement, together with the Original Merger
Agreement, the Cama Merger Agreement and the Rylan Merger Agreement shall
hereinafter be referred to as the "Merger Agreements" and the ACSYS Merger,
together with the Original Merger, the Cama Merger and the Rylan Merger, shall
hereinafter be referred to as the "Mergers")
WHEREAS, in connection with the Original Merger, certain of the
Shareholders entered into a Registration Rights Agreement, dated as of May 16,
1997, by and among the Company and the shareholders listed on Schedule I
thereto (the "Original Registration Rights Agreement");
WHEREAS, in connection with the Cama Merger and the Rylan Merger, certain
additional shareholders joined in and became parties to the Original
Registration Rights Agreement;
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the ACSYS Merger Agreement that this Agreement be executed by
the parties hereto, and the parties are willing to execute this Agreement and
to be bound by the provisions hereof;
WHEREAS, in consideration of the transactions contemplated by the ACSYS
Merger Agreement, the parties to the Original Registration Rights Agreement
desire to amend and restate the Original Registration Rights Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the mutual agreements and promises
contained herein, in the Merger Agreements and in the other agreements
contemplated thereby, and other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Shareholders and the Company,
each with the other, do hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
"Common Stock" means the common stock, no par value per share, of the
Company, as authorized by the Company's Articles of Incorporation.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Merger Shares" means the shares of Common Stock issued by the Company in
connection with the Mergers to the Shareholders listed on Schedule I hereto.
If the Company declares a stock split, stock dividend or other distribution of
capital stock in respect of, or issues capital stock in replacement of or
exchange for, the Merger Shares, such shares shall also be Merger Shares
subject to this Agreement.
"Immediate Family" means, with respect to any natural person, each of such
person's spouse, father, mother, siblings, and children.
"Permitted Transferee" means a person who receives shares in the Company
from a Shareholder pursuant to any of the following transactions: (i) any
transfer by gift to a trust in respect of which such Shareholder serves as
trustee; provided however, that the trust instrument governing such trust shall
provide that such Shareholder, as trustee, shall retain sole and exclusive
control over the voting and disposition of such shares until the termination of
this Agreement; (ii) any sale or transfer to the Company or to one or more of
the Shareholders; (iii) any transfer to a member of such Shareholder's
Immediate Family; or (iv) any transfer approved by all members of the Company's
Board of Directors comprising at least seven members.
"Person" means any natural person or any corporation, partnership, trust
or other legal entity.
"Primary Offering" means an Underwritten Public Offering by the Company
pursuant to which the Company receives gross proceeds for its own account of
not less than $10,000,000.
"Registrable Securities" means the Merger Shares held by the Shareholders.
The term "Registrable Securities" does not include shares of capital stock of
the Company which have been registered, as defined below, and sold pursuant to
such registration or which have been sold pursuant to Rule 144 under the
Securities Act.
The terms "register," "registered", and "registration" refer to a
registration of a transaction effected by preparing and filing a registration
statement in compliance with the Securities Act, and the declaration or order
by the Commission of the effectiveness of such registration statement.
"Secondary Offering" means an Underwritten Public Offering by the Company,
but not including a Primary Offering or an offering effected pursuant to
Section 2.1 or 2.3.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" means all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities.
"Underwritten Public Offering" means a public offering of Common Stock for
cash which is offered and sold in a registered transaction on a firm commitment
underwritten basis through one or more broker-dealers registered with the
Commission, all pursuant to an underwriting agreement between the Company and
any selling shareholders on the one hand and such underwriters on the other
hand.
ARTICLE II
REGISTRATION RIGHTS
2.1 Demand Registration Rights.
(a) Company's Obligation. From and after 90 days after the date hereof,
upon receiving a notice from the Shareholders holding at least twenty-five
percent (25%) of the Merger Shares setting forth a request for registration of
a portion of the Registrable Securities of such holders, accompanied by either
(i) the written consent of (a) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, (b) either ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or
▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇ and (c) either ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇▇▇▇▇ to a
registration pursuant to such request, or (ii) a written valuation from either
▇.▇. ▇▇▇▇▇▇▇▇ & Co., ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated, or other reputable
investment banking firm that is a member of the New York Stock Exchange which
opines that the value of the Company in an offering made pursuant to such
request (before accounting for any proceeds received by the Company in any such
offering and without regard to the value of any shares issued by the Company as
consideration in any acquisition completed after the date hereof) would be
$100,000,000 or higher, the Company shall:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all Shareholders who did not join in such notice
to the Company; and
(ii) shall, as soon as practicable, file the necessary registration
statements with the appropriate state and federal securities agencies, and
shall use its best efforts to effect, as soon as practicable, but in any event
within ninety (90) days of receipt of such notice, all such registrations,
qualifications and compliances (including, without limitation, the execution of
an undertaking to file post-effective amendments, appropriate qualifications
under the applicable blue sky or other state securities laws and appropriate
compliance with exemptive regulations issued under the Securities Act and any
other governmental requirements or regulations) as may be so requested and as
would permit or facilitate the sale and distribution of all or such portion of
such requesting Shareholders' Registrable Securities as is specified in such
request, together with all or such portion of the Registrable Securities of any
other Shareholders joining in such request as is specified in a written request
received by the Company within ten (10) business days after such written notice
is given.
(b) Underwriting. The requesting Shareholders shall include in their
request made pursuant to Section 2.1 the name of the managing underwriter or
underwriters, if any, that the majority in interest of such requesting
Shareholders would propose to employ in connection with the public offering
proposed to be made pursuant to the registration requested; provided that if
the Board of Directors reasonably objects to any managing underwriter or
underwriters proposed by the requesting Shareholders, the requesting
Shareholders shall propose another managing underwriter or underwriters that is
or are reasonably acceptable to the Board of Directors. The Company shall
include in the written notice to be given by the Company to the other
Shareholders pursuant to Section 2.1 the name or names of such underwriter or
underwriters to be employed. If the sale proposed by the requesting
Shareholders is to be effected pursuant to an Underwritten Public Offering, the
right of any Shareholder to registration pursuant to Section 2.1 shall be
conditioned upon such Shareholder's participation in such underwriting and the
inclusion of such Shareholder's Registrable Securities in the underwriting to
the extent requested (unless otherwise mutually agreed by a majority in
interest of the requesting Shareholders and such Shareholder) as provided
herein. The Company shall (together with all Shareholders proposing to
distribute their securities through such underwriting) use its best efforts to
enter into an underwriting agreement containing terms of the underwriting as
agreed upon between the Company and such underwriters selected for such
underwriting in the manner set forth above. The Company and the requesting
Shareholders will take such actions as are necessary to comply with the terms
and obligations of such underwriting agreement and will offer such underwriters
and their respective representatives full access to all information reasonably
requested in connection with their "due diligence" review of the Company and
its operations. Notwithstanding any other provisions of Section 2.1, if, in
connection with an Underwritten Public Offering, the managing underwriter
advises the Company or the requesting Shareholders in writing that marketing
factors require a limitation of the number of shares to be underwritten, then
the requesting Shareholders shall so advise the Company (or vice versa) and all
Shareholders whose shares would otherwise be registered and underwritten
pursuant hereto, and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated as follows:
(i) first to the Shareholders that demanded the registration pursuant to
Section 2.1(a) (the "Demand Shareholders") in proportion, as nearly as
practicable, to the number of shares requested to be registered, (ii) second to
any Shareholders who have elected to participate in the registration (other
than the Demand Shareholders) in proportion, as nearly as practicable, to the
number of shares requested to be registered; and (iii) to shares to be offered
by the Company. No Registrable Securities excluded from the underwriting by
reason of the underwriter's marketing limitation shall be included in such
registration. If any Shareholder disapproves of the terms of an Underwritten
Public Offering, he may elect to withdraw therefrom by written notice to the
Company, the managing underwriter and the requesting Shareholders. The
Registrable Securities so withdrawn shall also be withdrawn from registration;
provided, however, that, if by the withdrawal of such Registrable Securities a
greater number of Registrable Securities held by other Shareholders may be
included in such Underwritten Public Offering (subject to any limitation
imposed by the underwriters), then the requesting Shareholders shall offer to
all Shareholders who have included Registrable Securities in the registration
the right to include additional shares in the same proportion used in effecting
the limitation referred to above in this Section 2.1(b).
(c) Postponement of Registration on Request. The Company shall be
entitled to postpone for a reasonable period of time but not exceeding sixty
(60) days the filing of any registration statement otherwise required to be
prepared and filed by it pursuant to this Section 2.1 if the Company
determines, in good faith and in the exercise of its reasonable judgment, that
such action would materially interfere with any material financing,
acquisition, corporate reorganization or other material transaction involving
the Company.
(d) Additional Shares to be Registered. The Company shall be entitled to
include in any registration statement referred to in this Section 2.1, for sale
in accordance with the method of disposition specified by the requesting
Shareholders, shares of Common Stock to be sold by the Company for its own
account, or other shareholders for their own account, except as and to the
extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an Underwritten Public Offering), such inclusion would
result in more than 33% of the Registrable Securities requested to be sold
being excluded from the offering or would materially adversely affect the
marketing of such Registrable Securities to be sold.
(e) Exceptions to Demand Registration Rights. Anything in this Section
2.1 to the contrary notwithstanding, (i) the Company shall not be required to
register Registrable Securities pursuant to this Section 2.1 unless the
aggregate estimated public offering price of all shares of Registrable
Securities, including, without limitation, any for the account of the Company
or any existing shareholders of the Company (based upon the proposed public
offering price estimated in good faith by the Company), shall be $5,000,000 or
more; and (ii) no request for registration under Section 2.1(a) may be made
after the second (2d) anniversary of the Effective Time of the ACSYS Merger.
(f) Limitations on Demand Registration Rights. If a registration
statement requested pursuant to this Section shall not have become effective
within twelve (12) months after the initial filing thereof as a result of any
reason other than (i) a material adverse development in the business or
condition (financial or other) of the Company or (ii) any other act or matter
not within the control of the Company, or if such registration statement shall
be abandoned or withdrawn at the request of the requesting Shareholders, then,
unless the requesting Shareholders shall, promptly upon receipt of a request
therefor, supported by an invoice setting forth the expenses in reasonable
detail, reimburse the Company for the aggregate share of the registration
expenses in respect of such registration statement attributable to the
requesting Shareholders, the Company shall be deemed to have satisfied its
obligation to register the Registrable Securities pursuant to this Section.
Notwithstanding anything to the contrary contained herein, the only securities
that the Company shall be required to register pursuant to this Agreement shall
be Registrable Securities.
2.2 Piggyback Registration.
(a) Company's Obligation. If (but without any obligation to do so) at
any time or from time to time after the date hereof, the Company shall
determine to register any of its Common Stock in any Primary Offering for sale
for cash for its own account (other than a registration (A) relating to the
sale of securities to participants in an employee benefit plan, (B) on Form S-4
or S-8, or (C) on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), then the Company shall:
(i) promptly give to each Shareholder written notice thereof (which
shall include, to the extent then available, a list of the jurisdictions in
which the Company intends to attempt to qualify the offer and sale of such
securities under the applicable blue sky or other state securities laws); and
(ii) use its best efforts to include in such registration (and any
related qualification under blue sky laws or other compliance), and in any
Underwritten Public Offering involved therein, all the Registrable Securities
specified in any written request by any Shareholder received by the Company
within ten (10) business days after such written notice is given.
(b) Underwriting. The right of any Shareholder to registration pursuant
to this Section 2.2 shall be conditioned upon such Shareholder's participation
in the Underwritten Public Offering and the inclusion of such Shareholder's
Registrable Securities in the Underwritten Public Offering to the extent
provided herein. All Shareholders proposing to distribute their securities
through such Underwritten Public Offering (together with the Company and any
other shareholders distributing their securities through such underwriting)
shall enter into an underwriting agreement containing terms of the underwriting
as agreed upon between the Company and underwriters selected by it.
(c) Termination of Registration by Company. Notwithstanding any other
provision of this Section 2.2, at any time before or after the filing of a
registration statement that is subject to Section 2.2 hereof, the Company may,
in its sole discretion, abandon or terminate such registration without the
consent of any Shareholder.
(d) Limits on Registration Rights, Notwithstanding any other provision of
this Section 2.2, no request for registration pursuant to Section 2.2(a)(ii)
may be made after the second anniversary of the Effective Time of the ACSYS
Merger.
(e) Registrations. The Company shall not be required to include
Registrable Securities in the securities covered by a registration statement on
any form which limits the amount of securities which may be registered by the
issuer and/or selling security holders if, and to the extent that, such
inclusion would make the use of such form unavailable, so long as no other
shares are to be included in such securities for the account of any person
other than the Company.
(f) Certain Underwriter Limitations. Notwithstanding any other
provisions of this Section 2.2, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the underwriter may limit the Registrable Securities to be
included in any registration and Underwritten Public Offering. In such event,
the underwriter shall so advise all Shareholders whose shares would otherwise
be registered and underwritten pursuant thereto, and the number of shares that
may be included in the registration and Underwritten Public Offering shall be
allocated: (i) first to the Shareholders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities that were
proposed to be sold by such Shareholders; and then (ii) to the Company; and
(iii) to the extent that such securities do not exhaust the number of shares
determined by such underwriter, among all remaining shareholders of the Company
(other than the Shareholders) to whom the Company desires to extend
registration rights, in proportion, as nearly as practicable, to the respective
amounts of shares of common stock that are proposed to be sold by such
shareholders.
(f) No Registrable Securities excluded from the Underwritten Public
Offering by reason of the managing underwriter's marketing limitation shall be
included in such registration. If any Shareholder disapproves of the terms of
the Underwritten Public Offering, he may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. The Registrable Securities
so withdrawn shall also be withdrawn from registration; provided, however, that
if by the withdrawal of such Registrable Securities a greater number of
Registrable Securities held by other Shareholders may, in the opinion of the
managing underwriter, be included in such registration (subject to any
limitation imposed by the underwriters), then the Company shall offer to all
Shareholders who have included Registrable Securities in the registration the
right to include additional shares in the amount derived from the formula used
in effecting the limitation referred to above in this Section 2.2.
(g) If Registrable Securities held by a Shareholder are included in the
offering, the selling Shareholder shall agree in writing, if requested by the
Company or an underwriter of such registered public offering, not to sell or
otherwise transfer or dispose of any Common Stock (or other securities) of the
Company held by such Shareholder during a period of up to one hundred eighty
(180) days following the effective date of such registration statement of the
Company. Such agreement shall be in form satisfactory to the Company and such
underwriter, and may be included in the underwriting agreement. The Company
may impose stop-transfer instructions with respect to the securities subject to
the foregoing restriction until the end of the required stand-off period.
2.3 Expenses. All expenses of any registrations permitted pursuant to
this Agreement (including, but not limited to, any qualifications under the
blue-sky or other state securities laws, compliance with governmental
requirements of preparing and filing any post-effective amendments required for
the lawful distribution of any securities to the public in connection with
registration, of supplying prospectuses, offering circulars or other documents,
and all other registration and filing fees, printing expenses, fees and
disbursements of independent public accountants of the Company, fees of the
Company's counsel, fees of the National Association of Securities Dealers,
Inc., transfer taxes, fees of transfer agents and registrars, and the
reasonable fees and disbursements of a single special counsel retained by a
majority in interest of the Shareholders, but excluding Selling Expenses, as
defined), shall be paid by the Company. All Selling Expenses in connection
with any registration statement filed pursuant to Article II hereof shall be
borne by participating sellers in proportion to the number of shares sold by
each.
2.4 Registration Procedures. In the case of such registration,
qualification or compliance effected by the Company pursuant to this Article II
in which any Shareholder's Registrable Securities are included, the Company
shall, at its expense:
(a) prepare, provide counsel for the selling Shareholders reasonable
opportunity to comment on, and file with the Commission a registration
statement with respect to the Registrable Securities, and use its best efforts
to cause such registration statement to become effective;
(b) prepare, provide counsel for the selling Shareholders reasonable
opportunity to comment on, and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained therein as
may be necessary to keep such registration statement effective for such period
as may be reasonably necessary to effect the sale of such Registrable
Securities, not to exceed one hundred eighty (180) days;
(c) furnish to the Shareholders participating in such registration and to
the underwriters of Registrable Securities being registered such reasonable
number of copies of the registration statement, preliminary prospectus, final
prospectus and such other documents as such underwriters and shareholders may
reasonably request in order to facilitate the public offering of such
Registrable Securities;
(d) use its diligent good faith efforts to register or qualify the
Registrable Securities covered by such registration statement under such state
securities or blue sky laws of such jurisdictions as such participating
Shareholders may reasonably request in writing within twenty (20) days
following the original filing of such registration statement; provided,
however, that in the case of an Underwritten Public Offering, the managing
underwriter shall (to the exclusion of the participation of the Shareholders)
advise the Company with respect to blue sky qualification and related matters;
(e) notify counsel for the Shareholders participating in such
registration, promptly after it shall receive notice thereof, of the time when
such registration statement has become effective or a supplement to any
prospectus forming a part of such registration statement has been filed;
(f) notify counsel for such Shareholders promptly of any request by the
Commission for the amending or supplementing of such registration statement or
prospectus or for additional information;
(g) prepare and file with the Commission, promptly upon the request of
any Shareholders, any amendments or supplements to such registration statement
or prospectus which, in the opinion of counsel for such Shareholders (and
concurred in by counsel for the Company), is required under the Securities Act
or the rules and regulations thereunder in connection with the distribution of
the Registrable Securities other than an amendment or supplement required
solely as a result of a change by such Shareholder in the method of
distribution of the Registrable Securities;
(h) prepare and promptly file with the Commission and promptly notify
counsel for such Shareholders of the filing of such amendment or supplement to
such registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
Registrable Securities is required to be delivered under the Securities Act,
any event other than a change in the method of distribution of the Registrable
Securities selected by a Shareholder shall have occurred as the result of which
any such prospectus or any other prospectus as then in effect would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances in
which they were made, not misleading;
(i) not file any amendment or supplement to such registration statement
or prospectus if, in the opinion of counsel for such Shareholders (concurred in
by counsel for the Company), such amendment or supplement does not comply in
all material respects with the requirements of the Securities Act or the rules
and regulations thereunder, after having been furnished with a copy
substantially in the form thereof at least two (2) business days prior to the
filing thereof; provided, however, that if in the opinion of counsel for the
Company, the filing of such amendment or supplement is reasonably necessary to
protect the Company from any liabilities under any applicable federal or state
law and such filing will not violate applicable law, the Company may make such
filing;
(j) use its reasonable business efforts (if the offering is an
Underwritten Public Offering) to furnish, at the request of any seller, on the
date that Registrable Securities are delivered to the underwriters for sale
pursuant to such registration, and subject to the receipt of appropriate
representations from such sellers: (i) an opinion dated such date of counsel
representing the Company for the purposes of such registration, addressed to
the underwriters and to such seller, 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 and the applicable rules and regulations of the Commission
thereunder (except that such counsel need express no opinion as to financial
statements, the notes thereto, and the financial schedules and other financial
and statistical data contained therein), and (ii) a letter dated such date from
the independent public accountants retained by the Company, addressed to the
underwriters, 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 the
registration in respect of which such letter is being given as such
underwriters may reasonably request; and
(k) make available for inspection by each seller, any underwriter
participating in any distribution pursuant to such registration statement, and
any attorney, accountant or other agent retained by such seller or underwriter,
all financial and other records, pertinent corporate documents and properties
of the Company, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement
and permit such seller, attorney, accountant or agent to participate in the
preparation of such registration statement; provided, however, that the
Company's furnishing of such records, documents and information and the
Company's granting of access to properties may be conditioned upon any proposed
recipient's execution and delivery to the Company of a confidentiality
agreement prepared by counsel to the Company.
2.5 Indemnification and Contribution.
(a) In the case of each registration effected by the Company pursuant to
this Agreement in which any Shareholder's Registrable Securities are included,
the Company agrees to indemnify and hold harmless such Shareholder, each
underwriter of the shares of Registrable Securities so registered and each
person who controls any such underwriter within the meaning of Section 15 of
the Securities Act, against any and all losses, claims, damages or liabilities
to which they or any of them may become subject under the Securities Act or
otherwise, including any amount paid in settlement of any litigation, commenced
or threatened; if such settlement is effected with the written consent of the
Company, and to reimburse them for any reasonable legal or other reasonable
expenses incurred by them in connection with the investigation of any claims
and defenses of any actions (subject to subsection (c) of this Section 2.5),
insofar as any such losses, claims, damages, liabilities or actions arise out
of or are based upon: any untrue statement or alleged untrue statement of a
material fact contained in the registration statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or
supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that, notwithstanding the foregoing,
the Company may agree to indemnify each such underwriter and person who so
controls such underwriter to such other extent as the Company and such
underwriter shall agree; and provided further, however, that the
indemnification agreement contained in this subsection (a) shall not (i) apply
to such losses, claims, damages, liabilities or actions arising out of, or
based upon, any such untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was made in
reliance upon and in conformity with information furnished to the Company in
writing by a Shareholder or such underwriter claiming rights of indemnification
pursuant to this Section 2.5 for use in connection with the preparation of the
registration statement or any preliminary prospectus or final prospectus
contained in the registration statement or any such amendment thereof or
supplement thereto or (ii) inure to the benefit of any person to the extent
such person's claim for indemnification hereunder arises out of or is based on
any violation by such person of applicable law.
(b) In the case of each registration effected by the Company pursuant to
this Agreement in which any Shareholder's Registrable Securities are included,
such Shareholder shall be obligated, and shall cause each underwriter of the
shares of Registrable Securities to be registered on behalf of such person
(each Shareholder and such underwriters being referred to severally in this
subsection (b) as the "indemnifying person") to be obligated, in the same
manner and to the same extent as set forth in subsection (a) of this Section
2.5, to indemnify and hold harmless the Company and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act,
its directors and officers, with respect to any statement or alleged untrue
statement in, or omission or alleged omission from, such registration statement
or any post-effective amendment thereof or any preliminary prospectus or final
prospectus (as amended or supplemented, if amended or supplemented as
aforesaid) contained in such registration statement, if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by such indemnifying person for use in connection
with the preparation of such registration statement or any preliminary
prospectus or final prospectus contained in such registration statement or any
such amendment thereof or supplement thereto.
(c) Each person to be indemnified pursuant to this Section 2.5 (an
"Indemnitee") shall, within five (5) days after the discovery by the Indemnitee
of any matters giving arise to a claim for indemnification hereunder, give
written notice to the person or persons responsible for indemnifying such
Indemnitee (an "Indemnifying Party") setting forth any claim with respect to
which the Indemnitee seeks indemnification, provided that the failure of any
Indemnitee to give notice as provided herein shall not relieve the Indemnifying
Party of its obligations under this Section except to the extent that the
Indemnifying Party is actually prejudiced by such failure to give notice. In
case any such action, proceeding or claim is brought against any Indemnitee,
the Indemnifying Party shall be entitled to participate in and, unless in the
reasonable good faith judgment of the Indemnitee a conflict of interest between
such Indemnitee and the Indemnifying Party may exist in respect of such action,
proceeding or claim, assume the defense thereof, with counsel reasonably
satisfactory to the Indemnitee. After notice from the Indemnifying Party to
the Indemnitee of its election so to assume such defense, the Indemnifying
Party shall not be liable to such Indemnitee for any legal or other expenses
subsequently incurred by the Indemnitee in connection with such defense other
than reasonable costs of investigation. In any event, unless and until the
Indemnifying Party elects in writing to assume and does so assume the defense
of any such claim, proceeding or action, the Indemnitee's costs and expenses
arising out of the defense, settlement or compromise of any such action, claim
or proceeding shall be considered losses subject to indemnification hereunder.
If the Indemnifying Party elects to defend any such action or claim, then the
Indemnitee shall be entitled to participate in such defense with counsel of
Indemnitee's choice at Indemnitee's sole cost and expense. The Indemnifying
Party shall not be liable for any settlement of any action, claim or proceeding
effected without its written consent, provided, however, that the Indemnifying
Party shall not unreasonably withhold, delay or condition its consent.
Anything in this Section 2.5(c) to the contrary notwithstanding, the
Indemnifying Party shall not, without the Indemnitee's prior written consent
(which consent shall not be unreasonably withheld), settle or compromise any
claim or consent to entry of any judgment in respect thereof which imposes any
future obligation on the Indemnitee or which does not include, as an
unconditional term thereof, the giving by the claimant or the plaintiff to the
Indemnitee, a release from all liability in respect of such claim.
If the indemnification provided for in Sections 2.5(a) and (b) hereof is
unavailable or insufficient to hold harmless an Indemnitee under such
paragraphs in respect of any losses, claims, damages or liabilities or actions
in respect thereof referred to therein, then each Indemnifying Party shall in
lieu of indemnifying such Indemnitee contribute to the amount paid or payable
by such Indemnitee as a result of such losses, claims, damages, liabilities or
actions in such proportion as appropriate to reflect the relative fault of the
Company, on the one hand, and the underwriters and the sellers of such
Registrable Securities, on the other, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
actions as well as any other relevant equitable considerations, including the
failure to give any notice under Section 2.5(c). The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact relates to information supplied by the
Company, on the one hand, or the underwriters and the sellers of such
Registrable Securities, on the other, and to the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by an Indemnitee as a result
of the losses, claims, damages, liabilities or action in respect thereof,
referred to above in this paragraph, shall be deemed to include any legal or
other expenses reasonably incurred by such Indemnitee in connection with
investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentations (within the meaning of Section 11(f) of the
Securities Act), shall be entitled to contribution from any person who is not
guilty of such fraudulent misrepresentation. This indemnification of
underwriters provided for in this Section 2.5 shall be on such other terms and
conditions as are at the time customary and reasonably required by such
underwriters.
2.6 Information by Shareholders. Each Shareholder requesting Registrable
Securities to be included in any registration shall furnish to the Company such
information regarding such Shareholder and the distribution proposed by such
Shareholder as the Company may request and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Article II.
2.7 Rule 144 Reporting. With a view to making available to the
Shareholders the benefits of certain rules and regulations of the Commission
which may permit the sale of the Registrable Securities to the public without
registration, the Company agrees to:
(a) Commission Reports. File with the Commission all reports and other
documents thereafter required of the Company if the Company is or becomes
subject to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and
(b) Other Information. Furnish to each Shareholder forthwith upon its
request (i) a copy of the most recent annual or quarterly report of the
Company, and (ii) such other reports and documents as may be reasonably
requested in availing any Shareholder of any rule or regulation of the
Commission permitting the sale of any such securities without registration.
2.8 Transfer of Registration Rights. If a Shareholder transfers Common
Stock to a Permitted Transferee, the Shareholder may assign the Permitted
Transferee the rights to cause the Company to register such Common Stock under
this Article II provided the assignment of such registration rights occurs
simultaneously with the transaction by which the Permitted Transferee receives
shares of Common Stock. Except as set forth in the preceding sentence, the
rights to cause the Company to register securities under this Article II are
personal to each Shareholder and may not be assigned except upon the consent of
the Company (which may be granted or withheld in its discretion) following
receipt by the Company of notice of proposed transfer by any Shareholder to any
assignee or transferee of any Merger Shares and receipt of the agreement of
such assignee or transferee to be bound by the provisions of this Agreement
applicable to holders of Registrable Securities. Furthermore, should any
Shareholder specifically named in Section 2.1(a) cease to be a Shareholder or
transfer more than fifty percent (50%) of the Merger Shares held by such
Shareholder, such Shareholder's name shall be deemed deleted from Section
2.1(a) hereof.
2.9 Notice of Sale Information. Any notice from a holder of Registrable
Securities requesting registration of some or all of such Registrable
Securities pursuant to Sections 2.1 or 2.2 or 2.3 shall (i) specify the number
of shares of Registrable Securities intended to be included in such
registration; (ii) describe the nature and method of the proposed offering and
sale, and (iii) include an undertaking to provide all information and materials
concerning such holder and the method of distribution and to take any other
actions reasonably requested by the Company to enable the Company to comply
with the Securities Act, any state securities law and/or the applicable
requirements of the Commission or any state securities commissioner or similar
agency or official.
2.10 Additional Shareholders. With the approval of the Board of Directors
of the Company, the Company may allow persons acquiring shares of Common Stock
from the Company to agree in writing to become party to this Agreement and to
be bound by all the terms and conditions hereof prior to acquiring such shares.
Such shareholders shall become party to this Agreement by executing a joinder
agreement substantially in the form of Exhibit 1, and enjoy the rights and be
bound by the obligations of Shareholders under this Agreement.
ARTICLE III
TRANSFERABILITY
3.1 Transferability. Transfer of the Merger Shares shall be made only on
the books of the Company by the holders of record thereof or by their legal
representatives who shall furnish proper evidence of authority to transfer, or
by their attorney thereunto authorized by power of attorney duly executed and
filed with the Secretary of the Company. The holder(s) in whose name the
Merger Shares stand on the books of the Company shall be deemed by the Company
to be owner(s) thereof for all purposes.
3.2 Restrictive Legends. Unless and until otherwise permitted by this
Section, each instrument evidencing Merger Shares shall contain or otherwise be
imprinted with a suitable legend in substantially the following form:
"This security has not been registered under the Securities Act of
1933 (the "1933 Act") or any state securities act. The shares
evidenced by this certificate have been issued or sold in reliance on
exemptions available under the 1933 Act and applicable state
securities laws and may not be sold or transferred except in a
transaction that is exempt under such act or pursuant to an effective
registration under such act.
The Company is hereby authorized to place "stop transfer" instructions on its
records or to instruct any transfer agent to prevent the transfer of such
shares except in conformity with this Article.
3.3 Restriction on Transfer. No holder shall transfer any of the Merger
Shares until it has first given written notice to the Company describing
briefly the manner of any such proposed transfer and until (i) the Company has
received from the holder's counsel an opinion (reasonably satisfactory in form
and substance to the Company's counsel) that such transfer can be made without
compliance with the registration provisions of the Securities Act or any state
Securities Act and without the necessity of perfection of an exemption pursuant
to Regulation A adopted pursuant to said Securities Act, or (ii) such transfer
complies with Rule 144 (or comparable successor provisions) promulgated under
the said Securities Act and applicable state securities act requirements, or
(iii) a registration statement filed by the Company is declared effective by
the Commission and governing state securities act authorities or steps
necessary to perfect exemptions from such registration are completed.
Notwithstanding anything to the contrary herein, in the event that there
is an Underwritten Public Offering of securities of the Company pursuant to a
registration covering Registrable Securities and a Shareholder of Registrable
Securities does not elect to sell his Registrable Securities to the
underwriters of the Company's securities in connection with such offering, such
Shareholder shall refrain from selling such Registrable Securities during the
period of distribution of the Company's securities by such underwriters and the
period in which the underwriting syndicate participates in the after market;
provided however, that such Shareholder shall, in any event, be entitled to
sell its Registrable Securities commencing on the one hundred eightieth (180th)
day after the effective date of such registration statement.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. Any notice, request, reply instruction or other
communication (herein severally and collectively called "notice") in this
Agreement provided or permitted to be given to the Company or to any
Shareholder must be given in writing and may be given or served by overnight
delivery service, depositing the same in the United States mail, in certified
or registered form with return receipt requested and postage fully prepaid,
addressed to the party or parties to be notified, or by delivering the same in
person to such party or parties. Notice deposited in the United States mail,
mailed in the manner hereinabove described, shall be effective on the date
indicated on the return receipt. Notice given in any other manner shall be
effective only if and when received by the party to be notified. Unless
appropriate notice of a change of address is otherwise provided to the Company,
any notice to Shareholders shall be addressed in accordance with the address
specified in the stock records of the Company. In any event, until notice is
given of a change of address, notice to the Company, ICCE, Inc., shall be
addressed and provided as follows:
If to Company: ICCE, Inc.
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
and to: ICCE, Inc.
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, L.L.P
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
4.2 Remedies. Each party hereto acknowledges that a remedy at law for
any breach or attempted breach of this Agreement will be inadequate, agrees
that each other party hereto shall be entitled to specific performance and
injunctive and other equitable relief in case of any such breach or attempted
breach, and further agrees to waive any requirement for the securing or posting
of any bond in connection with the obtaining of any such injunctive or any
other equitable relief.
4.3 Effect of Sale. Any Shareholder who sells all of his Registrable
Securities pursuant to the terms of this Agreement shall cease to be a party to
this Agreement and shall have no further rights or obligations hereunder.
4.4 Amendment. This Agreement may not be modified or amended except in a
writing signed by the Company and the holders of 66-2/3% of the total
Registrable Securities outstanding at such time (with any shares of Registrable
Securities issuable upon conversion of other securities deemed to be
outstanding for these purposes).
4.5 Successors and Assigns. This Agreement shall be binding upon and
inure to the parties contained in this Agreement and their respective heirs,
executors, distributees, successors (including successors by merger) and
permitted assigns.
4.6 Invalid Provisions. Should any portion of this Agreement be adjudged
or held to be invalid, unenforceable, or void, such holding shall not have the
effect of invalidating or voiding the remainder of this Agreement and the
parties hereby agree that the portion so held invalid, unenforceable or void
shall, if possible, be deemed amended or reduced in scope, or to otherwise be
stricken from this Agreement to the extent required for the purposes of
validity and enforcement thereof.
4.7 Section Headings. The section and paragraph headings contained
herein are for reference purposes only and shall not in any way affect the
meaning and interpretation of this Agreement.
4.8 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute only one
instrument.
4.9 Entire Agreement. This Agreement constitutes the sole and entire
agreement between the parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
on its behalf and its corporate seal to be hereunto affixed by its duly
authorized officers and the Shareholders have caused this Agreement to he
executed by the appropriate authorized person, as of the day and year first
above written.
ICCE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________
_____________________________________
SHAREHOLDERS
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ACSYS RESOURCES, INC. SHAREHOLDERS
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