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EXHIBIT 101
EXHIBIT D
REGISTRATION RIGHTS AGREEMENT, dated as of November 12, 1997
(the "Agreement"), between Industrial Imaging Corporation, a
Delaware corporation (the "Company"), and Imprimis Investors
LLC (the "Investor").
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The Company and the Investor have entered into the Securities
Purchase Agreement, dated as of November 12, 1997 (the "Securities Purchase
Agreement"), pursuant to which, among other things, the Company is selling to
the Investor shares of Common Stock, par value $0.01 per share (the "Common
Stock"), of the Company, and warrants that may be exercised for shares of Common
Stock (the "Warrants").
The execution and delivery of this Agreement by the Company is a
condition precedent to the obligations of the Investor under the Securities
Purchase Agreement.
In consideration of the foregoing, the covenants and obligations
set forth below, the parties agree as follows:
1. REGISTRATION ON REQUEST.
(a) REQUEST. Subject to the limitations set forth in Section
1(b), at any time more than 180 days after the date hereof, a Holder or Holders
(as defined in Section 9(b)) may require on up to two occasions, upon written
notice to the Company, the Company to effect the registration under the
Securities Act of 1933 (the "Securities Act") of all or part of the Registrable
Securities (as defined in Section 9(b)) held by such requesting Holder or
Holders (each, an "Initiating Holder"). The Company promptly shall give notice
of such requested registration to all other Holders of Registrable Securities
who are entitled pursuant to Section 2 to join in such registration and,
thereupon, the Company shall use its best efforts to effect, on the earliest
possible date, the registration under the Securities Act for public sale (in
accordance with the method of disposition specified in the notice from the
requesting Holders), of the Registrable Securities that the Company has been
requested to register by such Initiating Holder or Holders and the other
Registrable Securities that the Company has been requested to register by the
Holders thereof by written notice given to the Company within 20 days after the
giving of such notice by the Company.
(b) LIMITATIONS. The Company shall not be required to effect a
registration pursuant to Section 1(a):
(i) within 90 days after the effective date of a registration
statement (a "Registration Statement") filed by the Company with the Securities
and Exchange Commission (the "Commission") for a public offering and sale of
equity securities of the Company (other than a registration of securities
pursuant to a Registration Statement on Form S-8 or Form S-4 or
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any successor form thereto, any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation or any registration statement relating solely to employee stock
option, stock purchase, benefit or similar plans (a "Special Registration
Statement")), provided that the Company shall use its best efforts to achieve
effectiveness of a registration requested hereunder promptly following such 90
day period if such request is made during such 90 day period; and
(ii) on more than two occasions; it being understood and
agreed that a registration effected under Section 2 shall not be counted as a
registration under this Section.
(c) EFFECTIVE REGISTRATION STATEMENT. A registration requested
pursuant to this Section 1 shall not be deemed to have been effected, and shall
not be deemed a requested registration for purposes of Section 1(a) and Section
1(b), (i) unless a Registration Statement covering all Registrable Securities
specified in the notices from the Initiating Holders has become effective and
remained effective in compliance with the provisions of the Securities Act with
respect to the disposition of all of such Registrable Securities covered by such
Registration Statement until the earlier of such time as all of such Registrable
Securities have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such Registration
Statement, (ii) if after it has become effective, such registration is
interfered with by any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any reason not
attributable to the Initiating Holders or (iii) if the conditions to closing
specified in the underwriting agreement, if any, entered into in connection with
such registration are not satisfied or waived, other than by reason of a failure
on the part of the Initiating Holders.
(d) PRIORITY IN REQUESTED REGISTRATION. So long as the Initiating
Holders hold at least 25% of the Registrable Securities issued to all Holders on
the date of this Agreement, the Company shall have the right to include in any
Registration Statement initiated by a Holder pursuant to this Section 1, for
sale in accordance with the method of disposition specified by the requesting
Holders, Common Stock to be sold by the Company for its own account. If, in the
good-faith judgment of the managing underwriter of any underwritten offering the
inclusion of all of the Registrable Securities requested for inclusion pursuant
to this Section 1 and the Common Stock proposed to be sold by the Company for
its own account would adversely affect the successful marketing of the proposed
offering, then the number of shares of Common Stock to be included in the
offering shall be reduced to the required level, FIRST, by excluding Common
Stock to be sold by the Company for its own account and SECOND, by reducing the
participation of such Initiating Holders and other Holders in such offering pro
rata among such Initiating Holders and other Holders, based upon the amount of
Registrable Securities owned by such Initiating Holders and other Holders.
Except for Special Registration Statements and other registrations required
under Section 1, the Company will not cause any other registration statement
with respect to its Registrable Securities for its own account to become
effective less than 120 days after the effective date of any registration
requested pursuant to this Section 1.
(e) SELECTION OF UNDERWRITERS. If the proposed method of
disposition is an underwriting, the Initiating Holders holding a majority of the
Registrable Securities to be sold in
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such offering may designate the managing underwriter of such offering, which
underwriter shall be reasonably acceptable to the Company. Whenever a requested
registration is for an underwritten offering, only securities which are to be
included in the underwriting may be included in the registration unless the
managing underwriter consents otherwise.
2. INCIDENTAL REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. If at any time and
from time to time the Company proposes to register any shares of its capital
stock under the Securities Act, whether or not for sale for its own account, on
a form and in the manner that would permit registration of Registrable
Securities for the sale to the public under the Securities Act, the Company will
give written notice to all Holders of its intention to do so. Upon the written
request of a Holder given within 20 days after the giving of any such notice by
the Company, the Company will use its best efforts to cause to be included in
such Registration Statement all of the Registrable Securities so requested for
inclusion by Holders. If the Registration Statement is to cover, in whole or in
part, any underwritten distribution, the Company shall use its best efforts to
cause the Registrable Securities requested for inclusion pursuant to this
Section to be included in the underwriting on the same terms and conditions
(including any lock-up) as the shares otherwise being sold through the
underwriters.
(b) PRIORITY IN INCIDENTAL REGISTRATIONS. If, in the good faith
judgment of the managing underwriter of any underwritten offering, the inclusion
of all of the Registrable Securities requested for inclusion pursuant to this
Section 2 would adversely affect the successful marketing of the proposed
offering, then the number of shares of capital stock and Registrable Securities,
if any, to be included in such registration shall be reduced, such reduction
shall be applied, FIRST, by excluding (on a pro rata basis) capital stock of the
Company to be sold by persons other than the Holders and Registrable Securities
proposed to be sold by all Holders and SECOND, by excluding shares of capital
stock to be sold by the Company for its own account. Notwithstanding the
foregoing provisions, the Company may withdraw any registration statement
referred to in this Section 2 without incurring any liability to Holders of
Registrable Securities.
3. REGISTRATION PROCEDURES. If and whenever the Company is
required by the provisions of Section 1 or 2 to effect the registration of
Registrable Securities under the Securities Act, the Company will, at its
expense, as expeditiously as possible:
(i) prepare and, in any event within 40 days after a request
for registration has been given to the Company, file with the Commission a
Registration Statement with respect to such Registrable Securities and use its
best efforts to cause such Registration Statement to become effective; provided
that the Company may discontinue any registration of its securities which is
being effected pursuant to Section 2 at any time prior to the effective date of
the Registration Statement;
(ii) prepare and file with the Commission such amendments and
supplements to any Registration Statement referred to in clause (i) of this
Section 3 and the prospectus used in connection therewith as may be necessary to
keep such Registration
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Statement effective for a period not in excess of 180 days (except with respect
to any Registration Statement filed pursuant to Rule 415 under the Securities
Act if the Company is eligible to file a Registration Statement on Form S-3, in
which case the Company shall use its best efforts to keep such Registration
Statement effective and updated until such time as all of the Registrable
Securities have been disposed of in accordance with the intended methods of
disposition by the Holder or Holders set forth in such Registration Statement)
and to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such Registration Statement
during such period in accordance with the intended methods of disposition by the
seller or sellers thereof set forth in such Registration Statement; provided
that before filing a Registration Statement or prospectus, or any amendments or
supplements thereto, the Company will furnish to one counsel selected by the
Holders holding a majority of the Registrable Securities covered by such
Registration Statement to represent all Holders of Registrable Securities
covered by such Registration Statement, copies of all documents proposed to be
filed, which documents will be subject to the review of such counsel;
(iii) furnish to each seller of such Registrable
Securities such number of copies of any Registration Statement referred to in
clause (i) of this Section 3 and of each amendment and supplement thereto (in
each case including all exhibits), such number of copies of the prospectus
included in such Registration Statement (including each preliminary prospectus
and 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 seller may reasonably request;
(iv) use its best efforts to register or qualify such
Registrable Securities covered by any Registration Statement referred to in
clause (i) of this Section 3 under such other securities or blue sky laws of
such jurisdictions as each seller shall reasonably request, and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller, 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 where, but for the requirements of this
clause (iv), it would not be obligated to be so qualified or to consent to
general service of process in any such jurisdiction;
(v) use its best efforts to cause such Registrable
Securities covered by a Registration Statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such Registrable
Securities;
(vi) cause representatives of the Company to participate
in any "road show" or "road shows" reasonably requested by any underwriter of an
underwritten or "best efforts" offering of any Registrable Securities;
(vii) notify each seller of any such Registrable
Securities covered by a Registration Statement, at any time when a prospectus
relating thereto is required to be delivered
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under the Securities Act, of the Company's becoming aware that the prospectus
included in such Registration Statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and at the request of any such seller,
prepare and furnish to such seller a reasonable number of copies of an amended
or supplemental prospectus as may be necessary so that, as thereafter delivered
to the sellers of such Registrable 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 then existing;
(viii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable (but not more than eighteen
months) after the effective date of the Registration Statement, an earnings
statement which shall satisfy the provisions of Section 11(a) of the Securities
Act and the rules and regulations promulgated thereunder;
(ix) use its best efforts to list such Registrable
Securities on any securities exchange or automated quotation system on which
securities of the same class are then listed, if such Registrable Securities are
not already so listed and if such listing is then permitted under the rules of
such exchange or system, and to provide a transfer agent and registrar for such
Registrable Securities covered by a Registration Statement not later than the
effective date of such Registration Statement;
(x) enter into such customary agreements (including an
underwriting agreement in customary form) and take such other actions as sellers
of a majority of such Registrable Securities or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities;
(xi) obtain a "cold comfort" letter or letters from the
Company's independent public accountants in customary form and covering matters
of the type customarily covered by "cold comfort" letters as the seller or
sellers of a majority of such Registrable Securities shall reasonably request;
(xii) obtain an opinion of counsel for the Company in
customary form and covering matters of the type customarily covered in opinions
of issuer's counsel as the seller or sellers of a majority of such Registration
Securities shall reasonably request; and
(xiii) make available for inspection by any seller of
such Registrable Securities covered by a Registration Statement, by any
underwriter participating in any disposition to be effected pursuant to such
Registration Statement and by any attorney, accountant or other agent retained
by any such seller or any such underwriter, all pertinent financial and other
records, pertinent corporate documents and properties of the Company, and cause
all of 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.
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4. EXPENSES. With respect to each registration effected pursuant
to Section 1 or 2, all Registration Expenses (defined below) in connection with
such registration and the public offering in connection therewith shall be borne
by the Company; provided that security holders participating in any such
registration shall bear their pro rata share of the underwriting discounts and
selling commissions (on the basis of the number of Registrable Securities of
each such person included in such registration) and 50% of the fees and
disbursements in excess of $200,000 described in clauses (vi) and (vii) of the
immediately succeeding sentence; provided, further that the Company shall not be
obligated to bear any Registration Expenses with respect to any registration
effected pursuant to Section 1 after the second anniversary hereof.
"Registration Expenses" shall mean any and all expenses incident to performance
of or compliance with this Agreement, including, without limitation, (i) all
registration and filing fees of the Commission, or the National Association of
Securities Dealers, Inc., (ii) all fees and expenses of complying with
securities or blue sky laws (including fees and disbursements of counsel for the
underwriters in connection with blue sky qualifications of the Registrable
Securities), (iii) all printing, messenger and delivery expenses, (iv) all fees
and expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange or automated quotation system pursuant to
Section 3(ix), (v) the fees and disbursements of counsel for the Company and of
its independent public accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such performance and
compliance, (vi) the reasonable fees and disbursements of one counsel selected
by the Holders of a majority of the Registrable Securities being registered to
represent all Holders of the Registrable Securities being registered in
connection with each such registration, (vii) any fees and disbursements of
underwriters customarily paid by the issuers or sellers of securities, including
fees and disbursements of counsel for the underwriters, but excluding
underwriting discounts and commissions, (viii) liability insurance if the
Company so desires or if the underwriters so require, and (ix) the reasonable
fees and expenses of any special experts retained by the Company in connection
with the requested registration.
5. INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of a
registration of any Registrable Securities pursuant to Section 1 or 2, the
Company will indemnify and hold harmless each Holder of such Registrable
Securities included in a Registration Statement pursuant to the provisions of
this Agreement and any underwriter (as defined in the Securities Act) of such
Registrable Securities, and their respective Affiliates, and each of their
successors from and against, and will reimburse such Holder, underwriter and
Affiliate with respect to, any and all claims, actions, demands, losses,
damages, liabilities, costs and expenses to which such Holder, underwriter or
Affiliate may become subject under the Securities Act or otherwise, including,
without limitation, the reasonable fees and expenses of legal counsel (including
those incurred in connection with any claim for indemnity hereunder) insofar as
such claims, actions, demands, losses, damages, liabilities, costs or expenses
(or actions, or proceedings, whether commenced or threatened in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in such Registration Statement, any prospectus
contained therein or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or
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necessary to make the statements therein, in light of the circumstances in which
they are made, not misleading or arise out of any violation by the Company of
any rule or regulation under the Securities Act or any state securities laws
applicable to the Company and relating to action or inaction required of the
Company in connection with such registration; provided that the Company will not
be liable in any case to the extent, but only to the extent, that any such
claim, action, demand, loss, damage, liability, cost or expense arises out of or
is based upon an untrue statement or omission made in reliance upon and in
strict conformity with information furnished by such Holder or such underwriter
in writing specifically for use in the preparation thereof. This indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such Holder, underwriter or Affiliate and shall survive the transfer
of such securities by such Holder or such underwriter.
(b) INDEMNIFICATION BY THE HOLDERS. Each Holder of Registrable
Securities, severally and not jointly, which Registrable Securities are included
in a registration pursuant to the provisions of this Agreement, will indemnify
and hold harmless the Company, each person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who signs
the Registration Statement including such Registrable Securities, each director
of the Company, each underwriter and any person who controls the underwriter and
each of their successors from and against, and will reimburse the Company and
such officer, director, underwriter or controlling person with respect to, any
and all claims, actions, demands, losses, damages, liabilities, costs or
expenses to which the Company or such officer, director, underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such claims, actions, demands, losses, damages, liabilities, costs or
expenses arise out of or are based upon any untrue statement of any material
fact contained in such Registration Statement, any prospectus contained therein
or any amendment or supplement thereto, or arise out of or are based upon the
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 are made, not misleading; provided that such Holder will be liable in any
such case to the extent, but only to the extent, that any such claim, action,
demand, loss, damage, liability, cost or expense arises out of or is based upon
an untrue statement or omission made in reliance upon and in strict conformity
with written information furnished by such Holder specifically for use in the
preparation thereof. The liability of each Holder under this Section shall be
limited to the proportion of any such claim, action, demand, loss, damage,
liability, cost or expense which is equal to the proportion that the public
offering price of the Registrable Securities sold by such Holder under such
registration statement bears to the total offering price of all securities sold
thereunder, but not, in any event, to exceed the proceeds received by such
Holder from the sale of Registrable Securities covered by such Registration
Statement. This indemnity shall survive the transfer of such securities by such
Holder and the underwriter.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by a party to
be indemnified pursuant to the provisions of Section 5(a) or 5(b) (an
"indemnified party") of notice of the commencement of any action involving the
subject matter of the foregoing indemnity provisions, such indemnified party
will, if a claim thereof is to be made against the indemnifying party pursuant
to the provisions of Section 5(a) or 5(b), notify the indemnifying party of the
commencement thereof, but the omission to so notify the indemnifying party will
not relieve it
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from any liability which it may have to an indemnified party otherwise than
under this Section and shall not relieve the indemnifying party from liability
under this Section unless, and to the extent, such indemnifying party is
prejudiced by such omission. In case such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall have the right to participate in, and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party, and after the notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party pursuant to the
provisions of this Section 5(a) and 5(b) for any legal expense subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation; provided that, if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it that are different from or additional to
those available to the indemnifying party or if the interests of the indemnified
party reasonably may be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to participate
in the defense of such action, with the expenses and fees of such separate
counsel and other expenses related to such participation to be reimbursed by the
indemnifying party as incurred. No indemnifying party shall be liable to an
indemnified party for any settlement of any action or claim without the consent
of the indemnifying party and no indemnifying party may unreasonably withhold
its consent to any such settlement. No indemnifying party will, except with the
consent of the indemnified party, consent to entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability and equitable claims in respect to such claim or litigation.
(d) CONTRIBUTION. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) any Holder exercising rights under this Agreement or any underwriter
makes a claim for indemnification pursuant to this Section but it is judicially
determined (by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of the last
right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section provides for indemnification in such
case, or (ii) contribution under the Securities Act may be required on the part
of any such Holder or underwriter, as the case may be, in circumstances for
which indemnification is provided under this Section 5, then, and in each such
case, the Company on the one hand and such Holder or underwriter, as the case
may be, on the other, will contribute to the aggregate claims, actions, demands,
losses, damages, liabilities, costs or expenses to which they may be subject
(after contribution from others) in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and of the Holder of
Registrable Securities or the underwriter, as the case may be, on the other, in
connection with the statements or omissions that resulted in such claims,
actions, demands, losses, damages, liabilities, costs or expenses, as well as
any other relevant equitable considerations. The relative fault of the Company
on the one hand and of the Holder of Registrable Securities or the underwriter,
as the case may be, on the other, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission or alleged
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omission to state a material fact relates to information supplied by the Company
on the one hand or by the Holder of Registrable Securities or the underwriter,
as the case may be, on the other, and each party's relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission; provided that, in any such case, (A) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation and (B) no such Holder or
underwriter will be required to contribute any amount in excess of the proceeds
received by such Holder or underwriter, as the case may be, from the sales of
Registrable Securities covered by the Registration Statement.
(e) OTHER INDEMNIFICATION. Notwithstanding the foregoing, to the
extent that the provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten public
offering are in conflict with the foregoing provisions, the provisions in the
underwriting agreement shall control.
6. REPORTING REQUIREMENTS UNDER SECURITIES EXCHANGE ACT OF 1934.
(a) EXCHANGE ACT REPORTING. The Company shall keep effective its
registration under Section 12 of the Securities Exchange Act of 1934 (the
"Exchange Act"), and shall timely file such information, documents and reports
as the Commission may require or prescribe under the Exchange Act. The Company
shall timely file such information, documents and reports as the Commission may
require or prescribe under Section 13 of the Exchange Act.
(b) FURNISHING INFORMATION TO HOLDERS. The Company shall
forthwith upon request furnish any Holder of Registrable Securities (a) a
written statement by the Company that it has complied with such reporting
requirements, (b) a copy of the most recent Form 10-K or Form 10-Q filed by the
Company and a copy of the most recent annual or quarterly report of the Company
distributed to its shareholders, and (c) such other reports and documents filed
by the Company with the Commission as such Holder may reasonably request in
availing itself of an exemption for the sale of Registrable Securities without
registration under the Securities Act.
(c) RULE 144 AND FORM S-3. The Company acknowledges and agrees
that the purposes of the requirements contained in this Section 6 are (i) to
enable any such Holder to comply with the current public information requirement
contained in paragraph (c) of Rule 144 under the Securities Act should such
Holder ever wish to dispose of any of the securities of the Company acquired by
it without registration under the Securities Act in reliance upon Rule 144 (or
any other similar or successor exemptive provision), and (ii) to qualify the
Company for the use of registration statements on Form S-3. In addition, the
Company shall take such other measures and file such other information,
documents and reports as shall hereafter be required by the Commission as a
condition to the availability of Rule 144 under the Securities Act (or any
similar or successor exemptive provision hereafter in effect) and the use of
Form S-3. The Company also covenants to use its best efforts, to the extent that
it is reasonably within its power to do so, to qualify for the use of Form S-3.
From and after the effective date of the first Registration Statement filed by
the Company, the Company agrees to use its best efforts to facilitate and
expedite transfers of Registrable Securities pursuant to Rule 144 under the
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Securities Act (or any similar or successor exemptive provision hereafter in
effect), which efforts shall include timely instructions to its transfer agent
to expedite such transfers of Registrable Securities.
7. SHAREHOLDER INFORMATION. The Company may require each Holder
of Registrable Securities as to which any registration is to be effected
pursuant to this Agreement to furnish the Company in a timely manner such
information with respect to such Holder and the distribution of such Registrable
Securities as the Company may from time to time reasonably request in writing
and as shall be required by law or by the Commission.
8. SPECIFIC ENFORCEMENT. All of the parties acknowledge that the
parties will be irreparably damaged in the event that this Agreement is not
specifically enforced. Upon a breach or threatened breach of the terms,
covenants or conditions of this Agreement by any of the parties hereto, the
other parties shall, in addition to all other remedies, be entitled to a
temporary or permanent injunction, without showing any actual damage, or a
decree for specific performance, in accordance with the provisions of this
Agreement.
9. DESCRIPTIVE HEADINGS; DEFINITIONS; CERTAIN INTERPRETATIONS.
(a) Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this
Agreement.
(b) As used in this Agreement, the following terms shall have the
following respective meanings:
"Affiliate" shall mean (a) any person or entity directly or
indirectly controlling, controlled by or under common control with another
person or entity; (b) any person or entity owning or controlling 10% or more of
the outstanding voting securities of such other person or entity; (c) any
partner, officer, director, employee or shareholder of such entity or any
parent, spouse, child, brother, sister or other relative with a relationship (by
blood, marriage or adoption) not more remote than first cousin of any of the
foregoing; or (d) any liquidating trust, trustee or other similar person or
entity for any such person or entity.
"Holder" shall mean (a) the Investor and (b) any other person to
which the rights of registration under this Agreement have been transferred or
assigned by the Investor or its transferees.
"Registrable Securities" shall mean (a) shares of Common Stock
(including shares issuable or issued upon the exercise of any Warrants or the
exercise of any other exchange, conversion or similar right), (b) any securities
issued in respect of any such shares by way of a stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger or
consolidation or reorganization and (c) Warrants; provided that, such securities
shall cease to be Registrable Securities when such securities have been sold to
or through a broker or dealer or underwriter in a public distribution or a
public securities transaction.
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(c) Except as otherwise expressly provided in this Agreement, the
following rules of interpretation apply to this Agreement: (i) the singular
includes the plural and the plural includes the singular; (ii) "or" or "any" are
not exclusive and "include" and "including" are not limiting; (iii) a reference
to any agreement or other contract includes permitted supplements and
amendments; (iv) a reference to a law includes any amendment or modification to
such law and any rules or regulations issued thereunder; (v) a reference to a
person includes its successors and assigns; and (vi) a reference in this
Agreement to a Section is to the Section of this Agreement.
10. NOTICES. All notices, requests and other communications to
any party hereunder shall be in writing and sufficient if delivered personally
or sent by telecopy (with confirmation of receipt) or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to the Company: Industrial Imaging Corporation
One Xxxxxx Research Center
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telecopy: (000) 000-0000
With a copy to: Mintz Xxxxx Xxxx Xxxxxx Xxxxxxx and Xxxxx PC
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telecopy: (000) 000-0000
If to the Investor: Imprimis Investors LLC
c/o Wexford Management LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopy: (000) 000-0000
With a copy to: Xxxxxx, Xxxxx & Xxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
or to such other address or telecopy number as the party to whom notice is to be
given may have furnished to the other party in writing in accordance herewith.
Each such notice, request or communication shall be effective when received or,
if given by mail, when delivered at the address specified in this Section or on
the fifth business day following the date on which such communication is posted,
whichever occurs first.
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11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
12. BENEFITS OF AGREEMENT. All of the terms and provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. This Agreement is for the
sole benefit of the parties hereto and not for the benefit of any third party.
13. ENFORCEABILITY. It is the desire and intent of the parties
hereto that the provisions of this Agreement shall be enforced to the fullest
extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. Accordingly, if any particular
provision of this Agreement shall be adjudicated to be invalid or unenforceable,
such provision shall be deemed amended to delete therefrom the portion thus
adjudicated to be invalid or unenforceable, such deletion to apply only with
respect to the operation of such provision in the particular jurisdiction in
which such adjudication is made.
14. 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 OR CONFLICT OF LAWS PROVISIONS).
15. CONSENT TO JURISDICTION. EACH OF THE COMPANY AND THE HOLDER
HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF ANY
FEDERAL AND STATE COURT IN NEW YORK SITTING IN NEW YORK CITY AND IRREVOCABLY
AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE LITIGATED EXCLUSIVELY
IN SUCH COURTS. EACH OF THE COMPANY AND THE HOLDER AGREES NOT TO COMMENCE ANY
LEGAL PROCEEDING RELATED HERETO OR THERETO EXCEPT IN SUCH COURT. EACH OF THE
COMPANY AND THE HOLDER IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING IN ANY SUCH
COURT AND HEREBY FURTHER IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT
TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION, SUIT OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
16. WAIVERS; AMENDMENTS. No waiver of any right hereunder by any
party shall operate as a waiver of any other right, or of the same right with
respect to any subsequent occasion for its exercise, or of any right to damages.
No waiver by any party of any breach of this Agreement shall be held to
constitute a waiver of any other breach or a continuation of the same breach.
All remedies provided by this Agreement are in addition to all other remedies
provided by law. This Agreement may not be amended except by a writing executed
by the Company and by Holders holding at least 51% of the Registrable
Securities; provided that the
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provisions of this Section 16 may not be amended unless such amendment is
executed by each Holder.
17. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns. The Investor's rights are assignable to any assignee or
transferee of all or a portion of the Registrable Securities held by the
Investor. In addition, and whether or not any express assignment shall have been
made, the provisions of this Agreement which are for the benefit of the parties
hereto other than the Company shall also be for the benefit of and enforceable
by any subsequent Holder of any Registrable Securities, subject to the
provisions contained herein.
18. TERMINATION. This Agreement shall terminate upon the earliest
to occur of the following events:
(a) termination by mutual written agreement of the Investor and
the Company;
(b) all Registrable Securities have been sold to or through a
broker or dealer or underwriter in a public distribution or public securities
transaction; or
(c) the fourth anniversary of the date hereof.
19. ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the parties with respect to the transactions contemplated by
this Agreement and supersedes all prior agreements or understandings among the
parties.
20. CONFIDENTIALITY. The Investor and any subsequent Holder
agrees that it shall keep confidential all information disclosed to it pursuant
to Section 3(xiii), unless such information was already in the Purchaser's
possession or known to the Purchaser prior to being disclosed or provided to the
Purchaser, until the earliest of such time as (a) disclosure may be required by
law, (b) three years from the date of receipt of such information, (c) such
information becomes publicly available through no action or fault of the
Purchaser, and (d) such information was or is obtained by the Purchaser from a
third party other than where such information was obtained in breach of contract
or in violation of law.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first above written.
INDUSTRIAL IMAGING CORPORATION
By:
-------------------------------------
Name:
Title:
IMPRIMIS INVESTORS LLC
By:
-------------------------------------
Name:
Title:
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