Exhibit 10.3
Registration Rights Agreement
Registration Rights Agreement dated October 28, 1996 by and between Esquire
Communications Ltd., a Delaware corporation (the "Company"), and M & M Reporting
Referral Service, Inc. (the "Investor").
W I T N E S S E T H :
WHEREAS, the Company desires to grant to the Investor certain registration
rights with respect to Registrable Securities (as hereinafter defined) owned by
the Investor;
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and for other good and valuable consideration set forth herein, the parties
hereto agree as follows:
1. CERTAIN DEFINITIONS. For purposes of this Agreement, the following terms
shall have the respective meanings set forth below:
"Commission" means the Securities and Exchange Commission.
"Common Stock" means shares of common stock, par value $.01 per share,
of the Company.
"Costs and Expenses" means all of the costs and expenses relating to the
Registration Statement involved, including, but not limited to, blue-sky
expenses, printing expenses, Commission filing
fees, fees and disbursements of one counsel for the Selling Investors and fees
and disbursements of counsel to the Company; provided, however, that Costs and
Expenses shall not include underwriting discounts and commissions and
reimbursable underwriters' expenses, all of which shall be borne pro rata by the
Selling Investors.
"Registrable Securities" means (a)
any shares of Common Stock acquired by the Investor pursuant to the provisions
of the Asset Purchase Agreement dated May 22, 1996, as amended, by and among the
Company, the Investor, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and (b)
any securities issued as a dividend on or other distribution with respect to, or
in exchange for or in replacement of, the shares of Common Stock referred to in
subsection (a) above including, without limitation, stock splits,
reclassifications, recapitalizations or similar events; provided, however, that
a security is not a Registrable Security after (i) it has been effectively
registered under the Securities Act and transferred pursuant to such
registration or (ii) it is disposed of, or, at the time of the proposed
registration, is capable of being disposed of, pursuant to Rule 144 (or any
similar provisions then in force) under the Securities Act without limitation as
to volume.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal law then in force.
"Selling Investors" means holders whose Registrable Securities are included
in a registration statement filed by the Company pursuant to this Agreement.
2. REGISTRATION RIGHTS.
2.1. REQUIRED REGISTRATION. (a) At
any time after one year from the date hereof and prior to five years from the
date hereof, the Investor may give written notice to the Company of the proposed
disposition of Registrable Securities, specifying the number of Registrable
Securities so to be sold or disposed of and requesting that the Company effect
the registration under the Securities Act of such Registrable Securities. The
Company shall only be required to effect such registration if the Registrable
Securities for which registration has been requested shall constitute at least
25% of the Registrable Securities originally issued, as adjusted for stock
splits, dividends, reclassifications, recapitalizations or other similar events.
The Company shall use its best efforts to cause an appropriate registration
statement (the "Registration Statement") covering such Registrable Securities to
be filed with the Commission within 30 days of receiving such notice from the
Investor and to become effective as soon as reasonably practicable and to remain
effective until the completion of the distribution of the Registrable Securities
to be offered or sold. The Company shall not be obligated to file more than one
Registration Statement pursuant to the provisions of this Section 2.1,
provided such Registration Statement is declared effective by the Commission and
remains effective until the earlier of the expiration of 120 days or the
consummation of the sale of all Registrable Securities thereunder. The Company
shall not be required to keep a Registration Statement effective for a period of
more than 120 days. The Company's registration obligations under this Section
2.1 shall be deemed satisfied (i) when a Registration Statement shall have
become effective and there has been a complete distribution of the Registrable
Securities to be offered or sold, (ii) upon the withdrawal by the Investor of
the request for such Registration Statement after such Registration Statement
has been filed with the Commission or (iii) the expiration of 120 days from
effectiveness of such Registration Statement during which period it remained
fully effective. The Company shall bear the Costs and Expenses of such
Registration Statement. Notwithstanding anything to the contrary contained
herein, the Company may defer compliance with a request until 120 days after the
effective date of a registration statement filed by the Company in which holders
of Registrable Securities shall have been entitled to join pursuant to this
Section 2.1 or Section 2.3 without restriction as to number of shares.
(b) The Company may include in the Registration Statement under Section
2.1(a) any other shares of its Common Stock (including issued and outstanding
shares of Common Stock as to which the holders thereof have contracted with the
Company for "piggyback" registration rights) so long as the inclusion in such
Registration Statement of such shares will not, in the opinion of the managing
underwriter, if the Registration Statement covers an underwritten offering,
interfere with the successful marketing in accordance with the intended method
of sale or other disposition of all the Registrable Securities sought to be
registered by the holder or holders pursuant to Section 2.1(a). If it is
determined as provided above that there will be such interference, the other
shares of Common Stock sought to be included shall be excluded to the extent
deemed appropriate by the managing underwriter.
(c) Notwithstanding the foregoing, if the Company shall furnish to the
holder of Registrable Securities requesting a registration statement pursuant to
Section 2.1(a), a certificate signed by an officer of the Company stating that
(i) the Company is conducting or about to conduct an offering of its securities
and has been advised by its investment banker in writing that such offering will
be adversely affected by the registration so demanded, accompanied by a copy of
such written advice from such investment banker, or (ii) the Company is engaged
in a financing, merger, acquisition of assets, sale of assets, recapitalization
or other similar corporate action which would relate to or involve more than 10%
of the Company's assets or revenues and in the good faith judgment of the Board
of Directors it would seriously impair the ability of the Company to effect the
registration or would be seriously detrimental to the Company and its
stockholders if such transaction were to be disclosed at such time, and it is
therefore essential to defer the filing of such registration statement, the
Company shall have the right to defer such filing for a period of not more than
90 days after receipt of the request for registration; provided, however, that
the Company may not utilize this deferral right more than once in any twelve
month period.
(d) If the Investor desires to sell Registrable Securities in an
underwritten offering, the underwriter will be selected by the Investor, subject
to the reasonable approval of the Company.
2.2. PROCEDURE FOR REGISTRATION. In connection with the filing of a
Registration Statement pursuant to Section 2.1 or 2.3 hereof, and in
supplementation and not in limitation of the provisions hereof, the Company
shall:
(a) Notify the Selling Investors as to the filing of the Registration
Statement and of all amendments or supplements thereto filed prior to the
effective date of such Registration Statement;
(b) Notify the Selling Investors, promptly after the Company shall receive
notice thereof, of the time when such Registration Statement became effective or
when any amendment or supplement to any prospectus forming a part of such
Registration Statement has been filed;
(c) Notify the Selling Investors promptly of any request by the Commission
for the amending or supplementing of such Registration Statement or prospectus
or for additional information;
(d) Prepare and promptly file with the Commission, and promptly notify the
Selling Investors of the occurrence of any event requiring the preparation of,
any amendments or supplements to such Registration Statement or prospectus as
may be necessary to correct any statements or omissions if, at any time when a
prospectus relating to the Registrable Securities is required to be delivered
under the Securities Act, any event with respect to the Company shall have
occurred as a result of which any such prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading;
and, in addition, prepare and file with the Commission, promptly upon the
Selling Investors' written request, any amendments or supplements to such
Registration Statement or prospectus which may be reasonably necessary or
advisable in connection with the distribution of the Registrable Securities; in
the event the Company shall be obligated to give such notice and does not
continuously maintain the effectiveness of the Registration Statement, the
Company shall extend the period during which such Registration Statement shall
be maintained effective as provided in Section 2.1(a) hereof by the number of
days from and including the date of the occurrence giving rise to the obligation
to give such notice of supplemented or amended prospectus.
(e) Prepare, promptly upon request of the Selling Investors or any
underwriters for the Selling Investors, such amendment or amendments to such
Registration Statement and such prospectus or prospectuses as may be reasonably
necessary to permit compliance with the requirements of Section 10(a)(3) of the
Securities Act;
(f) Advise the Selling Investors immediately after the Company shall
receive notice or obtain knowledge of the issuance of any stop order by the
Commission suspending the effectiveness of any such Registration Statement or
amendment thereto or of the initiation or threatening of any proceeding for that
purpose, and promptly use its best efforts to prevent the issuance of any stop
order or obtain its withdrawal promptly if such stop order should be issued;
(g) Use its best efforts to register or qualify, contemporaneously with
federal registration, the Registrable Securities for sale under the securities
or blue-sky laws of such states and jurisdictions within the United States as
shall be reasonably requested by the Selling Investors; provided, that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business, to become subject to taxation or to file a consent to
service of process generally in any of the aforesaid states or jurisdictions
unless the Company is already subject to such service in such jurisdiction and
except as may be required by the Securities Act;
(h) make available for inspection by any Selling Investor and any
underwriter participating in any disposition pursuant to such Registration
Statement, counsel for the Selling Investors and any attorney, accountant or
other agent retained by any such Selling Investor or underwriter (collectively,
the "Inspectors") all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees, and
the independent public accountants of the Company, to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement, provided, however, that Records the Company determines, in good
faith, to be confidential and which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or omission in the
Registration Statement, or (ii) the release of such Records is ordered pursuant
to a subpoena or other order from a court of competent jurisdiction, provided
that any Selling Investor and any Inspector agrees that it shall, upon learning
that disclosure of such Records is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company (at the Company's expense) to
undertake appropriate action to prevent disclosure of the Records deemed
confidential;
(i) keep each Selling Investor advised in writing as to the initiation and
progress of any registration hereunder;
(j) furnish, at the request of any Selling Investors on the date that such
Registrable Securities are delivered to the underwriters for the sale pursuant
to such registration or, if such Registrable Securities are not being sold
through underwriters, on the date that the Registration Statement with respect
to such Registrable Securities becomes effective, (i) an opinion, dated such
date, of the independent counsel representing the Company for the purposes of
such registration, addressed to the underwriters, if any, and to the Selling
Investors making such request, covering such legal matters with respect to the
registration in respect of which such opinion is being given as the Selling
Investors requesting such opinion may reasonably request; provided such matters
are of a nature that legal counsel are normally required to opine upon in
connection with such a registration or offering, and (ii) a letter dated such
date, from the independent certified public accountants of the Company,
addressed to the underwriters, if any, and to the Selling Investors making such
request, stating that they are independent certified public accountants within
the meaning of the Securities Act and that in the opinion of such accountants,
the financial statements and other financial data of the Company included in the
Registration Statement or prospectus, or any amendment or supplement thereto,
comply as to form in all material respects with the applicable accounting
requirements of the Securities Act. Such letter from the independent certified
public accountants shall additionally cover such other financial matters with
respect to the registration in respect of which such letter is being given as
the Selling Investors requesting such letter may reasonably request; provided
such matters are of a nature that accountants are normally required to opine
upon in connection with such registration or which shall be necessary to
effectuate such registration or offering.
(k) Furnish the Selling Investors, as soon as available, copies of any
Registration Statement and each preliminary or final prospectus, or supplement
or amendment required to be prepared pursuant hereto and such other documents as
such Selling Investor may reasonably request in order to facilitate the
disposition of the Registrable Securities, all in such quantities as the Selling
Investors may, from time to time, reasonably request; and
(l) If requested by the Selling Investors, enter into and perform
agreements (including an underwriting agreement) containing customary provisions
and reflecting the foregoing and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of the Registrable
Securities.
2.3. INCIDENTAL REGISTRATION. If at
any time prior to five years from the date hereof, the Company shall propose the
filing of a Registration Statement under the Securities Act of any securities of
the Company, otherwise than pursuant to Section 2.1 hereof and other than a
registration statement on Forms S-8 or S-4 or any equivalent form then in
effect, then the Company shall give the holders of Registrable Securities not
less than 15 days written notice prior to the proposed date of such proposed
registration and shall include in any Registration Statement relating to such
securities all or a portion of the Registrable Securities then owned by such
holders, which such holders shall request (such holders to be considered Selling
Investors), by notice given by such holders to the Company within 15 days after
the receipt of such notice by the Company, to be so included with identical
terms and conditions. In the event of the inclusion of Registrable Securities
pursuant to this Section 2.3, the Company shall bear the Costs and Expenses of
such registration. In the event the registration is in connection with a
secondary offering on behalf of holders of Purchase Options dated May 18, 1993
to purchase an aggregate of 125,000 shares of Common Stock and 125,000 warrants
issued in connection with the Company's initial public offering (the "Purchase
Options"), then the prior written consent of the "Majority Holders of the
Registrable Securities" (as defined in the Purchase Options) shall be required
for inclusion of any Registrable Securities. In the event the distribution of
securities of the Company covered by a Registration Statement referred to in
this Section 2.3 is to be underwritten, then the Company's obligation to include
Registrable Securities in such Registration Statement shall be subject, at the
option of the Company, to the following further conditions:
(a) The distribution for the account of the Selling Investors shall be
underwritten by the same underwriters who are underwriting the distribution of
the securities for the account of the Company and/or any other persons whose
securities are covered by such Registration Statement, and the Selling Investors
will enter into an agreement with such underwriters containing customary
provisions no less that those pertaining to the Company and other selling
holders;
(b) If the underwriting agreement entered into with the aforesaid
underwriters contains restrictions upon the sale of securities of the Company,
other than the securities which are to be included in the proposed distribution,
for a period not exceeding 180 days from the effective date of the Registration
Statement, then such restrictions will be binding upon the Selling Investors
and, if requested by the Company, the Selling Investors will enter into a
written agreement to that effect and containing no more restrictive terms or
conditions than those pertaining to the Company and other selling holders; and
(c) (i) If the registration is an underwritten primary registration on
behalf of the Company and the managing underwriters of such offering deliver a
written opinion to the holders of such Registrable Securities that the aggregate
amount of securities of the Company which the holders of Registrable Securities
and the Company propose to include in such Registration Statement would
adversely affect the marketing of the securities or the proceeds of the offering
payable to the Company, the Company will include in such registration, first the
securities which the Company proposes to sell, second, any securities the
Company is required to include pursuant to the Purchase Options, third, any
securities the Company is required to include pursuant to registration rights
granted by the Company prior to the date hereof, fourth, Registrable Securities
of the holders of Registrable Securities, and fifth, securities held by any
holders of other piggyback registration rights, if any, which can be included
herein without, in the good faith judgment of the managing underwriters of such
offering, materially and adversely affecting the marketing of the securities or
the proceeds of the offering payable to the Company, pro rata among the holders
thereof, in each case on the basis of the relative number of securities of the
Company requested to be included in such registration by such holders, and
(ii) if the registration is in connection with an underwritten
secondary offering on behalf of any of the other security holders of the
Company and the managing underwriters of such offering deliver a written opinion
to the holders of such Registrable Securities that the aggregate amount of
securities which the holders of Registrable Securities and such security holders
propose to include in such registration would adversely affect the marketing of
the securities or the proceeds of the offering payable to such other security
holders of the Company, the Company will include in such registration, first,
the securities to be sold for the account of any other holders entitled to
demand registration, second, any securities required to be registered pursuant
to the Purchase Options, third, any securities the Company is required to
include pursuant to registration rights granted by the Company prior to the date
hereof, fourth, the Registrable Securities of the holders of Registrable
Securities, and fifth, securities held by other holders electing to include
securities in such offering which can be included in such offering without, in
the written opinion of the managing underwriters of such offering, adversely
affecting the marketing of the securities or the proceeds of the offering
payable to such other security holders, pro rata among the holders thereof, in
each case on the basis of the relative number of securities of the Company
requested to be included in such registration by such holders. Registrable
Securities proposed to be registered and sold pursuant to an underwritten
offering for the account of the holders of Registrable Securities shall be sold
to prospective underwriters selected or approved by the Company and on the terms
and subject to the conditions of one or more underwriting agreements negotiated
between the Company, the holders of Registrable Securities and any other holders
demanding registration and the prospective underwriters. The Company may
withdraw any Registration Statement initiated by the Company pursuant to this
Section 2.3 at any time before it becomes effective, or postpone the offering of
securities, without obligation or liability to the holders of Registrable
Securities.
2.4. INDEMNIFICATION BY THE COMPANY. The Company will indemnify
and hold harmless each Selling Investor, any underwriter (as defined in the
Securities Act) for such Selling Investor, each officer and director of such
Selling Investor, and each person, if any, who
controls such Selling Investor or such underwriter within the meaning of the
Securities Act (but, in the case of an underwriter or a controlling person, only
if such underwriter or controlling person indemnifies the persons mentioned in
subdivision (b) of Section 2.5 hereof in the manner set forth therein), against
any losses, claims, damages or liabilities, joint or several, to which such
Selling Investor or any such underwriter, officer, director or controlling
person becomes subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) (i) are
caused by any untrue statement or alleged untrue statement of any material fact
contained in any preliminary prospectus (if used prior to the effective date of
the Registration Statement), or contained, on the effective date thereof, in any
Registration Statement under which Registrable Securities were registered under
the Securities Act, the prospectus contained therein, or any amendment or
supplement thereto, or (ii) arising out of or based upon 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 or (iii) arising out of
any violation by the Company of any rule or regulation promulgated under the
Securities Act applicable to the Company and relating to any action or inaction
required of the Company in connection with such registration; and the Company
will reimburse such Selling Investor and any such underwriter, officer, director
or controlling person for any legal or other expenses reasonably incurred by
such Selling Investor, or any such partner, officer, director, underwriter or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable to any such persons in any such case to the extent that any such loss,
claim, damage, liability or action arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information furnished to the Company in
writing by such person expressly for inclusion in any of the foregoing
documents.
2.5. INDEMNIFICATION BY SELLING INVESTORS.
Each Selling Investor shall:
(a) Furnish in writing all information to the Company
concerning itself and its holdings of securities of the Company as shall be
required in connection with the preparation and filing of any Registration
Statement covering any Registrable Securities; and
(b) Indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed a Registration Statement,
each person, if any, who controls the Company within the meaning of the
Securities Act and any underwriter (as defined in the Securities Act) for the
Company, against any losses, claims, damages or liabilities to which the Company
or any such director, officer, controlling person or underwriter may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) are caused by any untrue
or alleged untrue statement of any material fact contained in any preliminary
prospectus (if used prior to the effective date of the Registration Statement)
or contained on the effective date thereof, in any Registration Statement under
which Registrable Securities were registered under the Securities Act, the
prospectus contained therein, or any amendment or supplement thereto, or arising
out of or based upon 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; in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by such Selling Investor expressly for inclusion in
any of the foregoing documents, and such Selling Investor shall reimburse the
Company and any such underwriter, officer, director or controlling person for
any legal or other expenses reasonably incurred by the Company or any such
director, officer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action.
2.6. CONTRIBUTION. In order to
provide for just and equitable contribution to joint liability under the
Securities Act in any case in which either (a) any Selling Investor or other
person or entity entitled to indemnification under this Agreement, makes a claim
for indemnification pursuant to Section 2.4 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 Section 2.4 provides for indemnification in such case, or (b) contribution
under the Securities Act may be required on the part of any such Selling
Investor or other person in circumstances for which indemnification is provided
under Section 2.4; then, and in each such case, the Company and such holder will
contribute to the aggregate losses, claims, damages or liabilities to which they
may be subject (after contribution from others) in such proportion so that such
Selling Investor or other person is responsible for the portion represented by
the percentage that the public offering price of its Registrable Securities
offered by the Registration Statement bears to the public offering price of all
securities offered in such Registration Statement, and the Company is
responsible for the remaining portion; provided, however, that, in any such
case, (i) no such Selling Investor or other person will be required to
contribute any amount in excess of the public offering price of all such
Registrable Securities offered by it pursuant to such Registration Statement;
and (ii) no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 12(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
2.7. NOTIFICATION BY SELLING INVESTORS. Each Selling Investor
and each other person indemnified pursuant to Section 2.4 hereof will, in
the event it receives notice of the commencement of any action against it which
is based upon an alleged act or omission which, if proven, would result in the
Company's having to indemnify it pursuant to Section 2.4 hereof, promptly notify
the Company, in writing, of the commencement of such action and permit the
Company, if the Company so notifies such Selling Investor within 10 days after
receipt by the Company of notice of the commencement of the action, to
participate in and to assume the defense of such action with counsel approved by
the Investor (which approval shall not be unreasonably withheld) or such other
indemnified person, as the case may be; provided, however, that such Selling
Investor shall be entitled to retain its own counsel at the Company's expense if
it believes (i) it has defenses available to it which are not available to the
Company or (ii) the Company fails to timely or actively assume or continue to
assume the defense or (iii) if such Selling Investor believes there exists a
potential for conflict of interest between the Company and such Selling
Investor. The omission to notify the Company promptly of the commencement of any
such action shall not relieve the Company of any liability to indemnify such
Selling Investor or such other indemnified person, as the case may be, under
Section 2.4 hereof, except to the extent the Company shall suffer any loss by
reason of such failure to give notice and shall not relieve the Company of any
other liabilities which it may have under this or any other agreement.
2.8. NOTIFICATION BY COMPANY. The Company agrees that, in the event
it receives notice of the commencement of any action against it which is
based upon an alleged act or omission which, if proven, would result in any
Selling Investor having to indemnify the Company pursuant to subdivision (b) of
Section 2.5 hereof, the Company will promptly notify such Selling Investor in
writing of the commencement of such action and permit such Selling Investor, if
such Selling Investor so notifies the Company within 10 days after receipt by it
of notice of the commencement of the action, to participate in and to assume the
defense of such action with counsel reasonably satisfactory to the Company. The
omission to notify such Selling Investor promptly of the commencement of any
such action will not relieve such Selling Investor of liability to indemnify the
Company under subdivision (b) of Section 2.5 hereof, except to the extent that
such Selling Investor suffers any loss by reason of such failure to give notice
and shall not relieve such Selling Investor of any other liabilities which it
may have under this or any other agreement.
2.9. RESTRICTIONS ON SALES. Each holder of Registrable Securities
severally agrees not to effect any public sale or distribution of
Registrable Securities which are not included in any Registration Statement
filed with respect to securities of the Company during the 10-day period prior
to, and during the 180-day period beginning on, the effective date of each such
Registration Statement.
2.10. REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view
to making available to the Investor the benefits of Rule 144 promulgated
under the Securities Act, as such rule may be amended from time to time, and any
other rule or regulation of the Commission that may at any time permit the
Investor to sell securities of the Company to the public without registration
(collectively "Exemption Rules") or pursuant to a registration statement, the
Company agrees to: (a) make and keep public information available, as those
terms are understood and defined in Commission Rule 144 or other Exemption
Rules; (b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
(c) take such further action to the extent required from
time to time to enable such Investor to sell Registrable Securities
pursuant to a Registration Statement or without registration under the
Securities Act within the limitation of the exemptions provided by Rule 144
under the Securities Act or other Exemption Rules; and
(d) furnish to the Investor, so long as the Investor owns any
Registrable Securities, forthwith upon request a written statement by the
Company that it has complied with the reporting requirements of Commission Rule
144, the Exemption Rules, the Securities Act and the Exchange Act, or that it
qualifies as a registrant whose securities may be resold pursuant to a
Registration Statement.
2.11. NON-ISSUER ELIGIBILITY. The Company will, at all
times during the term hereof, use its best efforts to have its Common Stock
eligible for non-issuer trading in the State of California.
3. MISCELLANEOUS.
3.1. NOTICES. All notices, requests, demands and other communications
provided for by this Agreement shall be in writing (including telecopier or
similar writing) and shall be deemed to have been given at the time five days
after being mailed in any general or branch office of the United States Postal
Service, enclosed in a registered or certified postpaid envelope, or received if
sent by Federal Express or other similar overnight courier service, addressed to
the address of the parties stated below or to such changed address as such party
may have fixed by notice or, if given by telecopier, when such telecopy is
transmitted and the appropriate confirmation is received.
If to the Company: Esquire Communications Ltd.
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Stroock & Stroock & ▇▇▇▇▇
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- copy to -
Palmieri, Tyler, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
3.2. SUCCESSORS AND ASSIGNS. This Agreement is solely for the benefit
of the parties and their respective successors and assigns, including subsequent
holders of Registrable Securities. Nothing herein shall be construed to provide
any rights to any other entity or individual.
3.3. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same document.
3.4. HEADINGS. Section headings are for convenience only and do not
control or affect the meaning or interpretation of any terms or provisions of
this Agreement.
3.5. GOVERNING LAW. This Agreement
shall be governed by and construed in accordance with the laws of the State of
New York governing contracts to be made and performed therein without giving
effect to principles of conflicts of law, and, with respect to any dispute
arising out of this Agreement, each party hereby consents to the exclusive
jurisdiction of the courts sitting in such State.
3.6. SEVERABILITY. Should any part, term, condition or provision hereof
or the application thereof be declared illegal, invalid or otherwise
unenforceable or in conflict with any other law by
a court of competent jurisdiction, the validity of the remaining parts, terms,
conditions or provisions of this Agreement shall not be affected thereby, and
the illegal, invalid or unenforceable portions of this Agreement shall be and
hereby are redrafted to conform with applicable law, while leaving the remaining
portions of this Agreement intact, except to the extent necessary to conform to
the redrafted portions hereof.
3.7. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding between the parties and supersedes all proposals,
commitments, writings, negotiations, discussions, agreements and understandings,
oral or written, of every kind and nature between them concerning the subject
matter hereof. This Agreement may not be amended or otherwise modified and no
provision hereof may be waived, without the consent of the holders of a majority
of the Registrable Securities. No discharge of the terms hereof shall be deemed
valid unless by full performance by the parties or by a writing signed by the
parties. A waiver by any party of any breach or violation of any provision of
this Agreement shall not be deemed or construed as a waiver of any other breach
or violation hereof. This Agreement is subject to, and limited by, the
provisions contained in the Purchase Options.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ESQUIRE COMMUNICATIONS LTD.
By:____________________________
M & M REPORTING REFERRAL SERVICE, INC.
By:_____________________________