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EXHIBIT 4.1
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into effective as of the _____ day of __________, 1997, by and among
Tapistron International, Inc., a Georgia corporation ("Company"), and
___________________, a shareholder of the Company acquiring shares pursuant to
an offering dated _____________, 1997 (the "Purchaser").
W I T N E S S E T H:
THAT FOR AND IN CONSIDERATION of the premises and the mutual promises
and covenants contained herein, and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which is hereby acknowledged by all of
the parties hereto, the parties, intending to be legally bound, agree as
follows:
WHEREAS, the Company has offered for sale a maximum of 16,666,666
shares of its common stock, $.0004 par value at a purchase price of $.15 per
share (the "Shares").
WHEREAS, the Purchaser has purchased the Shares pursuant to the
Offering by the Company.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises and the
mutual promises and covenants contained herein, and for other good and valuable
consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
1.1 Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Holder" or "Holders" shall mean the Purchaser which holds Registrable
Securities or Shares and any person holding Registrable Securities or Shares to
whom the rights under this Section 8 have been transferred in accordance with
Section 1.10 hereof.
"Initiating Holders" shall mean Purchaser or transferees of Purchaser
under Section 1.10 hereof who in the aggregate are Holders of not less than 30%
of the Registrable Securities in the event of a registration pursuant to
Section 1.2 hereof, or not less than 15% of the Registrable Securities in the
event of a registration pursuant to Section 1.4 hereof.
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"Registrable Securities" means all shares of Common Stock of the
Company which any Holder shall acquire at any time.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing with he Commission a registration
statement in compliance with the Securities Act, and the declaration or
ordering of the effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, except Selling
Expenses as defined below, incurred by the Company in complying with Sections
1.5, 1.6 and 1.7 hereof, including, without limitation, all registration,
qualification and filing fees, printing expenses, escrow fees, fees and
disbursements of counsel for the Company, blue sky fees and expenses, the
expense of any special audits incident to or required by any such registration
(but excluding the compensation of regular employees of the Company which shall
be paid in any event by the Company) and the reasonable fees and disbursements
of counsel for the Holders.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and, except as set forth in the definition of Registration
Expenses, all reasonable fees and disbursements of counsel for any Holder.
1.2 Requested Registration.
(a) Request for Registration. In case the Company shall receive from
Initiating Holders a written request that the Company effect a registration
under the Securities Act with respect to not less then 20% of the Registrable
Securities, the Company will:
(i) promptly give written notice of the proposed
registration, qualification or compliance to all other
Holders; and
(ii) as soon as practicable, use its best efforts to effect
such registration (including, without limitation, appropriate
qualification under applicable blue sky or other state
securities laws and appropriate compliance with applicable
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 Registrable
Securities as are specified
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in such request, together will all or such portion of the
Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request received
by the Company within 20 days after receipt of such written
notice from the Company;
Provided, however, that the Company shall not be obligated to
take any action to effect any such registration,
qualification or compliance pursuant to this Section 1.2:
(A) Prior to three months after the effective date of the
Company's first registered public offering of its stock; or
at any time prior to the third anniversary of this Agreement;
(B) If the Company has effected a registration pursuant to
this subparagraph 1.2(a) or subparagraph 1.4(a) within the
previous 12 month period, and such registration has been
declared or ordered effective;
(C) If the Company, within ten (10) days of the receipt of
the request of the Initiating Holders, gives notice of its
bona fide intention to effect the filing of a registration
statement with the Commission within ninety (90) days of
receipt of such request (other than with respect to a
registration statement relating to a Rule 145 transaction, an
offering solely to employees or any other registration which
is not appropriate for the registration of Registrable
Securities), in which case the Holders will have their rights
to join in such registration pursuant to Section 1.3 hereof;
or
(D) If the Company shall furnish to such Holders a
certificate signed by the President of the Company stating
that in the good faith judgment of the Board of Directors of
the Company it would be seriously detrimental to the Company
or its shareholders for a registration statement to be filed
in the near future, in which case the Company's obligation to
use its best efforts to register, qualify or comply under
this Section 1.2 shall be deferred for a period not to exceed
120 days from the date of receipt of the written request from
the Initiating Holders.
Subject to the foregoing clauses (A) through (D), the Company
shall file a registration statement covering the Registrable
Securities so requested to be registered as soon as
practicable after receipt of the request or requests of the
Initiating Holders.
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(b) Underwriting. In the event that a registration pursuant to this
Section 1.2 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 1.2(a)(i). In such event, the right of any Holder to registration
pursuant to this Section 1.2 shall be conditioned upon such Holder's
participation in the underwriting arrangements required by this Section 1.2,
and the inclusion of such Holder's Registrable Securities in the underwriting
to the extent requested shall be limited as provided herein.
The Company shall (together with all Holders proposing to distribute
their securities through such underwriting) enter into an underwriting
agreement in customary form with the managing underwriter(s) selected for such
underwriting by a majority in interest of the Initiating Holders, but subject
to the Company's reasonable approval. Notwithstanding any other provision of
this Section 1.2, if the managing underwriter(s) advise(s) the Initiating
Holders in writing that marketing factors require a limitation of the number of
shares to be underwritten, then the Company shall so advise all Holders
participating and the number of shares of Registrable Securities that may be
included in the registration and underwriting shall be allocated among all
Holders thereof in proportion, as nearly as practicable, to the respective
amounts of Registrable Securities held by such Holders at the time of filing
the registration statement. No Registrable Securities excluded from the
underwriting by reason of the underwriters' marketing limitation shall be
included in such registration. To facilitate the allocation of shares in
accordance with the above provisions, the Company or the underwriters may round
the number of shares allocated to any Holder to the nearest 100 shares.
If any Holder disapproves of the terms of the underwriting, such
person may elect to withdraw therefrom by written notice to the Company, the
managing underwriter and the Initiating Holders. The Registrable Securities so
withdrawn shall also be withdrawn from registration, and such Registrable
Securities shall not be transferred in a public distribution prior to 90 days
after the effective date of such registration, or such other shorter period of
time as the underwriters may require. The Company may include shares of Common
Stock held by shareholders other than Holders in a registration statement
pursuant to Section 1.2 or 1.3 if, and to the extent that, the amount of
Registrable Securities otherwise includible in such registration statement
would not thereby be diminished.
1.3 Company Registration.
(a) Notice of Registration. If at any time or from time to time the
Company shall determine to register any of its securities, either for its own
account or the account of a security holder or
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holders, other than (i) a registration relating solely to employee benefit
plans or (ii) a registration relating solely to a Commission Rule 145
transaction, or (iii) any other registration which is not appropriate for the
registration for the Registerable Securities for sale to the public, the
Company will:
(i) promptly give to each Holder written notice thereof;
and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and
in any underwriting involved therein, all the Registrable
Securities specified in written request or requests, made
within 20 days after receipt of such written notice from the
Company, by any Holder.
(b) Underwriting. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 1.3(a)(i). In such event the right of any Holder to
registration pursuant to Section 1.3 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such underwriting
shall (together with the Company and any other shareholders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Company. Notwithstanding any other provision of this Section 1.3, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter may limit the
Registrable Securities that may be included in the registration and
underwriting shall be allocated among all Holders in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement. Under no
circumstances, however, may the underwriter limit the amount of Registrable
Securities included in such registration and underwriting to less than an
amount equal to 20% of the amount of all the Company's securities included
within such registration and underwriting in the case of the Company's first
registered offering of securities, or to less than an amount equal to 35% of
the Company's securities included in any subsequent registration and
underwriting. To facilitate the allocation of shares in accordance with the
above provisions, the Company may round the number of shares allocated to any
Holder or other shareholder to the nearest 100 shares. If any Holder or other
shareholder disapproves of the terms of any such underwriting, he may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn
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from such underwriting shall be withdrawn from such registration, and sell not
be transferred in a public distribution prior to 90 days after the effective
date of the registration statement relating thereto, or such other shorter
period of time as the underwriters may require. The Company may include shares
of Common Stock held by shareholders other than Holders in a registration
statement pursuant to Section 1.2 or 1.3 if, and to the extent that, the amount
of Registrable Securities otherwise includible in such registration statement
would not thereby be diminished.
(c) Right to Terminate Registration. The Company shall have the right
to terminate or withdraw any registration initiated by it under this Section
1.3 prior to the effectiveness of such registration whether or not any Holder
has elected to include securities in such registration.
1.4 Registration on Form S-3.
(a) If any Initiating Holder requests that the Company file a
registration statement on Form S-3 (or any successor form to Form S-3) for a
public offering of the Registrable Securities the reasonably anticipated
aggregate price to the public of which, net of underwriting discounts and
commissions, would exceed $250,000, and the Company is then entitled to use
Form S-3 under applicable Commission rules to register the Registrable
Securities for such an offering, the Company shall use its best efforts to
cause such Registrable Securities to be registered for the offering on such
form and to cause such Registrable Securities to be qualified in such
jurisdictions as the Holder or Holders may reasonably request. The substantive
provisions of Section 1.2(b) shall be applicable to each registration initiated
under this Section 1.4.
(b) Notwithstanding the foregoing, the Company shall not be obligated
to take any action pursuant to this Section 1.7: (i) if the Company, within ten
(10) days of the receipt of the request of the Initiating Holders, gives notice
of its bona fide intention to effect the filing of a registration statement
with the Commission within ninety (90) days of receipt of such request (other
than with respect to a registration statement relating to a Rule 145
transaction, an offering solely to employees or any other registration which is
not appropriate for the registration of Registrable Securities); (ii) during
the period starting with the date sixty (60) days prior to the Company's
estimated date of filing of, and ending on the date six (6) months immediately
following, the effective date of any registration statement pertaining to
securities of the Company (other than a registration of securities in a Rule
145 transaction or with respect to an employee benefit plan), provided that the
Company is actively employing in good faith all reasonable efforts to cause
such registration statement to become effective; or (iii) if the Company shall
furnish to such Holder a certificate signed by the President
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of the Company stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the Company or its shareholders
for registration statements to be filed in the near future, then the Company's
obligation to use its best efforts to file a registration statement shall be
deferred for a period not to exceed 120 days from the receipt of the request to
file such registration by such Holder.
1.5 Limitations on Subsequent Registration Rights. From and after the
Closing Date, the Company shall not enter into any agreement granting any
holder or prospective holder of any securities of the Company registration
rights with respect to such securities unless (i) such new registration rights,
including standoff obligations, are either subordinate to or on a pari passu
basis with those rights of the Holders hereunder; and (ii) such new
registration rights, including standoff obligations, are approved by the
Holders of not less than two-thirds of the Registrable Securities.
1.6 Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to this
Agreement shall be borne by the Company; provided however that the Company
shall not be required to pay for expenses of any registration begun pursuant to
Section 1.2 or Section 1.4 hereof in which case the expenses shall be shared,
pro rata, by the shareholders participating in such registration. Further, the
Company shall not be required to pay any Selling Expenses.
1.7 Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 8,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Cause such registration to remain effective for one hundred eighty
(180) days or until the Holders have completed the distribution described in
the registration statement relating thereto, whichever occurs first;
(b) Enter into a written underwriting agreement in customary form and
substance reasonably satisfactory to the Company, the Holders and the managing
underwriter or underwriters of the public offering of such securities, if the
offering is to be underwritten in whole or in part;
(c) Furnish to the Holders participating in such registration and to
the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary prospectus, final prospectus
and such other documents
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as such underwriters may reasonably request in order to facilitate the public
offering of such securities;
(d) Use its best efforts to register or qualify the securities covered
by such registration statement under such state securities or blue sky laws of
such jurisdictions as such participating Holders may reasonably request within
ten (10) days prior to the original filing of such registration statement,
except that the Company shall not for any purpose be required to execute a
general consent to service of process or to qualify to do business as a foreign
corporation in any jurisdiction where it is not so qualified;
(e) Notify the Holders (or if they have appointed an attorney-in-fact,
such attorney-in-fact) 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 such Holders or their attorney-in-fact promptly of any
request by the Commission for the amending or supplementing of such
registration statement or prospectus or for additional information;
(g) For a period of one hundred eighty (180) days following the
effective date of such Registration Statement, prepare and file with the
Commission promptly upon the request of any such Holders, any amendments or
supplements to such registration statement or prospectus which, in the
reasonable opinion of counsel for such Holders, is required under the
Securities Act or the rules and regulations thereunder in connection with the
distribution of the Registrable Securities by such Holders;
(h) For a period of one hundred eighty (180) days following the
effective date of such Registration Statement, prepare and promptly file with
the Commission, and promptly notify such Holders or their attorney-in-fact 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 securities is required to be
delivered under the Securities Act, any event has occurred as the 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 in light of the
circumstances in which they were made;
(i) For a period of one hundred eighty (180) days following the
effective date of such Registration Statement, in case any such Holders or any
underwriter for any such Holders is required to
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deliver a prospectus at a time when the prospectus then in effect may no longer
be used under the Securities act, prepare promptly upon request such amendment
or amendments to such registration statement and such prospectuses as may be
necessary to permit compliance with the requirements of the Securities Act;
(j) Advise such Holders or their attorney-in-fact, promptly after it
shall receive notice or obtain knowledge thereof, of the issuance of any stop
order by the Commission suspending the effectiveness of such registration
statement or 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
to obtain its withdrawal if such stop order should be issued; and
(k) At the request of any such Holder, furnish on the effective date
of the registration statement and, if such registration includes an
underwritten public offering, at the closing provided for in the underwriting
agreement, an opinion, dated each such date, of the counsel representing the
Company for the purposes of such registration, addressed to the underwriters,
if any, and to the Holder or Holders making such request, covering such matters
with respect to the registration statement, the prospectus and each amendment
or supplement thereto, proceedings under state and federal securities laws,
other matters relating to the Company, the securities being registered and the
offer and sale of such securities as are customarily the subject of opinions of
issuer's counsel provided to underwriters in underwritten public offerings, and
(ii) to the extent the Company's accounting firm is willing to do so, a letter
dated each such date, from the independent certified public accountants of the
Company, addressed to the underwriters, if any, and to the Holder or Holders
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 the prospectus or any
amendment or supplement thereto comply in all material respects with the
applicable accounting requirements of the Securities Act, and additionally
covering such other financial matters, including information as to the period
ending not more than five (5) business days prior to the date of such letter
with respect to the registration statement and prospectus, as the underwriters
or such requesting Holder or HOlders may reasonably request.
1.8 Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall promptly furnish the Company such
information regarding such Holder or Holders, the Registrable Securities held
by them and the distribution proposed by such Holder or Holders as the Company
may request in writing and as shall be required in connection with any
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registration, qualification or compliance referred to in this Section 1.
1.9 Indemnification.
(a) The Company will indemnify each Holder, each of its officers,
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which
registration, qualification or compliance has been effected pursuant to this
Section 8, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading, or any violation by the Company of the Securities Act or
any rule or regulation promulgated under the Securities Act applicable to the
Company in connection with any such registration, qualification or compliance,
and the Company will reimburse each such Holder, each of its officers and
directors, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, provided that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based on any untrue
statement or omission or alleged untrue statement or omission, made in reliance
upon and in conformity with written information furnished to the Company by an
instrument duly executed by such Holder, controlling person or underwriter and
stated to be specifically for use therein.
(b) Each Holder will, if Registrable Securities held by such Holder
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other such Holder, each of its officers and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
against all claims, losses, damages and liabilities (or action in respect
thereof) arising out
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of or based on (i) any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to
make the statements therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company, such Holders, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder and
stated to be specifically for use therein; or (ii) any violation by such Holder
of the Securities Act or any rule or regulation promulgated under the
Securities Act applicable to Holder in connection with any such registration,
qualification or compliance. Notwithstanding the foregoing, the liability of
each Holder under this subsection (b) shall be limited to an amount equal to
the initial public offering price of the shares sold by such Holder, unless
such liability arises out of or is based on willful conduct by such Holder.
(c) Each party entitled to indemnification under this Section 1.9 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such claim
or any litigation resulting therefrom, provided that counsel for the
Indemnifying Part, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 8 unless the failure
to give such notice is materially prejudicial to an Indemnifying Party's
ability to defend such action and provided further, that the Indemnifying Party
shall not assume the defense for matters as to which there is a conflict of
interest or separate and different defenses. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include saw an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
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1.10 Transfer of Registration Rights. The rights to cause the Company
to register securities granted Purchaser under Sections 1.2, 1.3 and 1.4 may be
assigned to a transferee or assignee reasonably acceptable to the company in
connection with any transfer or assignment of Registrable Securities by
Purchaser provided that: (i) such transfer may otherwise be effected in
accordance with applicable securities laws, and (ii) such assignee or
transferee acquires at least 10% of the Registrable Securities. Notwithstanding
the foregoing, the rights to cause the Company to register securities may be
assigned to any constituent partner of Purchaser without compliance with item
(ii) above, provided written notice thereof is promptly given to the Company.
1.11 Standoff Agreement. Each Holder agrees, so long as such Holder
holds at least five percent (5%) of the Company's outstanding voting equity
securities, in connection with the initial public offering of the Company's
securities that, upon request of the Company or the underwriters managing an
underwritten offering, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
(other than those included in the registration) without the prior written
consent of the Company or such underwriters, as the case may be, for such
period of time (not to exceed one hundred eighty (180) days) from the effective
date of such registration as may be requested by the underwriters; provided,
that the officers and directors of the Company who own stock of the Company
also agree to such restrictions.
1.12 Notice of Proposed Transfers. The holder of each certificate
representing Restricted Securities, by acceptance thereof, agrees to comply in
all respects with the provisions of this Section 1.4. Prior to any proposed
sale, assignment, transfer or pledge of any Restricted Securities (other than
(i) transfers not involving a change in beneficial ownership or (ii)
transactions involving the distribution without consideration of Restricted
Securities by any of the Purchasers to any of its partners, or retired
partners, or to the estate of any of its partners or retired partners), unless
there is in effect a registration statement under the Securities Act covering
the proposed transfer, the holder thereof shall give written notice to the
Company of such holder's intention to effect such transfer, sale, assignment or
pledge. Each such notice shall describe the manner and circumstances of the
proposed transfer, sale, assignment or pledge in sufficient detail, and shall
be accompanied, at such holder's expense by either (i) an unqualified written
opinion of legal counsel who shall be, and whose legal opinion shall be,
reasonably satisfactory to the Company addressed to the Company, to the effect
that the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act, or (ii) a "no action" letter from the
Commission to the effect that the transfer of such securities without
registration will not result in
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a recommendation by the staff of the Commission that action be taken with
respect thereto, whereupon the holder of such Restricted Securities shall be
entitled to transfer such Restricted Securities in accordance with the terms of
the notice delivered by the holder to the Company. Each certificate evidencing
the Restricted Securities Transferred as above provided shall bear, except if
such transfer is made pursuant to Rule 144, the appropriate restrictive legend
set forth in Section 1.3 above, except that such certificate shall not bear
such restrictive legend if in the opinion of counsel for such holder and the
Company such legend is not required in order to establish compliance with any
provision of the Securities Act. Notwithstanding the foregoing, each Purchaser
agrees that it will not request that a transfer of the Restricted Securities be
made (or that the legend described in Section 1.3 be removed from the
certificate evidencing the Restricted Securities) solely in reliance on Rule
144(k) under the Securities Act until the Company has been subject to the
reporting requirements under the Exchange Act for a period of 90 days.
2.1 Miscellaneous.
(a) Prior Agreements. This Agreement shall supersede all
other understandings or agreements, written or oral, among the parties hereto
with respect to the subject matter hereof.
(b) Expenses. All fees, commissions and expenses incurred by
the Company in connection with the Offering or the negotiation of this
Agreement and the consummation of the transactions contemplated herein,
including the fees and expenses of counsel, shall be borne by Purchaser.
(c) Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and assigns.
(d) Amendment. This Agreement may be amended or modified only
by an instrument in writing signed by all of the parties hereto. The parties
may, by written agreement signed by the parties hereto, or in the case of a
waiver, by the parties waiving compliance, (i) terminate or extend the time for
the performance of any of the obligations or other acts of the parties hereto,
or (ii) waive compliance with or modify any of the provisions of this
Agreement. No modification of this Agreement or waiver of any provision hereof
or default hereunder shall affect the right of any party thereafter to enforce
any other provision or to exercise any right or remedy in the event of any
default, whether or not similar.
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(e) Governing Law. This Agreement and the legal relationships
among the parties hereto shall be governed by and construed in accordance with
the laws of the State of Georgia.
(f) Headings. The headings of the sections and subparagraphs
contained in this Agreement are for the convenience of reference only and do
not form a part hereof and in no way modify the meaning of such sections or
subparagraphs. Any number of counterparts of this Agreement may be signed and
delivered and each shall be considered an original and together shall
constitute one agreement. All information given by any party hereto to any
other party, unless otherwise publicly available, shall be considered
confidential and shall be used only for the purpose intended. Variations among
pronouns shall not be relied upon in the interpretation of this Agreement and
the singular number shall include the plural, and each gender shall include the
other or neuter, as the context may require.
(g) Notices. All notices, requests, demands or other
communications hereunder shall be in writing and shall be deemed to have been
properly given or served by personal delivery or by depositing with Federal
Express or in the U.S. Mail, postage prepaid, and addressed to the appropriate
addressee set forth below. Each notice shall be effective upon being personally
delivered to Federal Express or upon being deposited in the U.S. Mail. By
giving prior written notice thereof, any party shall have the right from time
to time and at any time to change its respective address.
TO THE COMPANY:
Mr. Gary L. Coulter, Secretary
Tapistron International, Inc.
With a copy to:
Mr. Chester J. Hosch
Schreeder, Wheeler & Flint
127 Peachtree Street, N.E.
Suite 1600
Atlanta, GA 30303
TO PURCHASER:
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------------------------
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(h) Assignment. Purchaser shall have the right to assign its
interest in this contract to another party only with the express written
consent of the Company.
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(i) Consents to be Obtained. Each of the parties hereto agree
that they will use their best efforts to obtain all consents, certificates,
permits, actions and approvals of all third parties required as conditions to
or otherwise to carry out the transactions contemplated in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
COMPANY:
TAPISTRON INTERNATIONAL, INC.
BY:
----------------------------------
J. Darwin Poe
President/CEO
ATTEST: ----------------------------------
Gary L. Coulter
Secretary [Corporate Seal]
PURCHASER:
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Sworn to and subscribed before
me this ____ day of _______, 1997.
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NOTARY PUBLIC
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