Exhibit 10.1


 


REGISTRATION RIGHTS AGREEMENT


 


This
Registration Rights Agreement (this “Agreement”) is made and entered
into as of October 28, 2010, by and between InfoLogix, Inc., a
Delaware corporation (the “Company”), and Hercules Technology Growth
Capital, Inc., a Maryland corporation (“Hercules”).


 


This
Agreement is made pursuant to the Amended and Restated Loan and Security
Agreement, made and dated as of November 20, 2009 (as amended, restated,
supplemented, modified or otherwise in effect from time to time, the “A/R
Loan Agreement”), by and among the Company, InfoLogix Systems
Corporation, Embedded Technologies, LLC, Opt Acquisition LLC and Infologix-DDMS, Inc.
and Hercules.


 


Now,
therefore, in consideration of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, the Company and Hercules agree as follows:


 


1.             Definitions. Capitalized terms used and not
otherwise defined herein that are defined in the A/R Loan Agreement shall have
the meanings given such terms in the A/R Loan Agreement.  As used in this Agreement, the following
terms shall have the following meanings:


 


“Advice” shall have the meaning set forth in Section 6(c).


 


“Commission” means the United States Securities and Exchange
Commission.


 


“Common Stock” means the common stock of the Company, par value
$0.00001 and any other class of securities into which such shares may hereafter
have been reclassified or changed.


 


“Effectiveness Date” means April 30, 2011, extended by a
period of 75 additional days if the Commission reviews the Registration
Statement, provided, however, in the event that the Company is
notified by the Commission that the Registration Statement will not be reviewed
or is no longer subject to further review and comments, the Effectiveness Date
as to the Registration Statement shall be the tenth Trading Day following the
date on which the Company is so notified if such date precedes the dates
required above; provided, further, that if the Effectiveness Date
falls on a Saturday, Sunday or other day that the Commission is closed for
business, the Effectiveness Date shall be extended to the next business day on
which the Commission is open for business.


 


“Effectiveness Period” shall have the meaning set forth in Section 2(a).


 


“Filing Date” means on or prior to January 31, 2011.


 


“Holder” or “Holders” means the holder or holders, as the
case may be, from time to time of Registrable Securities.


 


“Indemnified Party” shall have the meaning set forth in Section 5(b).


 

















 


“Indemnifying Party” shall have the meaning set forth in Section 5(b).


 


“Liquidated Damages” shall have the meaning set forth in Section 2(c).


 


“Losses” shall have the meaning set forth in Section 5(a).


 


“Permitted Shares” means that number of (a) Shares and (b) Common
Stock issued or issuable upon any stock split, dividend or other distribution,
recapitalization or similar event with respect to the foregoing that the
Commission permits the Company to register for resale, issued by the Company to
Hercules, from time to time.


 


“Proceeding” means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation, of which the
Company, or any of the members of its Board of Directors have actual knowledge,
or a partial proceeding, such as a deposition), whether commenced or
threatened.


 


“Prospectus” means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.


 


“Registrable Securities” means all of the Permitted Shares
until, in the case of any such security, (a) the earliest of (i) its
effective registration under the Securities Act and resale in accordance with
the Registration Statement covering it and (ii) its sale to the public
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act, and (b) as a result of the event or circumstance described
in any of the foregoing clauses, the legend with respect to transfer restrictions
therein is removed or removable in accordance with the terms of such legend.


 


“Registration Default” shall have the meaning set forth in Section 2(c).


 


“Registration Default Date” shall have the meaning set forth in Section 2(c).


 


“Registration Statement” means the registration statement
required to be filed hereunder, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.


 


“Rule 144” means Rule 144 promulgated by the
Commission pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same purpose and effect as such Rule.


 


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“Rule 415” means Rule 415 promulgated by the
Commission pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same purpose and effect as such Rule.


 


“Rule 424” means Rule 424 promulgated by the
Commission pursuant to the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same purpose and effect as such Rule.


 


“Shares” means the Common Stock issued by the Company to
Hercules pursuant to Sections 2.4, 2.5(a)(v) and 2.11 of the A/R Loan
Agreement from time to time.


 


“Trading Day” means any day during which the Nasdaq Stock Market
shall be open for business for trading.


 


“Trading Market” means the Nasdaq Stock Market.


 


2.             Registration.


 


(a)           On or prior to the Filing Date, the Company shall prepare
and file with the Commission the Registration Statement covering the resale of
the Registrable Securities for an offering to be made on a continuous basis
pursuant to Rule 415.  The
Registration Statement shall be on Form S-3 (except if the Company is not
then eligible to register for resale the Registrable Securities on Form S-3,
in which case such registration shall be on another appropriate form in
accordance herewith).  Not less than ten
business days prior to filing of the Registration Statement, the Company shall
provide each Holder with a copy of the Registration Statement proposed to be
filed and shall consider all appropriate comments that are timely provided by
such Holder with respect to the Registration Statement.  Subject to the terms of this Agreement, the
Company shall use its commercially reasonable best efforts to cause the
Registration Statement to be declared effective under the Securities Act as
promptly as possible after the filing thereof, but in any event prior to the
Effectiveness Date, and shall use its commercially reasonable best efforts to
keep the Registration Statement continuously effective under the Securities Act
until the earlier of (i) all Registrable Securities covered by the
Registration Statement have been sold, or (ii) subject to the next
successive sentence, (A) Hercules, together with any of its affiliates,
owns less than 10% of the issued and outstanding Common Stock and (B) the
Registrable Securities may be sold free of any restrictions under Rule 144
(the “Effectiveness Period”). 
Upon the Registration Statement ceasing to be effective in connection
with clause (ii) of this section, the Company shall take, at its sole
expense, such further action, including the provision of a legal opinion, as
any Holder may  reasonably request from
time to time to enable such Holder to sell the Registrable Securities without
registration under the Securities Act.


 


(b)           The Company shall notify the Holders via facsimile or
electronic mail of the effectiveness of the Registration Statement within three
Trading Days of the Company telephonically confirming effectiveness with the
Commission.  The Company 


 


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shall, by 9:30 AM Eastern
Time on the Trading Day that is three Trading Days after the Effectiveness
Date, file a Form 424(b)(5) with the Commission.


 


(c)           If
(i) the Registration Statement is not declared effective by the Commission
within 250 days of September 13, 2010, or (ii) following the date in
clause (i), the Registration Statement covering the Registrable Shares ceases
to be effective or usable at any time during the Effectiveness Period (without
being succeeded on the same date immediately by a post-effective amendment or
supplement to the Registration Statement that cures such failure and that is
itself, in the case of a post-effective amendment, declared effective within
ten Trading Days of filing with the Commission) or the Holders are not
permitted to utilize the Prospectus therein to resell such Registrable
Securities for 20 consecutive Trading Days or in any individual case an
aggregate of 30 Trading Days during any twelve-month period (which need not be
consecutive Trading Days) (any of the foregoing being a  “Registration Default” and for
purposes of clause (i) the date on which such Registration Default occurs,
or for purposes of clause (ii) the date on which such 20 or 30 Trading Day
period, as applicable, is exceeded, each being a “Registration Default Date”)
then, subject to Section 3, the Company shall pay to each Holder an amount
in cash, as liquidated damages and not a penalty (“Liquidated Damages”):
(A) equal to $25,000 on the Registration Default Date, and (B) on the
30th day thereafter and at the end of each subsequent 30-day period until such
Registration Default is cured, equal to $25,000 on each such date, provided,
however, that the sum of such amounts shall not exceed $500,000.  The foregoing represents the sole monetary
remedy to any Holder in connection with any Registration Default.  The Company shall pay the Holders any
Liquidated Damages on the Registration default Date, the day that is 30 days
thereof and at the end of each subsequent 30-day period.  If the Company fails to pay any Liquidated
Damages pursuant to this Section in full, the Company will pay interest
thereon at a rate of 8% per annum (or such lesser maximum amount that is
permitted to be paid by applicable law) to the Holder, accruing daily from the
date such Liquidated Damages are due until such amounts, plus all such interest
thereon, are paid in full.  A
Registration Default under clause (i) above shall be cured on the date
that the Registration Statement is filed with the SEC and a Registration
Default under clause (ii) above shall be cured on the date that the
Registration Statement covering the Permitted Shares is declared effective by
the SEC or is otherwise usable. 
Notwithstanding the foregoing, no Liquidated Damages shall accumulate as
to any Registrable Security from and after the earlier of (x) the date
such security is no longer a Registrable Security and (y) expiration of
the Effectiveness Period.


 


(d)           The
Company shall not be liable for any Liquidated Damages under Section 2(c) if
the Holders are not permitted to utilize the Prospectus because the Company is
negotiating a merger, consolidation, acquisition or sale of all or
substantially all of its assets or a similar transaction which, in the good
faith judgment of the Board of Directors, requires the Registration Statement
to be amended to include information in connection with such pending
transaction (including the parties thereto) and such information is not yet
available or publicly disclosable, or the Company is otherwise aware of such
other material non-public information which, in the good faith judgment of the
Board of Directors, requires the Registration Statement to be amended to
include such 


 


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other material non-public information and such information is not yet
publicly disclosable, for an aggregate of 30 consecutive days.


 


(e)           Each
Holder agrees to furnish to the Company (i) a completed selling
stockholder questionnaire not more than ten Trading Days before the filing of
the Registration Statement and (ii) such other information the Company
reasonably requires to prepare the Registration Statement.  Each Holder further agrees that it shall not
be entitled to be named as a selling stockholder in the Registration Statement
or use the Prospectus for offers and resales of Registrable Securities at any
time, unless such Holder has returned this information to the Company.  Each Holder acknowledges and agrees that the
information in the selling stockholder questionnaire or request for further
information as described in this Section 2(e) will be used by the
Company in the preparation of the Registration Statement and hereby consents to
the inclusion of such information in the Registration Statement.


 


3.             Registration Procedures.


 


In
connection with the Company’s registration obligations hereunder, the Company
shall:


 


(a)           (i) Prepare and file with the Commission such
amendments, including post-effective amendments, to the Registration Statement
and the Prospectus used in connection therewith as may be necessary to keep the
Registration Statement continuously effective as to the applicable Registrable
Securities for the Effectiveness Period; (ii) cause the related Prospectus
to be amended or supplemented by any required Prospectus supplement (subject to
the terms of this Agreement), and as so supplemented or amended to be filed
pursuant to Rule 424; (iii) respond as promptly as reasonably
possible to any comments received from the Commission with respect to the
Registration Statement or any amendment thereto; and (iv) comply in all
material respects with the provisions of the Securities Act and the Exchange
Act with respect to the disposition of all Registrable Securities covered by
the Registration Statement during the applicable period in accordance (subject
to the terms of this Agreement) with the intended methods of disposition by the
Holders thereof set forth in the Registration Statement as so amended or in
such Prospectus as so supplemented; provided, however,
that each Holder shall be responsible for the delivery of the Prospectus in
accordance with Rule 172 under the Securities Act, and each Holder agrees
to dispose of Registrable Securities in compliance with the plan of
distribution described in the Registration Statement and otherwise in
compliance with applicable federal and state securities laws;


 


(b)           Notify the Holders of Registrable Securities to be sold
(which notice shall, pursuant to clauses (ii) through (v) hereof, be
accompanied by an instruction to suspend the use of the Prospectus until the requisite
changes have been made) as promptly as reasonably possible and (if requested by
any such Person) confirm such notice in writing no later than one Trading Day
following the day (i)(A) when a Prospectus or any Prospectus supplement or
post-effective amendment to the Registration Statement is filed; and (B) with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective; (ii) of any request by the Commission 


 


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or any other Federal or
state governmental authority for amendments or supplements to the Registration
Statement or Prospectus or for additional information; (iii) of the
issuance by the Commission or any other federal or state governmental authority
of any stop order suspending the effectiveness of the Registration Statement
covering any or all of the Registrable Securities or the initiation of any
Proceedings for that purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction, or the initiation or threatening of any Proceeding for such
purpose; and (v) of the occurrence of any event or passage of time that
makes the financial statements included in the Registration Statement
ineligible for inclusion therein or any statement made in the Registration
Statement or Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, it will not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading; provided that any and all of such information
provided pursuant to clause (v) above shall remain confidential to each
Holder until such information otherwise becomes public, and such Holder agrees
not to trade on such information, unless disclosure by a Holder is required by
law; provided, further, notwithstanding each Holder’s agreement
to keep such information confidential, the Holders make no acknowledgement that
any such information is material, non-public information;


 


(c)           Use its commercially reasonable best efforts to avoid the
issuance of, or, if issued, obtain the withdrawal of (i) any order
suspending the effectiveness of the Registration Statement, or (ii) any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction, as soon as practicable;


 


(d)           Furnish to each Holder, upon written request of such
Holder, without charge, at least one conformed copy of the Registration
Statement and each amendment thereto, including financial statements and
schedules, all documents incorporated or deemed to be incorporated therein by
reference to the extent requested by such Person, and all exhibits to the
extent requested by such Person (including those previously furnished or
incorporated by reference); provided, that the Company shall have no obligation
to provide any document pursuant to this clause that is available on the
Commission’s EDGAR system;


 


(e)           Promptly deliver to each Holder, upon written request of
such Holder, without charge, as many copies of the Prospectus or Prospectuses
(including each form of prospectus) and each amendment or supplement thereto as
such Persons may reasonably request in connection with resales by the Holder of
Registrable Securities.  Subject to the
terms of this Agreement, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders in connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any 


 


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amendment or supplement
thereto, except after the giving of any notice pursuant to Section 3(b);


 


(f)            Prior to any resale of Registrable Securities by a
Holder, use its commercially reasonable efforts to register or qualify or
cooperate with the selling Holders in connection with the registration or
qualification (or exemption from the Registration or qualification) of such
Registrable Securities for the resale by the Holder under the securities or
Blue Sky laws of such jurisdictions within the United States as any Holder
reasonably requests in writing, to keep each registration or qualification (or
exemption therefrom) effective during the Effectiveness Period and to do any
and all other acts or things reasonably necessary to enable the disposition in
such jurisdictions of the Registrable Securities covered by each Registration
Statement; provided that the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified or subject
the Company to any material tax in any such jurisdiction where it is not then
so subject or file a general consent to service of process in any such
jurisdiction;


 


(g)           If requested by the Holders, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be delivered to a transferee pursuant to the
Registration Statement, which certificates shall be free of all restrictive
legends, and to enable such Registrable Securities to be in such denominations
and registered in such names as any such Holders may request;


 


(h)           Upon the occurrence of any event contemplated by this Section 3,
as promptly as reasonably possible under the circumstances taking into account
the Company’s good faith assessment of any adverse consequences to the Company
and its shareholders of the premature disclosure of such event, prepare a
supplement or amendment, including a post-effective amendment, to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, and
file any other required document so that, as thereafter delivered, neither the
Registration Statement nor such Prospectus will contain 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, in light of the circumstances
under which they were made, not misleading. 
If the Company notifies the Holders in accordance with clauses (ii) through
(v) of Section 3(b) above to suspend the use of any Prospectus
until the requisite changes to such Prospectus have been made, then the Holders
shall suspend use of such Prospectus. 
The Company will use its commercially reasonable best efforts to ensure
that the use of the Prospectus may be resumed as promptly as is
practicable.  The Company shall be
entitled to exercise its right under this Section 3(h) to suspend the
availability of the Registration Statement and Prospectus for a period not to
exceed 90 days (which need not be consecutive days) in any 365 day period;


 


(i)            Comply with all applicable rules and regulations of
the Commission and the Trading Market; and


 


(j)            Be permitted to require each selling Holder to furnish to
the Company (i) a certified statement as to the number of shares of Common
Stock beneficially owned by 


 


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such Holder, (ii) if
required by the Commission, the person thereof that has voting and dispositive
control over the Permitted Shares and (iii) any further information
required by the Commission.  During any
periods that the Company is unable to meet its obligations hereunder with
respect to the registration of the Registrable Securities solely because any
Holder fails to furnish such information within five Trading Days of the
Company’s request, any Liquidated Damages that are accruing at that time as to
such Holder only shall be tolled and any Registration Default that may
otherwise occur solely because of such delay shall be suspended as to such Holder
only, until such information is delivered to the Company; provided, however,
that if the failure of any one Holder affects the Company’s ability to meet its
obligations with respect to the registration of all of the Registrable
Securities, any Liquidated Damages that are accruing at that time as to such
Holder only shall be tolled and any Registration Default that may otherwise
occur or continue solely because of such delay shall be suspended as to all
Holders until such information is delivered to the Company.


 


4.             Registration Expenses. All fees and expenses
incident to the performance of or compliance with this Agreement by the Company
shall be borne by the Company whether or not any Registrable Securities are
sold pursuant to the Registration Statement. 
The fees and expenses referred to in the foregoing sentence shall
include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to
filings required to be made with the Trading Market on which the Common Stock
are then listed for trading and (B) in compliance with applicable state
securities or Blue Sky laws reasonably requested by the Holder and reasonably
agreed to by the Company in writing (including, without limitation, fees and disbursements
of counsel for the Company in connection with Blue Sky qualifications or
exemptions of the Registrable Securities and determination of the eligibility
of the Registrable Securities for investment under the laws of such
jurisdictions as requested by the Holders); (ii) printing expenses
(including, without limitation, expenses of printing certificates for
Registrable Securities and of printing prospectuses for a Holder if the
printing of prospectuses is reasonably requested by such Holder); (iii) messenger,
telephone and delivery expenses related to the Company’s obligations hereunder;
(iv) fees and disbursements of counsel for the Company; (v) Securities
Act liability insurance, if the Company so desires such insurance; and (vi) fees
and expenses of all other Persons retained by the Company in connection with
the consummation of the transactions contemplated by this Agreement.  In addition, the Company shall be responsible
for all of its internal expenses incurred in connection with the consummation
of the transactions contemplated by this Agreement (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit and the fees and
expenses incurred in connection with the listing of the Registrable Securities
on any securities exchange as required hereunder, including all fees and
expenses of the depositary.  In no event
shall the Company be responsible for any underwriting, broker or similar fees
or commissions of any Holder.


 


5.             Indemnification.


 


(a)           (i) Indemnification by the Company. The
Company shall, notwithstanding any termination of this Agreement, indemnify and
hold harmless each Holder, the


 


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officers, directors,
members, partners, agents, brokers (including brokers who offer and sell
Registrable Securities as principal as a result of a pledge or any failure to
perform under a margin call of Shares), investment advisors and employees of
each of them, each Person who controls any such Holder (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) and the officers,
directors, members, partners, agents and employees of each such controlling
Person, to the fullest extent permitted by applicable law, from and against any
and all losses, claims, damages, liabilities, judgments, fines, penalties,
charges, costs (including, without limitation, reasonable attorneys’ fees) and
expenses (collectively, “Losses”), as incurred, arising out of or
relating to any untrue or alleged untrue statement of a material fact contained
in the Registration Statement, any Prospectus or any form of prospectus or in
any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus or form of prospectus or supplement thereto, in
light of the circumstances under which they were made) not misleading, except
to the extent, but only to the extent, that (A) such untrue statements or
omissions are based solely upon information regarding such Holder furnished in
writing to the Company by such Holder expressly for use therein, or to the
extent that such information relates to such Holder or such Holder’s proposed
method of distribution of Registrable Securities and was reviewed and approved
in writing by such Holder thereof expressly for use in the Registration Statement,
such Prospectus or such form of Prospectus or in any amendment or supplement
thereto, or (B) in the case of an occurrence of an event of the type
specified in Section 3(b)(ii)-(v), the use by such Holder of an outdated
or defective Prospectus after the Company has notified such Holder in writing
that the Prospectus is outdated or defective and prior to the receipt by such
Holder of the Advice contemplated in Section 6(c).


 


(ii)  Indemnification
by Holders. Each Holder shall, notwithstanding any termination of this
Agreement, severally and not jointly, indemnify and hold harmless the Company,
its directors, officers, agents and employees, each Person who controls the
Company (within the meaning of Section 15 of the Securities Act and Section 20
of the Exchange Act), and the directors, officers, agents or employees of such
controlling Persons, to the fullest extent permitted by applicable law, from
and against all Losses, as incurred, arising out of or are related to any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement, any Prospectus, or any form of prospectus, or in any
amendment or supplement thereto or in any preliminary prospectus, or arising
out of or relating to any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus, or any form of prospectus or supplement thereto, in
light of the circumstances under which they were made) not misleading (i) to
the extent, but only to the extent, that such untrue statements or omissions
are based solely upon information regarding such Holder furnished in writing to
the Company by such Holder thereof expressly for use therein, (ii) to the
extent, but only to the extent, that such information relates to such Holder or
such Holder’s proposed method of distribution of Registrable Securities and was
reviewed and approved in writing by such Holder or agent thereof expressly for
use in a Registration Statement, such Prospectus or such form of Prospectus or
in any amendment or supplement thereto, or (iii) in the case of an
occurrence of an 


 


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event of the type specified in Section 3(b)(ii)-(v) to
the extent, but only to the extent, related to the use by such Holder of an
outdated or defective Prospectus after the Company has notified such Holder in
writing that the Prospectus is outdated or defective and prior to the receipt
by such Holder of the Advice contemplated in Section 6(c).


 


(b)           Conduct of Indemnification Proceedings. If any
Proceeding shall be brought or asserted against any Person entitled to
indemnity hereunder (an “Indemnified Party”), such Indemnified Party
shall promptly notify the person from whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall have the right to
assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees and expenses
incurred in connection with defense thereof; provided, that the failure
of any Indemnified Party to give such notice shall not relieve the Indemnifying
Party of its obligations or liabilities pursuant to this Agreement, except (and
only) to the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have prejudiced the Indemnifying Party.


 


An Indemnified Party shall have the right to employ separate counsel in
any such Proceeding and to participate in the defense thereof, but the
reasonable fees and expenses of such counsel shall be at the expense of such
Indemnified Party or Parties unless: (i) the Indemnifying Party has agreed
in writing to pay such fees and expenses; (ii) the Indemnifying Party
shall have failed promptly to assume the defense of such Proceeding; (iii) the
Indemnifying Party shall have failed promptly to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (iv) the
named parties to any such Proceeding (including any impleaded parties) include
both such Indemnified Party and the Indemnifying Party, and such Indemnified
Party shall reasonably believe that a material conflict of interest is likely
to exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the reasonable fees and expenses of one
separate counsel shall be at the expense of the Indemnifying Party).  The Indemnifying Party shall not be liable
for any settlement of any such Proceeding effected without its written consent,
which consent shall not be unreasonably withheld.  No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any settlement of any
pending Proceeding in respect of which any Indemnified Party is a party, unless
such settlement includes an unconditional release of such Indemnified Party
from all liability on claims that are the subject matter of such Proceeding.


 


The Indemnified Party shall promptly reimburse the Indemnifying Party
for that portion of such reasonable fees and expenses applicable to such
actions for which such Indemnified Party is not entitled to indemnification
hereunder, determined based upon the relative faults of the parties.


 


(c)           Contribution. If the indemnification under Section 5(a) is
unavailable to an Indemnified Party or insufficient to hold an Indemnified
Party harmless for any Losses, then the Indemnifying Party shall contribute to
the amount paid or payable by such Indemnified Party, in such proportion as is
appropriate to reflect the relative fault of the 


 


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Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable
considerations.  The relative fault of
such Indemnifying Party and Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of
a material fact, has been taken or made by, or relates to information supplied
by, such Indemnifying Party or Indemnified Party, and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such action, statement or omission.  The
amount paid or payable by a party as a result of any Losses shall be deemed to
include, subject to the limitations set forth in Section 5(b), any
reasonable attorneys’ or other reasonable fees or expenses incurred by such
party in connection with any Proceeding to the extent such party would have
been indemnified for such fees or expenses if the indemnification provided for
in this Section was available to such party in accordance with its terms.


 


The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5(c) were determined by pro
rata allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the immediately preceding
paragraph.


 


The indemnity and contribution agreements contained in this Section are
in addition to any other liability that the Indemnifying Parties may have to
the Indemnified Parties.


 


6.             Miscellaneous.


 


(a)           Remedies. Subject to Section 2(c), (i) in
the event of a breach by the Company or by a Holder, of any of their
obligations under this Agreement, each Holder or the Company, as the case may
be, in addition to being entitled to exercise all rights granted by law and
under this Agreement, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement and (ii) the
Company and each Holder agree that monetary damages would not provide adequate
compensation for any losses incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of
any action for specific performance in respect of such breach, it shall waive
the defense that a remedy at law would be adequate


 


(b)           Compliance. 
Each Holder covenants and agrees that it will comply with the prospectus
delivery requirements of the Securities Act as applicable to it in connection
with sales of Registrable Securities pursuant to the Registration Statement and
shall sell the Registrable Securities only in accordance with a method of distribution
described in the Registration Statement.


 


(c)           Discontinued Disposition.  Each Holder agrees by its acquisition of such
Registrable Securities that, upon receipt of a notice from the Company of the
occurrence of any event of the kind described in Section 3(b)(ii) through
Section 3(b)(v), such Holder will forthwith discontinue disposition of
such Registrable Securities under the Registration Statement until it is
advised in writing (the “Advice”) by the Company that 


 


11

















 


the use of the applicable
Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus or Registration Statement subject to Section 3(d).  The Company agrees and acknowledges that any
periods during which the Holder is required to discontinue the disposition of
the Registrable Securities during the Effectiveness Period hereunder shall be
subject to the provisions of Sections 2(c), 2(d) and 3(h), as
applicable.  The Company will use its
commercially reasonable best efforts to ensure that the use of the Prospectus
may be resumed as promptly as it practicable.


 


(d)           Piggy-Back Registrations. If at any time during the
Effectiveness Period there is not an effective Registration Statement covering
all of the Registrable Securities and the Company shall determine to prepare
and file with the Commission a registration statement relating to an offering
for its own account or the account of others under the Securities Act of any of
its equity securities, other than on Form S-4 or Form S-8 (each as
promulgated under the Securities Act) or their then equivalents relating to
equity securities to be issued solely in connection with any acquisition of any
entity or business or equity securities issuable in connection with the stock
option or other employee benefit plans, then the Company shall send to each
Holder a written notice of such determination and, if within fifteen days after
the date of such notice, any such Holder shall so request in writing, the
Company shall include in such registration statement all or any part of such
Registrable Securities such Holder requests to be registered.


 


Notwithstanding the
foregoing, if any requested registration pursuant to this section involves an
underwritten offering by the Company, and the managing underwriter shall advise
the Company the distribution of all or a portion of the Registrable Securities
requested to be included in the registration concurrently with the securities
being registered by the Company would materially adversely affect the
distribution of such securities by the Company for its own account,
then (i) the number of Registrable Securities so requested to be
included in such registration shall be reduced to that number of shares which,
in the good faith judgment of the managing underwriter, can be sold in such
offering, and this reduced number shall be allocated pro  rata
among such Holders on the basis of the number of Registrable Securities
requested to be so registered by such Holders, and (ii) if the requesting
Holders are participating in a primary offering by the Company, the Company
will include in such registration, to the extent of the number of securities
which the Company is so advised can be sold in such offering, (A) first,
securities that the Company proposes to issue and sell for its own account and
any preferred securities proposed to be so registered, and (B) second,
Registrable Securities requested to be registered by the Holders thereof
pursuant to this Section allocated pro  rata among such
Holders and such on the basis of the number of Registrable Securities to be so
registered.


 


(e)           Amendments and Waivers.  The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the same shall be in writing and signed by the Company and each
Holder of the then outstanding Registrable Securities.  Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the 


 


12

















 


rights of Holders and that
does not directly or indirectly affect the rights of other Holders may be given
by Holders of all of the Registrable Securities to which such waiver or consent
relates; provided, however, that the provisions of this sentence
may not be amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.


 


(f)            Notices. 
Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be delivered as set forth in the A/R
Loan Agreement.


 


(g)           Successors and Assigns.  This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each Holder. 
The Company may not assign its rights or obligations hereunder without
the prior written consent of all of the Holders of the then outstanding
Registrable Securities.  Each Holder may
assign a portion of their respective rights hereunder to any purchaser of
Registrable Securities in a transaction not otherwise covered by a Registration
Statement, provided such Holder has transferred to such purchaser shares of
Common Stock constituting at least 5% of the issued and outstanding shares of
the Common Stock, and the purchaser executes a joinder to this Agreement.


 


(h)           No Inconsistent Agreements.  Neither the Company nor any of its
Subsidiaries has entered, as of the date hereof, nor shall the Company or any
of its subsidiaries, on or after the date of this Agreement, enter into any
agreement with respect to its securities, that would have the effect of
impairing the rights granted to the Holders in this Agreement.


 


(i)            Execution and Counterparts.  This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an
original and, all of which taken together shall constitute one and the same
Agreement.  In the event that any
signature is delivered by facsimile transmission or email via .pdf, such
signature shall create a valid binding obligation of the party executing (or on
whose behalf such signature is executed) the same with the same force and
effect as if such facsimile or .pdf signature were the original thereof.


 


(j)            Governing Law. 
All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be determined with the provisions of the
A/R/ Loan Agreement.


 


(k)           Cumulative Remedies.  The remedies provided herein are cumulative
and not exclusive of any remedies provided by law.


 


(l)            Severability. 
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties hereto shall
use their commercially reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as 


 


13

















 


that contemplated by such
term, provision, covenant or restriction. 
It is hereby stipulated and declared to be the intention of the parties
that they would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter declared
invalid, illegal, void or unenforceable.


 


(m)          Headings.  The
headings in this Agreement are for convenience of reference only and shall not
limit or otherwise affect the meaning hereof.


 


(n)           Independent Nature of Holders’ Obligations and Rights.  The obligations of each Holder hereunder are
several and not joint with the obligations of any other Holder hereunder, and
no Holder shall be responsible in any way for the performance of the
obligations of any other Holder hereunder other than as specified in this
Agreement.  Nothing contained herein or
in any other agreement or document delivered at any closing, and no action
taken by any Holder pursuant hereto or thereto, shall be deemed to constitute
the Holders as a partnership, an association, a joint venture or any other kind
of entity, or create a presumption that the Holders are in any way acting in
concert with respect to such obligations or the transactions contemplated by
this Agreement.  Each Holder shall be
entitled to protect and enforce its rights, including without limitation the
rights arising out of this Agreement, and it shall not be necessary for any
other Holder to be joined as an additional party in any proceeding for such
purpose.


 


****************************


 


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IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
as of the date first written above.


 


	
   

  	
  INFOLOGIX, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  David T. Gulian

  
	
   

  	
  Name:

  	
  David
  T. Gulian

  
	
   

  	
  Title:

  	
  Chief
  Executive Officer and President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HERCULES
  TECHNOLOGY GROWTH CAPITAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  K. Nicholas Martitsch

  
	
   

  	
  Name:

  	
  K.
  Nicholas Martitsch

  
	
   

  	
  Title:

  	
  Associate
  General Counsel

  



 


Signature Page to
Registration Rights Agreement