REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT
REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT (the
"Agreement") made and entered into this 31st day of October 1989, by and among
VIDEO BROADCASTING CORPORATION, a Delaware corporation (the "Company"), NEW
YORK STATE BUSINESS VENTURE PARTNERSHIP, a New York limited partnership
("NYSBVP"), AMERICAN RESEARCH & DEVELOPMENT II, L.P., a Delaware limited
partnership ("ARD"), and the parties executing the signature page hereof being
holders of the Company's Series A Unsecured Convertible Debentures Due 1992
(the "Series A Debentures") and Series B Subordinate Unsecured Convertible
Debentures Due 1992 (the "Series B Debentures", and collectively with the
Series A Debentures, the "Debentures"). NYSBVP, ARD and such holders of the
Debentures are sometimes hereinafter referred to collectively as, the
"Purchasers."
W I T N E S S E T H :
WHEREAS, the Company wishes to induce each of NYSBVP and ARD
to enter into a certain stock purchase agreement to be dated of even date
herewith, pursuant to which NYSBVP and ARD intend, among other things,, to
subscribe for the purchase of 345,455 and 200,000 shares, respectively, of the
Company's Series C 10% Cumulative Convertible Preferred Stock, $2.75 par value
per share (the "Series C Preferred Stock");
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WHEREAS, the Company wishes to induce the holders of the
Debentures to convert their Debentures into shares of the Company's Series A
10% Cumulative Convertible Preferred Stock, $1.50 par value per share (the
"Series A Preferred Stock"), and Series B 10% Cumulative Convertible Preferred
Stock, $1.35 par value per share (the "Series B Preferred Stock", and
collectively with the Series A Preferred Stock and Series C Preferred Stock,
the "Preferred Stock"), for the aggregate conversion price and for such number
of shares of Series A Preferred Stock or Series B Preferred Stock, as the case
may be set forth opposite the names of such holders on Annex I hereto; and
WHEREAS, the shares of Preferred Stock are convertible on a
share-for-share basis (subject to adjustment) into shares of the Company's
common stock, $.01 par value per share (the "Common Stock");
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein, each of the Company and the Purchasers,
intending to be legally bound, hereby agree as follows:
1. REGISTRATION RIGHTS.
(a) Registration Upon Request. At any time (and
from time to time) from and after the earlier to occur of (i) the closing of the
initial issuance, offering and sale to the public of the Company's securities
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "Securities Act"), or (ii) October 31, 1991, and upon the
written request of any Qualified Holder(s) (as defined below) of Registrable
Securities (as defined below) requesting that the Company effect the
registration under the Securities Act and the rules and regulations
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thereunder of any Registrable Securities then held-by such Qualified Holder(s)
(which request shall state the intended method of disposition by such Qualified
Holder(s)) the Company shall provide prompt written notice of such requested
registration to all holders of Registrable Securities, and thereupon, the
Company shall, as expeditiously as may be practicable, use its best efforts to
effect the registration under the Securities Act of (i) the Registrable
Securities which the Company has been so requested to register, for disposition
in accordance with the intended method of disposition stated in such request;
and (ii) all other Registrable Securities the registered holders of which shall
have requested to be registered within 30 days after the receipt of the
aforementioned written notice by the Company; all to the extent requisite to
permit the disposition by the holder of the shares constituting Registrable
Securities to be so sold. The Company shall not be required to effect more than
two registrations of Registrable Securities pursuant to this Section 1(a) (the
"Requested Registration Limit") and shall not be required to effect any such
registration if the anticipated aggregate offering price of the Registrable
securities to be registered (net of underwriting discounts, commissions and
spreads), is less than $5,000,000 in the aggregate; provided, however, should
the Company fail to comply, with Section 1(c)(ii) hereof, any such registration
shall not be counted in determining the number of available registration
requests which remain under the Requested Registration Limit; and, provided,
further, anything to the contrary in this Section 1 notwithstanding, and
irrespective of the Requested Registration Limit, in the event the Company is
eligible to effect a registration under the Securities Act using Form S-3 (or
other comparable short-form registration statement), the holders of Registrable
Securities having a fair
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value of at least $750,000 shall be entitled to request, and the Company shall
be required to use its best efforts to effect, an unlimited number of
registrations of such Registrable Securities by use of Form S-3 (or other
comparable short-form Registration Statement).
As used in this Agreement, the term "Qualified Holder(s)"
means as of any date of the determination thereof, the registered holder(s) of
(i) not less than 20% of the then outstanding shares of any series of Preferred
Stock, or (ii) not less than 20% of the then outstanding shares of Preferred
Stock, taken as a whole and without regard to series.
As used in this Agreement, the term "Registrable Securities"
means any and all shares of Common Stock into which shares of Preferred Stock
have been converted (or will be converted immediately prior to the filing of
any registration statement).
(b) Incidental Registration.
(i) If the Company at any time proposes to
register under the Securities Act any of its Equity
Securities (as defined in Section 3(a)(11) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (other than pursuant to Section
1(a) or on Form S-4 or S-8 or any successor form
thereto or a form of registration statement not
available for the general registration of
securities) whether or not for sale for its own
account, and if the registration form proposed to be
used may be used to effect the general registration
of Registrable Securities,
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the Company shall notify promptly in writing all
holders of Registrable Securities of its intention
to effect such registration. Upon the written
request of any holder of Registrable Securities made
within 20 days after the receipt of the
aforementioned notice by the Company (which request
shall specify the Registrable Securities intended to
be disposed of by such holder), the Company shall
use its best efforts to cause all such Registrable
Securities (the holders of which shall have
requested the registration thereof), to be
registered under the Securities Act together with
the securities which the Company at the time
proposes to register, all to the extent requisite to
permit the sale or other disposition (in accordance
with the intended methods thereof as aforesaid) by
the holders of the Registrable Securities to be
registered; provided, however, that the Company
shall have the right to postpone or withdraw in good
faith any such registration without any obligation
to any holder.
(ii) No incidental registration effected
pursuant to this Section 1(b) shall be deemed to
have been effected pursuant to Section 1(a).
(iii) If the Company shall previously have
received a request for registration pursuant to
Section 1(a) or pursuant to this Section 1(b) and if
such previous registration shall not have been
terminated, withdrawn or abandoned, the Company
shall not effect
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any registration of any of its Equity Securities
under the Securities Act other than on Form S-4 or
Form S-8 (or any successor form thereto or a form of
registration statement not available for the general
registration of securities) whether or not for sale
for its own account, until the earlier of (i) the
date all securities included in such previous
registration are sold, or (ii) the six month
anniversary of the effective date of such previous
registration; and the Company shall so provide in
any registration or similar agreements hereinafter
entered into with any person with respect to any of
its securities.
(c) Registration Procedures. If and whenever
the Company is required by the provisions of this Agreement to effect or cause
the registration of any Registrable Securities under the Securities Act as
provided in this Agreement, the Company shall, as expeditiously as may be
practicable:
(i) prepare and file with the securities
and Exchange Commission (it being understood that if
a request for registration pursuant to Section 1(a)
is made prior to the end of the Company's then
current fiscal year and such registration is to be
effected other than on Form S-3 (or other comparable
short-form registration statement), the Company
shall be entitled to delay the effectiveness of such
registration until the earlier of (x) such time as
the Company receives audited financial statements
for said fiscal year or (y) the expiration of 90
days after the end of such
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fiscal year), a registration statement with respect
to such Registrable Securities (including such
audited financial statements as the Board of
Directors may in good ▇▇▇▇▇ ▇▇▇▇ appropriate) and
use its best efforts to cause such registration
statement to become and remain effective under the
Securities Act for not less than 180 days;
(ii) prepare and file with the Securities
and Exchange Commission such amendments and
supplements to such registration statement and the
prospectus included therein and used in connection
therewith as may be necessary to keep such
registration statement effective for such period
(not to exceed 180 days) as shall be necessary to
complete the offering and the distribution of the
securities covered thereby, in each case, exclusive
of any period during which the prospectus included
in and used in connection with such registration
statement shall not comply with the requirements of
Section 10 of the Securities Act; and to comply with
the provisions of the Securities Act and the rules
and regulations thereunder with respect to the sale
or other disposition of all securities covered by
such registration statement during such period in
accordance with the intended methods of disposition
by the seller or sellers thereof set forth in such
registration statement;
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(iii) furnish to each seller of Registrable
Securities and each underwriter of the securities
being sold by such seller, such number of copies
(including manually executed and conformed copies)
of such registration statement and of each such
amendment and supplement thereto (in each case,
including all appendices, schedules and exhibits
thereto), such number of copies of the prospectus
included in and used in connection with such
registration statement (including each preliminary
prospectus), and such number of copies of the final
prospectus as filed by the Company pursuant to Rule
424(b), in conformity with the requirements of the
Securities Act and the rules and regulations
thereunder, and such other documents, as such seller
and underwriter may reasonably request in order to
facilitate the public sale or other disposition of
the Registrable Securities owned by such seller;
(iv) use its best efforts to register or
qualify the Registrable Securities covered by such
registration statement under such other securities
or Blue Sky laws of such jurisdictions as any seller
and each underwriter of the Registrable Securities
being sold by such seller shall reasonably request,
and do any and all other acts and things which may
be necessary or desirable to enable such seller and
underwriter to consummate the offering and
disposition in such jurisdictions of the Registrable
Securities
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owned by such seller, except that the Company shall
not for any such purpose be required to qualify
generally to do business as a foreign corporation in
any jurisdiction wherein it would not, but for the
requirements of this paragraph 1(c), be obligated to
be qualified, subject itself to taxation, or consent
to general service of process;
(v) use its best efforts to cause the
Registrable Securities covered by such registration
statement to be registered with, or approved by,
such other United States public, governmental or
regulatory agencies, bodies, authorities or
instrumentalities as may be necessary to enable the
seller or sellers thereof to consummate the
disposition of such Registrable Securities in the
manner intended by such seller or sellers;
(vi) notify each seller of any Registrable
Securities covered by such registration statement,
at any time when a prospectus relating thereto is
required to be delivered under the Securities Act,
of the Company's knowledge that the prospectus
included in and used in connection with such
registration statement (or deemed to be included in
such registration statement if the registration
statement, at the time it is declared effective,
omits certain information as permitted by Rule 430A
of the Securities Act), as then in effect, includes
an untrue statement of a material fact or omits to
state any material fact required to be
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stated therein or necessary to make the statements
therein, in light of the circumstances under which
they were made, not misleading, and promptly prepare
and furnish to such seller and each underwriter a
reasonable number of copies of a prospectus
supplemented or amended such that, as thereafter
delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an
untrue statement of a material fact or omit to state
a material fact required to be stated therein or
necessary to make the statements therein, in light
of the circumstances under which they are made, not
misleading;
(vii) otherwise use its best efforts to
comply with all applicable rules and regulations of
the Securities and Exchange Commission, as the same
may be amended from time to time, and make available
to its security holders, as expeditiously as may be
practicable, an earnings statement covering the
period of at least twelve months (but not more than
eighteen months), beginning with the first day of
the Company's fiscal quarter next succeeding the
effective date of the registration statement, which
earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act;
(viii) upon the reasonable request of any
Managing Underwriter (as defined in Rule 12b-2 under
the Exchange Act) of the Registrable Securities, use
its best efforts to cause all such
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Registrable Securities covered by such registration
statement to be listed on each securities exchange
on which similar securities issued by the Company
are then listed, if the listing of such Registrable
Securities is then permitted under the rules and
regulations of such exchange;
(ix) engage and provide a transfer agent
and registrar for all Registrable Securities covered
by such registration statement not later than the
effective date of such registration statement;
(x) enter into an underwriting agreement
(in customary form and substance) and take all such
other actions as the seller or sellers of at least
66 2/3% of the aggregate Registrable Securities to
be registered and sold shall reasonably request in
order to expedite or facilitate the disposition of
such Registrable Securities; it being hereby
acknowledged and agreed that in the case of any
registration effected pursuant to Section 1(a), the
selection of any Managing Underwriter(s) shall be
made by the holders of at least 66 2/3% of the
aggregate amount of Registrable Securities to be
registered, subject to the consent of the Company
(which consent shall not be unreasonably withheld);
(xi) obtain an opinion from the Company's
counsel and a "cold comfort" letter from the
Company's independent certified public accountants
in customary form and covering such matters of the
type customarily covered by such opinions and "cold
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comfort" letters as the seller or sellers of
Registrable Securities holding at least 66 2/3% of
the aggregate shares thereof shall reasonably
request;
(xii) make available for inspection by any
seller of Registrable Securities covered by such
registration statement, by any Managing
Underwriter(s) or other underwriters participating
in any disposition to be effected pursuant to such
registration statement, and by any attorney,
accountant or other agent, consultant or advisor
retained by any such seller or underwriter, all
pertinent financial and other records, corporate
documents and properties of the Company; and cause
all of the Company's officers, directors and
employees to supply all information reasonably
requested by any such seller, underwriter, attorney,
accountant, agent or advisor in connection with such
registration statement; and
(xiii) permit any holder of Registrable
Securities who, in the sole and exclusive judgment
of such holder, might be deemed to be a controlling
person of the Company, to participate in the
preparation of such registration or comparable
statement and include therein material furnished by
such holder to the Company in writing which, in the
reasonable judgment of such holder, subject to the
consent of the Company (which consent shall not be
unreasonably withheld), should be included therein;
it being
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hereby acknowledged and agreed that each holder of
Registrable Securities shall be deemed to have
agreed by acquisition of such Registrable Securities
that upon the receipt of any notice from the Company
of the occurrence of any event of the kind described
in Section 1(c)(vi), such holder shall forthwith
discontinue such holder's offer and disposition of
Registrable Securities pursuant to the registration
statement covering such Registrable Securities until
such holder's receipt of the copies of the
"stickered," supplemented or amended prospectus
and/or registration statement contemplated by
Section 1(c)(vi) and, if so directed by the Company,
shall deliver to the Company (at the Company's
expense) all copies, other than permanent file
copies, of the prospectus covering such Registrable
Securities then in such holder's possession; and it
being hereby further acknowledged and agreed that in
the event the Company shall provide any such notice,
the 180-day period specified in Section l(c)(ii)
shall be extended by the number of days during the
period from and including the date such notice is
provided, to and including the date when each seller
of any Registrable Securities covered by such
registration statement shall have received the
copies of the "stickered", supplemented or amended
prospectus and/or registration statement
contemplated by Section 1(c)(vi).
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(xiv) If any registration or comparable
statement refers to any holder by name or otherwise
as the holder of any securities of the Company, and
if such holder reasonably believes it is or may be
deemed to be a controlling person in relation to, or
an Affiliate (as such term is defined in Rule 12b-2
under the Exchange Act) of, the Company, then such
holder shall have the right to require (1) the
inclusion in such registration or comparable
statement of language, in form and substance
satisfactory to such holder, to the effect that the
ownership by such holder of such securities is not
to be construed as and is not intended to be a
recommendation by such holder of the investment
quality of, or the relative merits and risks
attendant to the purchase of, the Company's
securities covered thereby, and that such ownership
does not imply that such holder will assist in
meeting any future financial operating requirements
of the Company, or (2) (in the case where the
reference to such holder by name or otherwise is not
required by the Securities Act or any similar
federal or state statute then in force), the
deletion of the reference to such holder.
(xv) If any registration under Section 1(a)
which is proposed by the Company to be on Form S-3
(or any similar short-form registration statement
which is a successor to Form S-3) shall be used in
connection with an underwritten public offering, and
if the Managing Underwriter(s) shall advise the
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Company in writing that in their opinion the use of
another permitted form is of material importance to
the success of the offering, then such registration
shall be effected by the use of such other permitted
form.
(d) Registration Expenses. The Company shall,
whether or not any registration pursuant to this Agreement shall become
effective (except where a registration effected under Section 1(a) hereof is
terminated, withdrawn or abandoned at the request of the holders of the
Registrable Securities to be registered), pay any and all expenses incident to
its performance of, or compliance with, this Agreement, including, without
limitation, any allocation of Company personnel or other general overhead
expenses of the Company, or other expenses for the preparation of historical
and pro forma financial statements or other data normally prepared by the
Company in the ordinary course of its business; all registration, application,
filing, listing, transfer agent and registrar fees; fees and expenses of
compliance with securities or Blue Sky laws; printing expenses; messenger and
delivery expenses; fees and out-of-pocket expenses of counsel for the Company
and all independent certified public accountants (including the expenses of any
audit, review and/or "cold comfort" letter) and other persons retained by the
Company; the reasonable fees and out-of-pocket expenses of one counsel or firm
of counsel selected by the holders of at least 66 2/3% of the Registrable
Securities covered by the registration in question; and any fees and
disbursements of Managing Underwriters, underwriters, brokers and dealers
customarily paid by issuers of securities, excluding underwriting commissions
and discounts.
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(e) Indemnification; Contribution.
(i) The Company hereby indemnifies, to the
fullest extent permitted by law, each holder of
Registrable Securities, its officers and directors,
if any, and each person, if any, who controls such
holder within the meaning of Section 15 of the
Securities Act, against all losses, claims, damages,
liabilities (or proceedings in respect thereof) and
expenses (under the Securities Act or common law or
otherwise), joint or several, caused by any untrue
statement or alleged untrue statement of a material
fact contained in any registration statement,
prospectus (as amended or supplemented if the
Company shall have furnished any amendments or
supplements thereto) or preliminary prospectus, or
caused by any omission or alleged omission to state
therein a material fact required to be stated
therein or necessary to make the statements therein,
not misleading; provided, however, that such
indemnification shall not extend to any such losses,
claims, damages, liabilities (or proceedings in
respect thereof) or expenses which are caused solely
by any untrue statement or alleged untrue statement
contained in, or by any omission or alleged omission
from, information furnished in writing to the
Company by such holder expressly for use therein.
(ii) If the offering pursuant to any
registration statement provided for under this
Section 1 is effected by underwriters, the
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Company agrees to enter into an underwriting
agreement in customary form and substance with such
underwriters and to indemnify such underwriters,
their officers and directors, if any, and each
person, if any, who controls such underwriters
within the meaning of Section 15 of the Securities
Act to the same extent as provided in the preceding
paragraph (i) of this Section 1(e) with respect to
the indemnification of the holders of Registrable
Securities; provided, however, the Company shall not
be required to indemnity any such underwriter, or
any officer or director of such underwriter or any
person who controls such underwriter within the
meaning of Section 15 of the Securities Act, to the
extent that the loss, claim, damage, liability (or
proceedings in respect thereof) or expense for which
indemnification is sought results from such
underwriter's failure to deliver or otherwise
provide a copy of the final prospectus to the person
asserting an untrue statement or omission or alleged
untrue statement or omission at or prior to the
written confirmation of the sale of Registrable
Securities to such person, if such statement or
omission was corrected in such final prospectus.
(iii) In connection with any registration
statement with respect to which a holder of
Registrable Securities is participating, each such
holder shall furnish to the Company in writing such
information as shall be reasonably requested by the
Company for
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use in any such registration statement or prospectus
and shall indemnify severally and not jointly, to
the fullest extent permitted by law, the Company,
its officers and directors and each person, if any,
who controls the Company within the meaning of
Section 15 of the Securities Act, against any
losses, claims, damages, liabilities (or proceedings
in respect thereof) and expenses resulting from any
untrue statement or alleged untrue statement of a
material fact or any omission or alleged omission of
a material fact required to be stated or necessary
to make the statements in the registration statement
or prospectus or preliminary prospectus or any
amendment thereof or supplement thereto, not
misleading; provided, however, that each such holder
shall be liable hereunder in any such case if and
only to the extent that any such loss, claim, damage
or liability arises solely out of or is based solely
upon an untrue statement or alleged untrue statement
or omission or alleged omission made in reliance
upon and in conformity with information pertaining
to such holder, as such, furnished in writing to the
Company by such holder specifically for use in such
registration statement or prospectus; and provided,
further, however, that the liability of each holder
hereunder shall be limited solely to such amount of
any such loss, claim, damage, liability or expense
which is equal to the proportion that the public
offering price of the Registrable Securities sold by
such holder under such
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registration statement bears to the total public
offering price of all Registrable Securities sold
thereunder, which liability, in no event shall
exceed the net proceeds received by such holder from
the sale of Registrable Securities covered by such
registration statement.
(iv) If the offering pursuant to any
registration statement with respect to which holders
of Registrable Securities are participating, is
effected by underwriters, each such holder agrees to
enter into an underwriting agreement in customary
form and substance with such underwriters, and to
indemnify such underwriters, their officers and
directors, if any, and each person, if any, who
controls such underwriters within the meaning of
Section 15 of the Securities Act to the same extent
as provided in the preceding paragraph with respect
to indemnification by such holder of the Company,
but subject to the same limitation as set forth in
the proviso to paragraph (ii) of this Section 1(e)
with respect to indemnification by the Company of
such underwriters, officers, directors and
controlling persons.
(v) Any person seeking indemnification
under provision of this Section 1(e) shall, promptly
after receipt by such person of notice of the
commencement of any action, suit, claim or
proceeding, notify each party against whom
indemnification is to be sought in writing of the
commencement thereof; provided,
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however, the failure so to notify an indemnifying
party shall not relieve the indemnifying party from
any liability which it may have under this Section
1(e) (except to the extent that it has been
prejudiced in any material respect by such failure)
or from any liability which the indemnifying party
may otherwise have. In case any such action, suit,
claim or proceeding is brought against any
indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and,
to the extent it may elect by written notice
delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified
party, to assume the defense thereof with counsel
satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party
or parties shall have the right to employ its or
their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of
such indemnified party or parties unless (i) the
employment of such counsel shall have been
authorized in writing by one of the indemnifying
parties (provided that in the case of
indemnification pursuant to paragraphs (iii) or (iv)
of this Section 1(e), the employment of such counsel
shall have been authorized by not less than 66 2/3%
of the holders of Registrable Securities who are
participating in the registration in respect of
which indemnification is sought) in connection with
the defense of
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such suit, action, claim or proceeding; (ii) the
indemnifying parties shall not have employed counsel
to take charge of the defense of such action, suit,
claim or proceeding within a reasonable time after
notice of commencement of the action, suit, claim or
proceeding; or (iii) such indemnified party or
parties shall have reasonably concluded that there
may be defenses available to it or them which are
different from or additional to those available to
one or all of the indemnifying parties (in which
case the indemnifying parties shall not have the
right to direct the defense of such action, suit,
claim or proceeding on behalf of the indemnified
party or parties), in any of which events the fees
and expenses of one counsel or firm of counsel
selected by the indemnified party or parties shall
be borne by the indemnifying parties. Anything in
this paragraph (v) to the contrary notwithstanding,
an indemnifying party shall not be liable for the
settlement of any action, suit, claim or proceeding
effected without its prior written consent (which
consent shall not be unreasonably withheld). Such
indemnification shall remain in full force and
effect regardless of any investigation made by or on
behalf of a participating holder of Registrable
Securities, its officers, directors or any person,
if any, who controls such holder as aforesaid, and
shall survive the sale, transfer or other
disposition of such securities by such holder.
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(vi) If for any reason the foregoing
indemnification is unavailable, or is insufficient
to hold harmless, an indemnified party, then the
indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result
of such losses, claims, damages, liabilities or
expenses (x) in such proportion as is appropriate to
reflect the relative benefits received by the
indemnifying party on the one hand and the
indemnified party on the other hand, or (y) if the
allocation provided by clause (x) above is not
permitted by applicable law or provides a lesser sum
to the indemnified party than the amount hereinafter
calculated, in such proportion as is appropriate to
reflect not only the relative benefits received by
the indemnifying party on the one hand (taking into
consideration the fact that the registration rights
provided in this Section 1 are intended and hereby
understood to be a material inducement to the
Purchasers to purchase the Registrable Securities
and, in respect of this Agreement, constitutes good
and valuable consideration) and the indemnified
party on the other, but also the relative fault of
the indemnifying party and the indemnified party in
addition to any other relevant equitable
considerations. Notwithstanding the foregoing, no
underwriter shall be required to contribute any
amount in excess of the amount by which the
aggregate price at which the Registrable Securities
underwritten by it and distributed to the
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public exceeds the amount of any damages which such
underwriter has otherwise been required to pay by
reason of such untrue statement or omission or
alleged untrue statement or omission; and no person
guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person
who was not guilty of such fraudulent
misrepresentation. The obligation of any
underwriters to provide contribution pursuant to
this Section 1(e) shall be several and not joint in
proportion to their respective underwriting
commitments.
(f) Certain Limitations on Registration
Rights. In the case of a registration under Section 1(b), if the holders of at
least 66 2/3% of the Registrable Securities to be included therein determine to
enter into an underwriting agreement in connection therewith, or, in the case of
a registration under Section 1(a), if the holders of securities initially
requesting such registration have determined to enter into an underwriting
agreement in connection therewith, all Registrable Securities to be included in
such registration shall be subject to such underwriting agreement and no person
may participate in such registration unless such person agrees to sell such
person's securities on the basis provided in the underwriting arrangements and
completes and/or executes all questionnaires, powers of attorney,
indemnification agreements, underwriting agreements and other reasonable
documents which must be executed under the terms of such underwriting
arrangements; it being hereby acknowledged and agreed that the selection of any
Managing Underwriter(s) shall be
23
made by the holders of at least 66 2/3% of the Registrable Securities to be
registered, subject to the consent of the Company (which consent shall not be
unreasonably withheld).
(g) Reduction of Securities Included in
Registration Statement. If any Managing Underwriter shall advise the Company
and the holders of Registrable Securities in writing that, in its reasonable
judgment, the inclusion in any registration statement pursuant to Section 1 of
some or all of the Registrable Securities sought to be registered by the
holders requesting such registration creates a substantial risk that the
proceeds or price per share the Company or such holders of Registrable
Securities will derive from such registration will be materially reduced or
that the number of securities to be registered (including those sought to be
registered at the instance of the Company and any other party entitled to
participate in such registration as well as those sought to be registered by
the holders of Registrable Securities) is too large a number to be reasonably
sold, the Company shall include in such registration (to the extent of the
number of securities which the Company is so advised can be sold in such
offering):
(i) (in the case of a registration pursuant
to Section 1(a) of this Agreement), the number of
securities sought to be registered by each seller,
pro rata, among the sellers as provided in paragraph
(h) below; or
(ii) (in the case of a registration
pursuant to Section l(b) of this Agreement), (x)
First, Registrable Securities requested to be
included in such registration, pro rata, among the
holders
24
thereof as provided in paragraph (h) below, and (y)
Second, those securities sought to be registered at
the instance of the Company.
(h) With respect to the pro rata allocation
referred to in each of clause (i) and (ii) of Section 1(g) above, the number of
Registrable Securities which each holder shall be permitted to have included in
a registration pursuant to Section 1(a) or 1(b), as the case may be, shall be
determined by multiplying the total number of Registrable Securities which each
holder thereof seeks to register by a fraction, the numerator of which shall be
the sum of (i) the product of (x) the total number of shares of Series A
Preferred Stock issued by the Company to such holder, if any, and (y) $1.50;
(ii) the product of (x) the total number of shares of Series B Preferred Stock
issued by the Company to such holder, if any, and (y) $1.35; and (iii) the
total number of shares of Series C Preferred Stock issued by the Company to
such holder, if any, and (y) $2.75, and the denominator of which shall be the
sum of (i) the product of (x) the total number of shares of Series A Preferred
Stock issued to all holders of Registrable Securities who have elected to have
their securities registered pursuant to Section 1(a) or 1(b) and, in respect of
which election, the calculation pursuant to this Section 1(h) is being made,
and (y) $1.50; (ii) the product of (x) the total number of shares of Series B
Preferred Stock issued to all holders of Registrable Securities who have
elected to have their securities registered pursuant to Section 1(a) or 1(b)
and, in respect of which election, the calculation pursuant to this Section
1(h) is being made, and (y) $1.35, and (iii) the product of (x) the total
number of shares of Series C Preferred Stock issued to all holders of
Registrable Securities who have elected to have their securities registered
pursuant to Section l(a) or l(b)
25
and, in respect of which election, the calculation pursuant to this Section
1(h) is being made, and (y) $2.75; provided, however, any shares of Preferred
Stock issued to holders of Registrable Securities which shares have been
redeemed by the Company (prior to the date the pro rata allocation pursuant to
this Section 1(h) is being made), shall be excluded from the calculation of the
number of shares of Series A Preferred Stock, Series B Preferred Stock and
Series C Preferred Stock, as the case may be, in clauses (i), (ii) and (iii) of
the numerator and denominator, respectively.
(i) Limitations on Sale or Distribution of
Other Securities; Conditioning the Market. If any registration under this
Section 1 shall be in connection with an underwritten public offering, each
holder of Registrable Securities shall be deemed to have agreed by acquisition
of such Registrable Securities not to effect any public sale or distribution,
including any sale pursuant to Rule 144 under the Securities Act, of any
Registrable Securities, and to use such holder's bet efforts not to effect any
such public sale or distribution of any other Equity Security of the Company or
of any security convertible into, or exchangeable or exercisable for, any
Equity Security of the Company (other than as part of such underwritten public
offering) within 15 days prior to or 120 days after the effective date of such
registration statement, and the Company hereby also agrees to cause each holder
of any Equity Security, or of any security convertible into, or exchangeable or
exercisable for, any Equity Security of the Company purchased from the Company
at any time other than in a public offering, so to agree.
(j) Rule 144. If the Company shall have filed
with the Securities and Exchange Commission a registration statement pursuant
to the
26
requirements of Section 12 of the Exchange Act or a registration statement
pursuant to the requirements of the Securities Act, the Company agrees that it
shall timely file the reports required to be filed by it under the Securities
Act or the Exchange Act (including, without limitation, the reports under
Sections 13 and 15(d) of the Exchange Act referred to in paragraph (c)(1) of
Rule 144 under the Securities Act), and shall take such further actions as any
holder of Registrable Securities may reasonably request, all to the extent
requisite from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the resale
limitations prescribed by Rule 144 under the Securities Act as such Rule may be
amended from time to time, or otherwise pursuant to any transactional exemption
from the requirements of Section 5 of the Securities Act provided by any rule
or regulation now existing or hereinafter adopted by the Securities and
Exchange Commission. Upon the request of any holder of Registrable Securities,
the Company shall deliver to such holder a written statement as to whether it
has complied with such requirements.
(k) Nominees for Beneficial Owners. In the
event that Registrable Securities are held by a nominee for the beneficial
owner thereof, the beneficial owner thereof may, at its option, be treated as
the holder of such Registrable Securities for the purpose of any request or
other action by any holder or holders of Registrable Securities pursuant to
this Agreement (or any determination of any number or percentage of shares
constituting Registrable Securities held by any holder or holders of
Registrable Securities contemplated by this Agreement).
(l) Most Favored Nations. If at any time from
and after the date hereof, the Company grants to any Purchaser any demand,
"piggyback" or other
27
similar registration rights with respect to any Registrable Securities which
rights are more favorable to such Purchaser than those set forth in this
Section 1, then the Company shall forthwith grant identical demand, "piggyback"
or such other similar registration rights to all other purchasers of
Registrable Securities.
2. PREEMPTIVE RIGHTS.
(a) Prior to any issuance, sale or exchange of
its Equity Securities, the Company shall offer to each Purchaser (by written
notice) the right, for a period of 20 days, to purchase all of such securities
for cash at an amount equal to the price or other consideration for which such
securities are to be issued; provided, however, that the Purchasers' preemptive
rights pursuant to this Paragraph 2 shall not apply to securities issued (i)
upon the conversion of any shares of the Preferred Stock; (ii) as a stock
dividend, stock split or similar subdivision of shares of Preferred Stock or
Common Stock, so long as the securities issued pursuant to such stock dividend,
stock split or subdivision consist exclusively of additional shares of
Preferred Stock or Common Stock; (iii) pursuant to subscriptions, warrants,
options, rights, contracts or commitments which are outstanding on the date
hereof; (iv) pursuant to an effective registration statement under the
Securities Act in an underwritten public offering; (v) as the sole
consideration for the acquisition (whether by merger, consolidation or
otherwise) by the Company of all or substantially all the capital stock or
assets of any other person; (vi) pursuant to any employee stock option,
incentive or other benefit plant provided that the number of shares issued
thereunder do not exceed, in the aggregate, 259,007 shares (adjusted
appropriately to reflect stock splits, stock dividends, subdivisions of shares
and the like with respect to the Common Stock) less
28
the number of shares (adjusted as aforesaid) issued pursuant to options
outstanding on the date of this Agreement pursuant to clause (iii) above; (vii)
(at any time and from time to time) as all or a portion of the consideration
paid by the Company to one or more of its officers, key employees or
consultants for services furnished to the Company, provided that the number of
shares so issued (whether at one time or from time to time) does not exceed, in
the aggregate, 35,078 shares; and (viii) upon the exercise of any right issued
in a manner not in violation of the terms of this Paragraph 2. The Company's
written notice to the Purchasers shall describe the securities proposed to be
issued, sold or exchanged by the Company and shall specify the number, price
and payment terms thereof. Each Purchaser may accept the Company's offer as to
the full number of securities offered to it or any lesser number, by written
notice furnished to the Company prior to the expiration of the aforesaid 20-
day period, in which event, the Company shall sell promptly and such Purchaser
shall buy, upon the terms specified, the number of securities agreed to be
purchased by such Purchaser.
(b) Notwithstanding the foregoing, if the
Purchasers agree, in the aggregate, to purchase more than the full number of
securities offered by the Company, then each Purchaser desiring to accept the
Company's offer shall be allocated such amount of securities which is obtained
by multiplying the number of securities which such Purchaser has notified the
Company that it intends to purchase by a fraction, the numerator of which shall
be the sum of (i) the product of (x) the total number of shares of Series A
Preferred Stock issued by the Company to such holder, if any, and (y) $1.50;
(ii) the product of (x) the total number of shares of Series B
29
Preferred Stock issued by the Company to such holder, if any, and (y) $1.35;
and (iii) the total number of shares of Series C Preferred Stock issued by the
Company to such holder, if any, and (y) $2.75, and the denominator of which
shall be the sum of (i) the product of (x) the total number of shares of Series
A Preferred Stock issued to all holders of Registrable Securities who have
notified the Company that they intend to exercise their preemptive rights, and
(y) $1.50; (ii) the product of (x) the total number of shares of Series B
Preferred Stock issued to all holders of Registrable Securities who have
notified the Company that they intend to exercise their preemptive rights, and
(y) $1.35, and (iii) the product of (x) the total number of shares of Series C
Preferred Stock issued to all holders of Registrable Securities who have
notified the Company that they intend to exercise their preemptive rights, and
(y) $2.75; provided, however, any shares of Preferred Stock issued to holders
of Registrable Securities which shares have been redeemed by the Company (prior
to the date the pro rata allocation pursuant to this Section 2(b) is being
made), shall be excluded from the calculation of the number of shares of Series
A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock, as
the case may be, in clauses (i), (ii) and (iii) of the numerator and
denominator, respectively; and provided, further, however, no Purchaser shall
be allocated more than the number of securities which such Purchaser agreed to
purchase and, in cases covered by this sentence, all Purchasers shall be
allocated among them the full number of securities offered by the Company. The
Company shall be free at any time prior to the expiration of the 60-day period
commencing on the day next succeeding the expiration of the aforementioned
20-day notice period, to offer and sell to any third party or parties the
number of such
30
securities, if any, not agreed by the Purchasers to be purchased by them, at a
price and on payment terms no less favorable to the Company than those
specified in such notice of offer to the Purchasers. However, if such third
party sale or sales are not consummated within such 60-day period, the Company
shall not be permitted to sell the securities, if any, which have been
purchased within such 60-day period without again complying with the preemptive
rights procedure specified in this Section 2.
(c) The rights of the Purchasers set forth in
this Section shall terminate at such time as the Company shall effect the
initial public offering, issuance, sale and delivery of securities pursuant to
an effective registration statement under the Securities Act.
3. NOTICES.
All notices required to be provided pursuant to
Sections 1 or 2 of this Agreement shall be in writing, either delivered in
person with receipt acknowledged or sent by registered or certified mail,
return receipt requested, postage prepaid, and shall be effective upon the
receipt thereof by the intended recipient.
4. ENTIRE AGREEMENT.
This Agreement, together with all annexes, schedules
and exhibits hereto, represents the entire agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes any
and all prior oral and written contracts, arrangements and understandings among
the parties hereto with respect to such subject matter; and can be amended,
supplemented or changed, and any provision hereof can be waived, only by a
written instrument making specific reference to this Agreement signed by the
Company on the one hand and the holders
31
of at least 66 2/3% of the aggregate number of outstanding shares of Preferred
Stock on the other hand.
5. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns; provided, however, that no party may assign its rights hereunder
without the prior written consent of the other parties hereto, except that
without obtaining such consent, (i) each Purchaser may assign its rights and
obligations hereunder to any of its subsidiaries or Affiliates, and (ii) the
shares of Common Stock issued or issuable upon the conversion of the Preferred
Stock are transferable, subject to compliance with applicable federal and state
securities laws.
6. PARAGRAPH HEADINGS.
The paragraph headings contained in this Agreement
are for general reference purposes only and shall not affect in any manner the
meaning or interpretation of the terms or other provisions of the this
Agreement.
7. APPLICABLE LAW.
This Agreement shill be governed by, construed and
enforced in accordance with the laws of the State of New York, applicable to
contracts to be made, executed, delivered and performed wholly within such
state, but without regard to the conflicts of law principles of such state.
8. SEVERABILITY.
If at any time subsequent to the date hereof, any
provision of this Agreement shall be held by any court of competent
jurisdiction to be illegal, void or
32
unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall have no effect upon and
shall not impair the enforceability of any other provision of this Agreement.
9. EQUITABLE REMEDIES.
The parties hereto agree that irreparable harm would
occur in the event that any of the agreements and provisions of this Agreement
were not performed fully by the parties hereto in accordance with their
specific terms or conditions or were otherwise breached, and that money damages
are an inadequate remedy for breach of this Agreement because of the difficulty
of ascertaining and quantifying the amount of damage that will be suffered by
the parties hereto in the event that this Agreement is not performed in
accordance with its terms or conditions or is otherwise breached. It is
accordingly hereby agreed that the parties hereto shall be entitled to an
injunction or injunctions to restrain, enjoin and prevent breaches of this
Agreement by the other parties and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, such remedy being in addition to and not in lieu of, any other
rights and remedies to which the other parties are entitled to at law or in
equity.
10. NO WAIVER.
The failure of any party at any time or times to
require performance of any provision hereof shall not affect the right at a
later time to enforce the same. No waiver by any party of any condition, and no
breach of any provision, term, covenant, representation or warranty contained
in this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be construed
33
as a further or continuing waiver of any such condition or of the breach of any
other provision, term, covenant, representation or warranty of this Agreement.
11. COUNTERPARTS.
This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall
constitute but one and the same original instrument.
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By:________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and
Chief Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By: /s/ ▇▇▇▇▇▇▇ ▇. Lure, Jr.
_________________________________
Name: ▇▇▇▇▇▇▇ ▇. Lure, Jr.
Title: General Partner
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
34
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By:_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and
Chief Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By: /s/ ▇▇▇▇▇▇▇ ▇. Cuelter
__________________________________
Name:
Title:
[DEBENTUREHOLDERS]
By:________________________________
Name:
35
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE)
IN WITNESS WHEREOF the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
___________________________________
Name: ▇▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
36
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
___________________________________
Name: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
37
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By:_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇, Trustee
___________________________________
Name: Tashlik & Associates P.C.,
Defined Benefit Plan
38
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
___________________________________
Name: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
39
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
Name: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
40
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
___________________________________
Name: Mr. & ▇▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
41
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By:_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
___________________________________
Name: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
42
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By:_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
___________________________________
Name: Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
43
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By:_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
___________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Trust
44
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By:_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
___________________________________
Name: JDS Realty, Profit Plan
45
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By:_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Chairman
___________________________________
Name: JDS Realty Corp.
46
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By:_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By: /s/ ▇▇▇▇▇▇▇ ▇. Cuelter
__________________________________
Name:
Title:
[DEBENTUREHOLDERS]
By:___________________________________
Name:
47
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By:_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By: /s/ ▇▇▇▇▇▇▇ ▇. Cuelter
__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ J. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
48
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
49
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________________
Name: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
50
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
___________________________________
Name: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
51
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇.
___________________________________
Name: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
52
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
53
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
Name: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
54
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
___________________________________
Name: Mr. ▇▇▇ ▇▇▇▇▇▇▇▇
55
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
___________________________________
Name: ▇▇▇. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
56
[REGISTRATION AND PREEMPTIVE RIGHTS AGREEMENT SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Agreement, as of the day and year first above written.
VIDEO BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_________________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and Chief
Executive Officer
NEW YORK STATE BUSINESS
VENTURE PARTNERSHIP
By:_________________________________
Name:
Title:
AMERICAN RESEARCH &
DEVELOPMENT II, L. P.
By:__________________________________
Name:
Title:
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇, Trustee
___________________________________
Name: Tashlik & Associates P.C.,
Defined Benefit Plan
57