EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made this 22nd day
of January, 1999, by and among Jutvision Corporation, a Delaware corporation
(the "Corporation"), and the persons whose names are listed as purchasers on the
signature pages hereof (with its permitted successors and assigns, individually,
the "Purchaser" and collectively, the "Purchasers").
WHEREAS, the Purchasers have subscribed for 106,383 shares of Series A-l
Convertible Preferred Stock of the Corporation, $.001 par value per share (the
"Shares"), each pursuant to the terms of a Share Subscription, Right of First
Refusal and Voting Agreement of even date herewith (the "Subscription
Agreements");
WHEREAS, pursuant to the terms of the Subscription Agreements, the
Corporation has on the date hereof issued the Shares to the Purchasers;
WHEREAS, all of the Shares are "restricted securities" within the meaning
of the Securities Act of 1933, as amended;
WHEREAS, the Purchasers desire to be able to transfer the Shares from time
to time by making public offers and sales of the Shares; and
WHEREAS, the Corporation is willing to accommodate the Purchasers' desire
to sell the Shares by causing the Shares to be registered for resale from time
to time on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the Subscription Agreements and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
SECTION 1. Certain Definitions. As used in this Agreement, the following
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terms shall have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the voting common stock of the Corporation, $.001
par value per share.
"Registrable Shares" shall mean (i) shares of Common Stock issued or
issuable upon conversion of the Shares and (ii) any other shares of Common Stock
issued with respect to the Shares by reason of stock dividends, stock splits,
recapitalizations, reorganizations or similar corporate action.
"Registration Expenses" and "Selling Expenses" shall mean the expenses
described in Section 5.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, as the same shall be in
effect from time to time.
SECTION 2. Piggy-Back Registration. (a) If the Corporation for itself or
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any of its security holders shall, at any time or times prior to the time at
which all of the Registrable Shares are transferable in one transaction pursuant
to Rule 144 under the Securities Act, without regard
to the limitations contained in Rule 144(e) on the amount of Registrable Shares
that may be sold pursuant thereto, determine to register under the Securities
Act any shares of its capital stock or other securities (other than the
registration of an offer, sale or other disposition of securities (i) to
employees of, or other persons providing services to, the Corporation or any
subsidiary pursuant to an employee or similar benefit plan, registered on
Form S-8, a comparable or successor form or another form which is used solely
for the purpose of registering such plan, or (ii) relating to a merger,
acquisition or other transaction of the type described in Rule 145 under the
Securities Act or comparable or successor rule, register on Form S-4 or similar
or successor forms), the Corporation will notify the Purchasers of such
determination, and, upon written request received from the Purchasers by the
Corporation within ten (10) business days after the notice is given by the
Corporation, the Corporation will use its reasonable best efforts, as soon as
practicable thereafter, to cause any of the Registrable Shares specified by the
Purchasers to be included in such registration statement to the extent and under
the conditions such registration is permissible under the Securities Act.
Notwithstanding the foregoing, in the event the proposed registration is in
whole or in part an underwritten public offering and if the managing
underwriter(s) determine(s) and advises the Corporation that the inclusion of
some or all of the Registrable Shares requested to be included in the
registration concurrently with the securities being registered by the
Corporation would interfere with the successful marketing of such securities,
then the number of Registrable Shares otherwise to be included in the
registration statement by the Purchasers shall be reduced to the required level
(i) first, in the event that the shares of capital stock being registered in
such proposed registration include original issuance shares of the Corporation
or shares of capital stock to be sold in connection with a securityholder's
exercise of demand registration rights or piggyback registration rights pursuant
to agreements entered into after the date hereof between the Corporation and
certain of its securityholders which provide that such securityholders may
exercise either demand or piggyback registration rights, by reducing or
excluding the Registrable Shares proposed to be sold by the Purchasers; and (ii)
second, by reducing the participation of the Purchasers in such offering pro
rata among such Purchasers requesting such registration, based upon the number
of Registrable Shares then owned by such Purchasers. Notwithstanding the
foregoing provisions, the Corporation may withdraw any registration statement
referred to in this Section 2(a) without thereby incurring any liability to any
Purchaser. If any Purchaser disapproves of the terms of any such underwriting,
such Purchaser may elect to withdraw therefrom by written notice to the
Corporation and the managing underwriter(s). Any Registrable Shares withdrawn
from such underwriting shall be withdrawn from such registration.
SECTION 3. Conditions of Obligation to Register Registrable Shares. As
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conditions to the Corporation's obligation hereunder to cause a registration
statement to be filed or Registrable Shares to be included in a registration
statement, the Purchasers shall (a) provide such information and execute such
documents as may reasonably be required in connection with such registration,
(b) agree to sell their Registrable Shares on the basis provided in any
underwriting arrangements and (c) complete and execute all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements, which arrangements
shall not be inconsistent herewith.
SECTION 4. Registration Procedures. If and whenever the Corporation is
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required by the provisions of this Agreement to use its reasonable best efforts
to include any of the Registrable Shares in a registration statement filed under
the Securities Act, the Corporation shall, as expeditiously as possible:
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4.1 Prepare and file with the Commission a registration statement
with respect to such Registrable Shares and use its reasonable best efforts
to cause such registration statement to become and remain effective.
4.2 Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for not more than thirty (30) days from the date of its
effectiveness (plus such additional time during which the Purchasers must
cease making offers and sales, as provided in Section 4.5) or (unless
otherwise required by the Securities Act) until the Registrable Shares
covered thereunder have been sold, whichever is earlier.
4.3 Furnish to the Purchasers such reasonable number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus), in conformity with the requirements of the
Securities Act, and such other documents as any Purchaser may reasonably
request in order to facilitate the disposition of its Registrable Shares.
4.4 Use its reasonable best efforts to register or qualify the
Registrable Shares covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the managing
underwriter(s) shall reasonably request, and use its best efforts to do any
and all other acts and things which may be necessary or advisable so to
register or qualify the Registrable Shares to enable the Purchasers to
consummate the disposition of the Registrable Shares owned by the
Purchasers in such jurisdictions during the period covered in Section 4.2;
provided that the Corporation shall not be obligated to qualify to do
business in any jurisdiction where it is not then so qualified or to take
any action which would subject it to the service of process in suits other
than those arising out of the offer or sale of the securities covered by
the registration statement in any jurisdiction where it is not then so
subject.
4.5 Notify the Purchasers of any Registrable Shares covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any
event as a result of which the prospectus contained in such registration
statement, as then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of the
circumstances then existing. Each Purchaser agrees upon receipt of such
notice, forthwith to cease making offers and sales of the Registrable
Shares pursuant to such registration statement or deliveries of the
prospectus contained therein for any purpose and to return to the
Corporation, for modification and exchange, the copies of such prospectus
not theretofore delivered by such Purchaser; provided, that the Corporation
shall forthwith prepare and furnish, after securing such approvals as may
be necessary, to the Purchasers a reasonable number of copies of any
supplement to or amendment of such prospectus that may be necessary so
that, as thereafter delivered to the buyers of such Registrable Shares,
such prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances then existing.
4.6 Promptly notify the Purchasers of any stop order or similar
proceeding initiated by state or Federal regulatory bodies and use its best
efforts to take all necessary steps expeditiously to remove such stop order
or similar proceeding.
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4.7 Furnish, at the reasonable request of any Purchaser, in the event
that such Purchaser is requesting registration of Registrable Shares
pursuant to Section 2, on the date that such Registrable Shares are
delivered to the underwriter for sale in connection with a registration
pursuant to Section 2, if such securities are being sold through
underwriters, or on the date that the registration statement with respect
to such securities becomes effective, if such securities are not sold
through underwriters: (a) an opinion, dated as of such date, of the counsel
representing the Corporation for the purposes of such registration in form
and substance as is customarily given to underwriters, in an underwritten
public offering, addressed to the underwriters, if any, and to such
Purchaser; and (b) a letter, dated as of such date, from the independent
certified public accountants of the Corporation, in form and substance as
is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the
underwriters, if any, and, if none, then to such Purchaser.
SECTION 5. Description of Expenses. All expenses incurred by the
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Corporation in complying with any of the foregoing provisions of this Agreement,
including, without limitation, all Federal (including Commission and National
Association of Securities Dealers, Inc.) and state registration qualification
and filing fees, printing expenses, any premium involved in securing a policy or
policies of registration insurance (but only if the Corporation in its sole
discretion shall choose to secure such a policy or policies, such policy or
policies to be herein referred to as "registration insurance"), fees and
disbursements of counsel for the Corporation, and accountants fees and expenses
(but excluding the compensation of regular employees of the Corporation which
shall be paid in any event by the Corporation), incident to or required by any
such registration are herein called "Registration Expenses." All underwriting
discounts, selling commissions and transfer taxes applicable to the sale of
Registrable Shares hereunder are herein called "Selling Expenses."
If the Corporation is required by the provisions of this Agreement to use
its reasonable best efforts to effect the registration of any of the Registrable
Shares under the Securities Act, all Selling Expenses incurred in connection
with registration statements covering Registrable Shares shall be borne by the
Purchasers participating in such registration, pro rata, and all Registration
Expenses shall be borne by the Corporation.
SECTION 6. Indemnification; Underwriting Agreements.
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Registrations. In the event that the Corporation registers any shares under
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the Securities Act pursuant to the provisions of this Agreement:
6.1 The Corporation agrees to indemnify and hold harmless each
Purchaser against any and all losses, claims, damages, liabilities or
expenses, joint or several, arising out of or based upon any violation of
the Securities Act, the Securities Exchange Act of 1934, as amended, any
rules and regulations promulgated thereunder or any untrue statement or
alleged untrue statement of a material fact in any related registration
statement, prospectus, offering circular, notification or other document or
any omission or alleged omission of any material fact required to be stated
therein or necessary to make the statements therein not misleading, unless
such statement or omission was made in reliance upon a statement in writing
furnished by or on behalf of such Purchaser for inclusion therein or an
omission or failure by such Purchaser to furnish any statement with respect
to such Purchaser required to be included therein. Promptly after receipt
by any Purchaser of notice of the commencement of any action in respect of
which
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indemnity may be sought against the Corporation, such Purchaser shall
notify the Corporation in writing of the commencement thereof, and, subject
to the provisions hereinafter stated, receipt of such notice and such
Purchaser's reasonable cooperation, the Corporation shall assume the
defense of such action (including the employment of counsel, who shall be
counsel reasonably satisfactory to such Purchaser, and the payment of
expenses and such counsel's fees) insofar as such action shall relate to
any alleged liability in respect of which indemnity may be sought against
the Corporation. Such Purchaser shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but
the fees and expenses of such counsel shall not be at the expense of the
Corporation unless the employment of such counsel has been specifically
authorized by the Corporation or unless such Purchaser shall have in good
faith reasonably concluded that there may be a conflict of interest between
the Corporation and such Purchaser in the conduct of the defense of the
action. In connection with any offering under this Agreement which is to be
underwritten, the Corporation further agrees to enter into an underwriting
agreement in usual and standard form, reasonably satisfactory to the
Purchasers, respecting such offering; provided that the terms of such
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underwriting agreement shall not be inconsistent or conflict with the
provisions of this Agreement.
6.2 The obligations of the Corporation under this Agreement are
subject to the following conditions, which each Purchaser hereby agrees to
fulfill: (a) such Purchaser shall agree, in writing, prior to the filing of
such registration or qualification, and hereby does agree, to indemnify and
hold harmless the Corporation, each person, if any, who controls the
Corporation within the meaning of the Securities Act and the officers and
directors of the Corporation, against any and all losses, claims, damages,
liabilities or expenses arising out of or based upon any untrue statement
or alleged untrue statement of a material fact in any related registration
statement, prospectus, offering circular, notification or other document or
alleged omission of any material fact required to be stated therein or
necessary to make the statements therein not misleading, but only with
reference to statements or omissions made in reliance upon a statement in
writing furnished by or on behalf of such Purchaser for inclusion therein
and with reference to statements or omissions made in reliance upon an
omission or failure by such Purchaser to furnish any statement with respect
to such Purchaser required to be included therein and (b) if such
registration or qualification relates to an offering which is to be
underwritten, that such Purchaser enters into an underwriting agreement in
usual and standard form respecting such offering; provided, further, that
the terms of such underwriting agreement shall not be inconsistent or
conflict with the provisions of this Agreement. Promptly after receipt of
notice of the commencement of any action in respect of which indemnity may
be sought against a Purchaser, the Corporation will notify such Purchaser
in writing of the commencement thereof, and such Purchaser shall, subject
to the provisions hereinafter stated, assume the defense of such action
(including the employment of counsel, who shall be counsel reasonably
satisfactory to the Corporation, and the payment of expenses and such
counsel's fees) insofar as such action shall relate to the alleged
liability in respect of which indemnity may be sought against such
Purchaser. The Corporation and each such director, officer, or controlling
person shall have the right to employ separate counsel in any such action
and to participate in the defense thereof, but the fees and expenses of
such counsel shall not be at the expense of such Purchaser unless
employment of such counsel has been specifically authorized by such
Purchaser or unless an Indemnified Party (as defined in Section 6.3, below)
shall have in good faith reasonably concluded that there may be a conflict
of interest between the Indemnified Party and such Purchaser in the conduct
of the defense of the action.
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6.3 A party required to indemnify another party pursuant to this
Section 6 ("Indemnifying Party") shall not be liable for any settlement of
any action or claim relating to such liability or expense effected without
its consent, but if any settlement is effected with its consent or if a
final judgment for the plaintiff is entered in any such action, such
Indemnifying Party agrees to indemnify and hold harmless the party so
indemnified ("Indemnified Party") from and against any loss or liability by
reason of any such settlement or judgment. The Indemnifying Party shall
indemnify the Indemnified Party for expenses, including but not limited to
fees and disbursements of counsel, incurred by the Indemnified Party in
connection with the indemnification proceeding as such expenses are
incurred.
SECTION 7. Intentionally omitted.
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SECTION 8. Market Stand-off. Each Purchaser agrees, if requested by the
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Corporation and/or the representative of the underwriters underwriting an
offering of the Common Stock (or other securities) of the Corporation, not to
sell or otherwise transfer or dispose of any Registrable Shares held by such
Purchaser during the one hundred and eighty (180) day period following the
effective date of a registration statement of the Corporation filed under the
Securities Act.
Such agreement shall be in writing in a form satisfactory to the
Corporation and such representative. The Corporation may impose stop-transfer
instructions with respect to the shares (or securities) subject to the foregoing
restriction until the end of said one hundred and eighty (180) day period.
SECTION 9. Notices. All notices, requests, consents and other
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communications hereunder shall be in writing, shall be addressed to the
receiving party's address set forth below or to such other address as a party
may designate by notice hereunder, and shall be either (i) delivered by hand,
(ii) made by telecopy or facsimile transmission, (iii) sent by recognized
overnight courier, or (iv) sent by registered or certified mail, return receipt
requested, postage prepaid:
If to the Corporation:
Jutvision Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
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With a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
If to a Purchaser at such Purchaser's address set forth in the Company
shareholder registry.
All notices, requests, consents and other communications hereunder shall be
deemed to have been received (i) if by hand, at the time of the delivery thereof
to the receiving party at the address of such party set forth above or as so
designated, (ii) if made by telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service or (iv) if sent by registered or
certified mail, on the fifth business day following the day such mailing is
made.
SECTION 10. Entire Agreement. This Agreement embodies the entire agreement
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and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral or written agreements and understandings
relating to the subject matter hereof. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this Agreement
shall affect, or be used to interpret, change or restrict, the express terms and
provisions of this Agreement.
SECTION 11. Modifications and Amendments. The terms and provisions of this
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Agreement may be amended, modified, supplemented or waived only by written
agreement executed by all parties hereto.
SECTION 12. No Waiver of Rights, Powers and Remedies. No failure or delay
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by a party hereto in exercising any right, power or remedy under this Agreement,
and no course of dealing between the parties hereto, shall operate as a waiver
of any such right, power or remedy of the party. No single or partial exercise
of any right, power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right, power or
remedy, shall preclude such party from any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder. The election of any
remedy by a party hereto shall not constitute a waiver of the right of such
party to pursue other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party receiving such
notice or demand to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the party giving such
notice or demand to any other or further action in any circumstances without
such notice or demand. The terms and provisions of this Agreement may be waived,
or consent for the departure therefrom granted, only by written document
executed by the party entitled to the benefits of such terms or provisions. No
such waiver or consent shall be deemed to be or shall constitute a waiver or
consent with respect to any other terms or provisions of this Agreement, whether
or not similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
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SECTION 13. Assignment. Neither this Agreement, nor any right or obligation
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hereunder, may be assigned by any of the parties hereto without the prior
written consent of the other parties.
SECTION 14. Parties in Interest. This Agreement shall be binding upon and
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inure solely to the benefit of each party hereto and their permitted assigns,
and nothing in this Agreement, express or implied, (i) is intended to confer
upon any other person any rights or remedies of any nature whatsoever under or
by reason of this Agreement or (ii) shall be construed to create any rights or
obligations except among the parties hereto, and no person shall be regarded as
a third-party beneficiary of this Agreement.
SECTION 15. Governing Law. This Agreement and the rights and obligations of
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the parties hereunder shall be construed in accordance with and governed by the
internal law of the State of Delaware, without giving effect to the conflicts of
law principles thereof.
SECTION 16. Severability. In the event that any court of competent
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jurisdiction shall finally determine that any provision, or any portion thereof,
contained in this Agreement shall be void or unenforceable in any respect, then
such provision shall be deemed limited to the extent that such court determines
it enforceable, and as so limited shall remain in full force and effect. In the
event that such court shall determine that any such provision, or portion
thereof, is wholly unenforceable, the remaining provisions of this Agreement
shall nevertheless remain in full force and effect.
SECTION 17. Headings and Captions. The headings and captions of the various
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subdivisions of this Agreement are for convenience of reference only and shall
in no way modify, or affect, or be considered in construing or interpreting the
meaning or construction of any of the terms or provisions hereof.
SECTION 18. Enforcement. Each of the parties hereto acknowledges and agrees
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that the rights acquired by each party hereunder are unique and that irreparable
damage would occur in the event that any of the provisions of this Agreement to
be performed by the other parties were not performed in accordance with their
specific terms or were otherwise breached. Accordingly, in addition to any other
remedy to which the parties hereto are entitled at law or in equity, each party
hereto shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement by the other parties and to enforce specifically the terms and
provisions hereof in any federal or state court of competent jurisdiction.
SECTION 19. Expenses. Except as expressly provided in Section 5 hereof,
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each of the parties hereto shall pay its own fees and expenses (including the
fees of any attorneys, accountants, appraisers or others engaged by such party)
in connection with this Agreement and the transactions contemplated hereby
whether or not the transactions contemplated hereby are consummated.
SECTION 20. Publicity. No party hereto may issue any press release or
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otherwise make any public statement with respect to the execution of, or the
transactions contemplated by, this Agreement without the prior written consent
of the other parties hereto, except as may be required by applicable law. Prior
to making any public disclosure so required by applicable law, the disclosing
party shall give the other parties a copy of the proposed disclosure and
reasonable opportunity to prescribe or limit the same.
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SECTION 21. Counterparts. This Agreement may be executed in one or more
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counterparts, and by the parties hereto in separate counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first set forth above.
JUTVISION CORPORATION
By:________________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
PURCHASERS
By:________________________________________
Name:
Title:
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