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EXHIBIT 4.1
VIDEO NETWORK COMMUNICATIONS, INC.
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SUBSCRIPTION AGREEMENT
AND
INVESTOR INFORMATION STATEMENT
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INSTRUCTIONS
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IMPORTANT: PLEASE READ CAREFULLY BEFORE SIGNING.
SIGNIFICANT REPRESENTATIONS ARE CONTAINED IN THIS DOCUMENT.
THERE ARE TWO AGREEMENTS ATTACHED. BOTH AGREEMENTS
NEED TO BE REVIEWED, COMPLETED AND EXECUTED AS FOLLOWS:
1. Fill in the missing information on Page 1.
2. Individual Investors must complete Question 7.7 and sign the signature page
on Pages 4 and 8.
3. Entity Investors must complete Question 7.8 (please note, persons affiliated
with the entity may be required to complete Question 7.7 and sign on page 4)
and additionally sign the signature page on Page 9.
DELIVER THE EXECUTED AGREEMENTS TO:
EARLYBIRDCAPITAL, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTENTION: INVESTMENT BANKING,
ALONG WITH PAYMENT FOR THE SECURITIES SUBSCRIBED FOR.
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Print Name of Subscriber
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SUBSCRIPTION AGREEMENT AND INVESTOR INFORMATION STATEMENT
IMPORTANT: PLEASE REFER TO SCHEDULE 1 COMMENCING ON PAGE 10 WHEN REVIEWING THIS
DOCUMENT. THE SCHEDULE IS INCORPORATED HEREIN AND MADE A PART HEREOF.
The Company and the Investor hereby agree as follows:
1. SUBSCRIPTION FOR SECURITIES. I (sometimes referred to herein as
the "Investor") hereby subscribe for and agree to purchase $__________ of the
securities being offered by VIDEO NETWORK COMMUNICATIONS, INC. ("VNCI" or
"Company") described on SCHEDULE 1 hereto ("Securities") upon the terms and
conditions of the offering ("Offering") set forth in this Agreement and SCHEDULE
1. EarlyBirdCapital, Inc. ("EarlyBirdCapital" or the "Placement Agent") is
acting as the exclusive placement agent for the offering.
2. OFFERING PERIOD. The Securities are currently being offered by the
Company through the date set forth on SCHEDULE 1 ("Termination Date").
3. INVESTOR DELIVERY OF DOCUMENTS AND PAYMENT. I hereby tender to
EarlyBirdCapital, as placement agent for the Company (i) the full purchase price
by check or wire in accordance with the instructions set forth on SCHEDULE 1,
(ii) two manually executed copies of this Subscription Agreement and (iii) the
NASD Questionnaire. Prior to the earlier of a Closing (as defined in Section 5
hereof) or the Termination Date, my check or wire transfer will be held by
Continental Stock Transfer & Trust Company, as escrow agent in a non-interest
bearing escrow account subject to the terms and conditions herein and in the
escrow agreement between Continental Stock Transfer & Trust Company, as escrow
agent and the Company. If the Company does not receive and accept the
subscriptions required to have a Closing as set forth on SCHEDULE 1 by the
Termination Date, my payment will be returned to me without interest or
deduction.
4. ACCEPTANCE OR REJECTION OF SUBSCRIPTION. The Company and
EarlyBirdCapital have the right to reject this subscription for the Securities,
in whole or in part for any reason and at any time prior to the Closing,
notwithstanding prior receipt by me of notice of acceptance of my subscription.
In the event of the rejection of this subscription, my payment will be returned
promptly to me without interest or deduction and this Subscription Agreement
will have no force or effect. The Securities subscribed for herein will not be
deemed issued to or owned by me until two copies of this Subscription Agreement
have been executed by me and countersigned by the Company and the Closing with
respect to my subscription has occurred.
5. CLOSING AND DELIVERY OF SECURITIES. The closing of the Offering
("Closing") may occur at the office of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ at any time
prior to the Termination Date and after the sale by the Company of the required
amount as set forth on SCHEDULE 1, as determined jointly by the Company and
EarlyBirdCapital. In the event my subscription is accepted and there is a
Closing, my payment will be released to the Company and the certificates
representing the Securities will be delivered promptly to me, along with a fully
executed version of this Agreement.
6. OFFERING TO ACCREDITED INVESTORS. This offering is limited to
accredited investors as defined in Section 2(15) of the Securities Act of 1933,
as amended ("Securities Act"), and Rule 501 promulgated thereunder, and is being
made without registration under the Securities Act in reliance upon the
exemptions contained in Sections 3(b), 4(2) and/or 4(6) of the Securities Act
and
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applicable state securities laws. As indicated by my responses hereof, the
Investor is an "accredited investor" within the meaning of Section 2(15) of the
Securities Act and Rule 501 promulgated thereunder.
7. INVESTOR REPRESENTATIONS AND WARRANTIES. I acknowledge, represent
and warrant to the Company and EarlyBirdCapital as follows:
7.1 Obligations of the Company and the Investor. The Company
has no obligation to me other than as set forth in this Agreement, including but
not limited to the obligations described in Section 7.1 of SCHEDULE 1. I have
read and agree to the restrictions set forth in Section 5 of SCHEDULE 1. I am
aware that, except for any rescission rights that may be provided under
applicable laws, I am not entitled to cancel, terminate or revoke this
subscription, and any agreements made in connection herewith will survive my
death or disability. In order to induce the Company to issue and sell the
Securities to me, I represent and warrant that the information relating to me
stated herein is true and complete as of the date hereof and will be true and
complete as of the date on which my purchase of Securities becomes effective.
If, prior to the final consummation of the offer and sale of the Securities,
there should be any change in such information or any of such information
becomes incorrect or incomplete, I agree to notify the Company and supply the
Company promptly with corrective information.
7.2 Information About the Company.
(a) I have read the Confidential Private Placement
Memorandum dated August 8, 2000 relating to the Offering ("Memorandum") and all
exhibits listed therein and fully understand the Memorandum, including the
Section entitled "Risk Factors" and its exhibits. I have been given access to
full and complete information regarding the Company and have utilized such
access to my satisfaction for the purpose of verifying the information included
in the Memorandum and exhibits thereto, and I have either met with or been given
reasonable opportunity to meet with officers of the Company for the purpose of
asking reasonable questions of such officers concerning the terms and conditions
of the offering of the Securities and the business and operations of the Company
and all such questions have been answered to my full satisfaction. I have also
been given an opportunity to obtain any additional relevant information to the
extent reasonably available to the Company. I have received all information and
materials regarding the Company that I have reasonably requested. After my
reading of the materials about the Company, I understand that there is no
assurance as to the future performance of the Company.
(b) I have received no representation or warranty from
the Company or EarlyBirdCapital or any of their respective officers, directors,
employees or agents in respect of my investment in the Company. I am not
participating in the offer as a result of or subsequent to: (i) any
advertisement, article, notice or other communication published in any
newspaper, magazine or similar media or broadcast over television, radio or the
Internet or (ii) any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
7.3 Speculative Investment. I am aware that the Securities are
a speculative investment that involves a high degree of risk including, but not
limited to, the risk of losses from operations of the Company and the total loss
of my investment. I have such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an investment in
the Securities and have obtained, in my judgment, sufficient information from
the Company to evaluate the merits and risks of an investment in the Company. I
have not utilized any person as my purchaser representative (as defined in
Regulation D) in connection with evaluating such merits and risks and have
relied solely upon my own investigation in making a decision to invest in the
Company. I have been urged to seek independent advice from my professional
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advisors relating to the suitability of an investment in the Company in view of
my overall financial needs and with respect to the legal and tax implications of
such investment. I believe that the investment in the Securities is suitable for
me based upon my investment objectives and financial needs, and I have adequate
means for providing for my current financial needs and contingencies and have no
need for liquidity with respect to my investment in the Company. The investment
in the Company does not constitute all or substantially all of my investment
portfolio.
7.4 Restrictions on Transfer. I understand that (i) the
Securities have not been registered under the Securities Act or the securities
laws of certain states in reliance on specific exemptions from registration,
(ii) no securities administrator of any state or the federal government has
recommended or endorsed this offering or made any finding or determination
relating to the fairness of an investment in the Company, and (iii) the Company
is relying on my representations and agreements for the purpose of determining
whether this transaction meets the requirements of the exemptions afforded by
the Securities Act and certain state securities laws. I acknowledge that
although there is a Company obligation to do so, there is no assurance that the
Company will file any Registration Statement for the Securities I am purchasing,
that such Registration Statement, if filed, will be declared effective or, if
declared effective, that the Company will be able to keep it effective until I
sell the securities registered thereon.
7.5 No Market for Securities. I am purchasing the Securities
for my own account for investment and not with a view to, or for sale in
connection with, any subsequent distribution of the Securities, nor with any
present intention of selling or otherwise disposing of all or any part of the
Securities. I understand that there is no market at present and there may not be
any market in the future for the Securities or any underlying securities (the
term Securities will be deemed to include any underlying securities). I agree
that (i) the purchase of the Securities is a long-term investment, (ii) I may
have to bear the economic risk of investment for an indefinite period of time
because the Securities have not been registered under the Securities Act and may
never be registered and, cannot be resold, pledged, assigned, or otherwise
disposed of unless they are subsequently registered under the Securities Act and
under applicable securities laws of certain states or an exemption from such
registration is available. I understand that the Company is under no obligation
to register the Securities, except as may be set forth in Section 5 of SCHEDULE
1, or to assist me in complying with any exemption from such registration under
the Securities Act or any state securities laws. I hereby authorize the Company
to place a legend denoting the restrictions on the certificates representing the
Securities.
7.6 Entity Authority. If the Investor is a corporation,
partnership, company, trust, employee benefit plan, individual retirement
account, ▇▇▇▇▇ Plan, or other tax-exempt entity, it is authorized and qualified
to become an investor in the Company and the person signing this Subscription
Agreement and Investor Information Statement on behalf of such entity has been
duly authorized by such entity to do so.
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7.7 ACCREDITED INVESTOR STATUS FOR INDIVIDUALS. (INVESTORS THAT
ARE CORPORATIONS, LIMITED LIABILITY COMPANIES, PARTNERSHIPS, REVOCABLE TRUSTS,
IRREVOCABLE TRUSTS, EMPLOYEE BENEFIT PLAN TRUSTS AND INDIVIDUAL RETIREMENT
ACCOUNTS SHOULD IGNORE THE FOLLOWING QUESTIONS AND PROCEED TO SECTION 7.8).
(a) I am an accredited investor within the meaning of
Section 2(15) of the Securities Act and Rule 501 promulgated thereunder because
(please check the applicable responses):
My individual annual income during each of
the two most recent years exceeded $200,000
and I expect my annual income during the
______ current year will exceed $200,000.
If I am married, my joint annual income with
my spouse during each of the two most recent
years exceeded $300,000 and I expect my joint
annual income with my spouse during the
______ current year will exceed $300,000.
My individual or joint (together with my
spouse) net worth (including my home, home
furnishings and automobiles) exceeds
______ $1,000,000.
(b) The aggregate value of my assets is approximately
$___________.
(c) My aggregate liabilities are approximately
$___________.
(d) My current and expected income is:
YEAR INCOME
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2000 (estimated) $
1999 (Actual) $
1998 (Actual) $
Individual Investors may skip to Section 7.9 on page 6. Each person
associated with an Entity Investor who is required under Section 7.8 to
separately complete the questions in this Section 7.7 must sign the below
confirmation:
I hereby confirm the answers to Section 7.7 are true and
correct in all respects as of the date hereof and will be
on the date of the purchase of Securities.
Executed this ____ day of ________, 200__.
Signature:
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Print Name:
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7.8 ACCREDITED INVESTOR STATUS FOR ENTITIES. (INVESTORS WHO ARE
INDIVIDUALS SHOULD IGNORE THESE QUESTIONS.)
(a) The entity is a (please check the applicable response):
___ Corporation
___ Limited Liability Company
___ Partnership
___ Revocable Trust
___ Irrevocable Trust (if the Investor is an Irrevocable
Trust, a supplemental questionnaire must be
completed by the person directing the decision for
the trust. Please contact EarlyBirdCapital for a
copy of such supplemental questionnaire. Its address
and telephone number are on Schedule 1.)
___ Employee Benefit Plan Trust
___ Individual Retirement Account (If you are an ▇▇▇,
skip (b))
(b) Check all responses that apply:
___ The Entity was not formed for the specific purpose
of investing in the Company
___ The Entity has total assets in excess of $5 million
dollars
___ For Employee Benefit Plan Trusts Only: The decision
to invest in the Company was made by a plan
fiduciary, as defined in Section 3(21) of ERISA, who
is either a bank, insurance company or registered
investment advisor.
(c) If you did not check the first two of the three boxes in
Question (b) or if the Entity is an Individual Retirement Account, a
Self-directed Employee Benefit Plan Trust or an Irrevocable Trust, list the name
of each person who:
(i) owns an equity interest in the Entity (i.e., each
shareholder if the Entity is a corporation, each
member if the Entity is a limited liability company
and each partner if the Entity is a partnership); or
(ii) is a grantor for the revocable trust or Individual
Retirement Account; or
(iii) is the person making the investment decision for a
self-directed Employee Benefit Plan Trust; or
(iv) is the person making the investment decisions for an
Irrevocable Trust.
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EACH PERSON LISTED ABOVE MUST SEPARATELY COMPLETE AND SUBMIT TO THE
COMPANY THE ANSWERS TO QUESTION 7.7 AND SIGN THE WRITTEN
CONFIRMATION AT THE END OF SECTION 7.7.
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7.9 No Offer Until Determination of Suitability. I acknowledge
that any delivery to me of the documents relating to the offering of the
Securities prior to the determination by the Company of my suitability will not
constitute an offer of the Securities until such determination of suitability is
made.
7.10 For Florida Residents. The Securities have not been
registered under the Securities Act of 1933, as amended, or the Florida
Securities Act, by reason of specific exemptions thereunder relating to the
limited availability of the Offering. The Securities cannot be sold,
transferred, or otherwise disposed of to any person or entity unless
subsequently registered under the Securities Act of 1933, as amended, or the
Securities Act of Florida, if such registration is required. Pursuant to Section
517.061(11) of the Florida Securities Act, when sales are made to five (5) or
more persons in Florida, any sale made pursuant to Subsection 517.061(11) of the
Florida Securities Act will be voidable by such Florida purchaser either within
three days after the first tender of consideration is made by the purchaser to
the issuer, an agent of the issuer, or an escrow agent, or within three days
after the availability of the privilege is communicated to such purchaser,
whichever occurs later. In addition, as required by Section 517.061(11)(a)(3),
Florida Statutes and by Rule 3-500.05(a) thereunder, if I am a Florida resident
I may have, at the offices of the Company, at any reasonable hour, after
reasonable notice, access to the materials set forth in the Rule that the
Company can obtain without unreasonable effort or expense.
8. INDEMNIFICATION. I hereby agree to indemnify and hold harmless the
Company and EarlyBirdCapital, their respective officers, directors,
stockholders, employees, agents, and attorneys against any and all losses,
claims, demands, liabilities, and expenses (including reasonable legal or other
expenses incurred by each such person in connection with defending or
investigating any such claims or liabilities, whether or not resulting in any
liability to such person or whether incurred by the indemnified party in any
action or proceeding between the indemnitor and indemnified party or between the
indemnified party and any third party) to which any such indemnified party may
become subject, insofar as such losses, claims, demands, liabilities and
expenses (a) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact made by me and contained herein, or (b)
arise out of or are based upon any breach by me of any representation, warranty,
or agreement made by me contained herein. EarlyBirdCapital is a third-party
beneficiary of this Section and this Section may not be modified or amended
without the prior written agreement of EarlyBirdCapital.
9. SEVERABILITY; REMEDIES. In the event any parts of this
Subscription Agreement are found to be void, the remaining provisions of this
Subscription Agreement are nevertheless binding with the same effect as though
the void parts were deleted.
10. GOVERNING LAW AND JURISDICTION. This Subscription Agreement will
be deemed to have been made and delivered in New York City and will be governed
as to validity, interpretation, construction, effect and in all other respects
by the internal laws of the State of New York. Each of the Company and the
Investor hereby (i) agrees that any legal suit, action or proceeding arising out
of or relating to this Subscription Agreement will be instituted exclusively in
New York State Supreme Court, County of New York, or in the United States
District Court for the Southern District of New York, (ii) waives any objection
to the venue of any such suit, action or proceeding and the right to assert that
such forum is not a convenient forum for such suit, action or proceeding, (iii)
irrevocably consents to the jurisdiction of the New York State Supreme Court,
County of New York, and the United States District Court for the Southern
District of New York in any such suit, action or proceeding, (iv) agrees to
accept and acknowledge service of any and all process that may be served in any
such suit, action or proceeding in New York State Supreme Court, County of New
York or in the United States District Court for the Southern District of New
York and (v) agrees that
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service of process upon it mailed by certified mail to its address set forth on
my signature page will be deemed in every respect effective service of process
upon it in any suit, action or proceeding.
11. COUNTERPARTS. This Subscription Agreement may be executed in one
or more counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument. The execution of this
Subscription Agreement may be by actual or facsimile signature.
12. BENEFIT. This Subscription Agreement is binding upon and inures to
the benefit of the parties hereto (and EarlyBirdCapital to the extent it is a
third-party beneficiary hereof) and their respective heirs, executors, personal
representatives, successors and assigns. EarlyBirdCapital is a third-party
beneficiary with respect to any sections hereof that so state or that otherwise
indicate that EarlyBirdCapital would be entitled to rely on the representations,
warranties or covenants made by me therein.
13. NOTICES. All notices, offers, acceptance and any other acts under
this Subscription Agreement (except payment) must be in writing, and is
sufficiently given if delivered to the addressees in person, by overnight
courier service, or, if mailed, postage prepaid, by certified mail (return
receipt requested), and will be effective three days after being placed in the
mail if mailed, or upon receipt or refusal of receipt, if delivered personally
or by courier or confirmed telecopy, in each case addressed to a party. All
communications to me should be sent to my preferred address on the signature
page hereto. All communications to the Company should be sent to the addresses
set forth on Schedule 1. Each party may designate another address by notice to
the other parties.
14. ORAL EVIDENCE. This Subscription Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior oral and written agreements between the parties hereto with
respect to the subject matter hereof. This Subscription Agreement may not be
changed, waived, discharged, or terminated orally, but rather, only by a
statement in writing signed by the party or parties against which enforcement or
the change, waiver, discharge or termination is sought.
15. SECTION HEADINGS. Section headings herein have been inserted for
reference only and will not be deemed to limit or otherwise affect, in any
matter, or be deemed to interpret in whole or in part, any of the terms or
provisions of this Subscription Agreement.
16. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The
representations, warranties and agreements contained herein will survive the
delivery of, and the payment for, the Securities.
17. ACCEPTANCE OF SUBSCRIPTION. The Company may accept this
Subscription Agreement at any time for all or any portion of the Securities
subscribed for by executing a copy hereof as provided and notifying me within a
reasonable time thereafter.
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SIGNATURE PAGE FOR INDIVIDUAL INVESTORS - COMPLETE ALL INFORMATION
Name: _______________________ Name of Joint Investor (if any): ____________________
Residence Address: ____________________________________________________________________
Telephone: (H) ___________________ (W) _____________________ Fax ______________________
Occupation: _________________________ Employer: ______________________________________
Business Address: ______________________________________________________________________
Send communications to:
___ Home ___ Office ___ E-Mail:
E-mail address: _____________________________________________
Age: _______________
Social Security Number: ____________________
Check manner in which securities are to be held:
Individual Tenants in Joint Tenants with
___ Ownership ___ Common Right of Survivorship
(both parties must
___ sign)
Community Other (please
___ Property ___ indicate)
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ALL INVESTORS MUST SIGN AND PRINT NAME BELOW
Signature: _______________________________ Date: ________________
Print Name:_______________________________
Signature: _______________________________
Print Name:_______________________________
The foregoing subscription is accepted and the Company hereby agrees to be bound
by its terms.
VIDEO NETWORK COMMUNICATIONS, INC.
Dated: By:
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Name:
Title:
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SIGNATURE PAGE FOR ENTITY INVESTORS - COMPLETE ALL INFORMATION
Name of Entity: ______________________________________________________________________
Address of Principal Office: ________________________________________________________
Telephone: ___________________ Fax: ___________________
Taxpayer Identification Number: ______________________
Check type of Entity:
Employee Benefit Limited General Individual Retirement
___ Plan Trust ___ Partnership ___ Partnership ___ Account
Limited Liability Other (please indicate)
___ Company ___ Trust ___ Corporation ___
__________________
Date of Formation or incorporation: ___________ State of Formation or incorporation: __________
Describe the business of the Entity: __________________________________________________
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List the names and positions of the executive officers, managing members,
partners or trustees authorized to act with respect to investments by the Entity
generally and specify who has the authority to act with respect to this
investment.
Name Position Authority for this investment
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INVESTOR: The foregoing subscription is accepted and the
Company hereby agrees to be bound by its terms.
VIDEO NETWORK COMMUNICATIONS, INC.
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Signature of Authorized Signatory
Name: By: _____________________________
Title: Name:
Date: Title:
Date:
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SCHEDULE 1
1. Subscription. VIDEO NETWORK COMMUNICATIONS, INC. ("VNCI" or the
"Company") is offering through EarlyBirdCapital, Inc., its exclusive
placement agent, 1,760,000 Units ("Units") of the Company, at a purchase
price of $1.50 per Unit, each Unit consisting of (i) one share of the
Company's common stock ("Common Stock" or "Shares") and (ii) one warrant
("Warrant(s)") to purchase one share of Common Stock. The Warrants shall
be identical to the Warrants of the Company currently trading on Nasdaq
under the symbol "VNCIW," except for (i) the registration rights with
respect to the Warrants, and (ii) the initial date the Warrants become
exercisable, which is one day following the six month anniversary of the
closing of the offering of the Units.
2. Offering Period. The Company is offering the Units until the earlier of
(i) the date by which all the shares of Units being offered are sold, or
(ii) forty-five (45) days after the date of the Memorandum, unless such
latter date is extended, without notice to the Investors, by the mutual
consent of EarlyBirdCapital and the Company to a date not later than an
additional forty-five (45) days thereafter ("Termination Date").
3. Purchase. If you are tendering a check, make it payable to "CST&T AAF -
VIDEO NETWORK COMMUNICATIONS INC." If you are paying by wire transfer,
please instruct your bank to wire funds to "CST&T AAF - VIDEO NETWORK
COMMUNICATIONS INC" at Chase Manhattan Bank ABA # ▇▇▇-▇▇▇-▇▇▇, A/C #
530-921375.
4. Closing. The Offering is being made on a "best efforts", "all or none"
basis. In order for the Offering to close, the Company must receive and
accept subscriptions for 1,760,000 Units ($2,640,000) in gross proceeds.
If subscriptions for at least 1,760,000 of the Units are not received and
accepted (and funds in payment therefor cleared) by the Termination Date,
then the Offering will be terminated and all funds received from the
Investors will be returned without interest and without any deduction.
5. Obligations of the Company and the Investor
A. Registration Rights.
(1) Company's Obligation to Register. Within 45 days after the
date of the Closing, the Company shall file a Registration Statement
("Registration Statement") under the Securities Act of 1933 ("Securities Act")
with the Securities and Exchange Commission ("SEC") and shall make appropriate
filings in such states as the Placement Agent shall reasonably specify,
registering (a) for resale the Common Stock and Warrants purchased in the
Offering, the "Extra Warrants" referred to below and the shares of Common Stock
underlying the Warrants, the Extra Warrants and the Purchase Options ("Purchase
Options") issued to the Placement Agent in the Offering and (b) for sale, the
Common Stock underlying the Purchase Option, the Warrants and Extra Warrants, if
any, underlying the Purchase Options, and the Common Stock underlying such
Warrants and Extra Warrants (the securities referred to in the foregoing
subsections (a) and (b) are hereinafter collectively, "Registrable Securities").
The Company shall use its best efforts to have the Registration Statement
declared effective by the 120th day after the Closing ("Target Date"). If the
Registration Statement is not declared effective by the SEC and cleared by the
National Association of Securities Dealers, Inc. ("NASD") by the Target Date,
then on the Target Date and on each monthly anniversary of the Target Date
thereafter until the earlier of the effective date of the Registration Statement
("Effective Date") or the nineteenth monthly anniversary of the Target Date, the
Company shall issue to each purchaser of Units in the Offering and to the
Placement Agent and its designees with respect to the Purchase Options, Warrants
(referred to as "Extra Warrants") to purchase a number of shares of Common Stock
equal to 5% of the number of Warrants (as
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adjusted for stock splits, dividends and the like) purchased by him, her or it,
in the Offering (and as to the Placement Agent and its designees, 5% of the
number of Warrants underlying the Purchase Options). The Extra Warrants shall
have the same terms as the Warrants sold in the Offering. The Company shall keep
the Registration Statement current and effective until all the securities
registered thereunder are sold or can be sold freely under an appropriate
exemption, without limitation.
(2) Piggy-Back Registration Rights. If at any time the Company
shall file a registration statement (excluding registration statements on Forms
S-4 and S-8) during any period that the Registration Statement filed or to be
filed pursuant to Section 5A(i) above is not effective, the holders of the
Registrable Securities shall have the right to include their Registrable
Securities in such registration statement (to register the issuance or resale
thereof). In the event the Company proposes to file a registration statement
pursuant to this subsection (2), the Company shall promptly give written notice
of such proposed registration to all holders of Registrable Securities. Such
holders shall have the right, by giving written notice to the Company within 30
days after the Company provides its notice, to elect to have included in such
registration such of their Registrable Securities as such holders may request in
such notice of election. Thereupon, the Company shall, as expeditiously as
possible, use its best efforts to effect the registration on an appropriate
registration form of all Registrable Securities which the Company has been
requested to so register. If the managing underwriter of a registration
statement filed in accordance with subsection 5(2) determines that the marketing
factors require a lock-up of the securities being registered by the Holders,
then such Holders shall agree to sign a lock-up agreement with respect to such
securities being registered, agreeing not to sell such securities until at most
90 days after the effective date of such registration statement.
(3) Covenants. If and whenever the Company is required by the
provisions of this Agreement to effect the registration of any Registrable
Securities under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement
with respect to such Registrable Securities and use its best efforts to cause
that Registration Statement to become effective as soon as possible;
(b) as expeditiously as possible prepare and file with
the Commission any amendments and supplements to the Registration Statement and
the prospectus included in the Registration Statement as may be necessary to
comply with the provisions of the Securities Act (including the anti-fraud
provisions thereof), and to keep the Registration Statement effective until the
earlier of the date which all Registrable Securities are sold and the date that
the Registrable Securities may be sold pursuant to Rule 144 without
restrictions;
(c) as expeditiously as possible furnish to each Holder
such reasonable numbers of copies of the Prospectus which forms a part of the
Registration Statement, including any preliminary Prospectus, in conformity with
the requirements of the Securities Act, and such other documents as such
Investor may reasonably request in order to facilitate the public sale or other
disposition of the Registrable Securities owned by such Investor;
(d) as expeditiously as possible use its best efforts to
register or qualify the Registrable Securities covered by the Registration
Statement under the securities or Blue Sky laws of such states as the Investors
shall reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the Investors to consummate the public sale or
other disposition in such states of the Registrable Securities owned by the
Investor; provided, however, that the Company shall not be required in
connection with this paragraph to qualify as a foreign corporation or execute a
general consent to service of process in any jurisdiction;
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(e) as expeditiously as possible, cause all such
Registrable Securities to be listed on each securities exchange or automated
quotation system on which similar securities issued by the Company are then
listed;
(f) promptly arrange the services of a transfer agent
and registrar for all such Registrable Securities not later than the effective
date of such registration statement;
(g) as expeditiously as possible, notify each Investor,
promptly after it shall receive notice thereof, of the time when such
Registration Statement has become effective or a supplement to any Prospectus
forming a part of such Registration Statement has been filed; and
(h) as expeditiously as possible following the
effectiveness of such Registration Statement, notify each seller of such
Registrable Securities of any request by the Commission for the amending or
supplementing of such Registration Statement or Prospectus.
If the Company has delivered a Prospectus to the Investors and
after having done so the Prospectus is amended to comply with the requirements
of the Securities Act, the Company shall promptly notify the Investors and, if
requested, the Investors shall immediately cease making offers of Registrable
Securities and return all Prospectuses to the Company or affix a sticker to the
Prospectuses which is provided by the Company. If returned, the Company shall
promptly provide the Investors with revised Prospectuses and, following receipt
of the revised Prospectuses, the Investors shall be free to resume making offers
of the Registrable Securities.
(4) Fees and Expenses. In any registration statement in which
Registrable Securities are included pursuant to this Section, the Company shall
bear all expenses and pay all fees incurred in connection therewith, excluding
underwriting discounts and commissions payable with respect to such securities
but including the expenses of preparing the registration statement, filing it
with the SEC and NASD and providing a reasonable number of copies of the
prospectus contained therein to the Investors and the fees (no more than
$15,000) of one special counsel for all of the holders of the securities sold in
the Offering and of the Purchase Option.
(5) Indemnification by Company. The Company shall indemnify the
holders of the Registrable Securities to be sold pursuant to any registration
statement pursuant to this Section 5, the officers and directors of each
Investor and each person, if any, who controls such Investors within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended ("Exchange Act"), or any state securities law or
regulation, against all loss, claim, damage, expense or liability (including all
reasonable attorneys' fees and other expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever incurred by
the indemnified party in any action or proceeding between the indemnitor and
indemnified party or between the indemnified party and any third party or
otherwise) to which any of them may become subject under the Securities Act, the
Exchange Act or any other statute or at common law or otherwise under the laws
of foreign countries, arising from such registration statement or based upon any
untrue statement or alleged untrue statement of a material fact contained in (i)
any preliminary prospectus, the registration statement or prospectus (as from
time to time each may be amended and supplemented); (ii) any post-effective
amendment or amendments or any new registration statement and prospectus in
which is included the Registrable Securities; or (iii) any application or other
document or written communication (collectively called "application") executed
by the Company or based upon written information furnished by the Company in any
jurisdiction in order to qualify the Registrable Securities under the securities
laws thereof or filed with the Securities and Exchange Commission, any state
securities commission or agency, Nasdaq or any securities exchange; or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, unless such statement
or omission is made in reliance upon,
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and in conformity with, written information furnished to the Company by and with
respect to such registered Investors ("Purchaser Information") expressly for use
in any preliminary prospectus, the registration statement or prospectus, or any
amendment or supplement thereof, or in any application, as the case may be, or
unless the indemnities failed to deliver a final prospectus in which the
material misstatement or omission was corrected. The Company agrees promptly to
notify such Investors of the commencement of any litigation or proceedings
against the Company or any of its officers, directors or controlling persons in
connection with the issue and sale or resale of the Registrable Securities or in
connection with the registration statement or prospectus.
(6) Successors and Assigns. The registration rights granted to
the holders inure to the benefit of all the Investors' successors, heirs,
pledges, assignees, transferees and purchasers of the Shares, Warrants, Extra
Warrants, if any, and Purchase Options, as the case may be.
(7) Rule 144 Requirements. The Company agrees to:
(a) make and keep current public information about the
Company available, as those terms are understood and defined in Rule 144;
(b) use its best efforts to file with the Commission in
a timely manner all reports and other documents required of the Company under
the Securities Act and the Securities Exchange Act of 1934, as amended
("Exchange Act"); and
(c) furnish to any holder of Registrable Shares upon
request (i) a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 and of the Securities Act and the Exchange
Act (at any time after it has become subject to such reporting requirements),
(ii) a copy of the most recent annual or quarterly report of the Company, and
(iii) such other reports and documents of the Company as such holder may
reasonable request to avail itself of any similar rule or regulation of the
Commission allowing it to sell any such securities without registration.
B. Lock-Up Agreement by Investor. Notwithstanding the foregoing
registration obligations, each purchaser of Units in the Offering hereby agrees
not to sell the Shares, Warrants, Extra Warrants or shares underlying such
Warrants or Extra Warrants for a period of 12 months from the Closing without
the prior written consent of the Placement Agent.
C. Warrants. The Company will amend its existing Warrant Agreement
with Continental Stock Transfer and Trust Company effective as of the Closing,
to include the Warrants and Extra Warrants, if any, underlying the Units and the
Placement Agent Securities. Notwithstanding anything to the contrary,
hereinabove or in the warrant certificate or the warrant agreement with the
Company's Warrant Agent, each Investor agrees that the Warrants may not be
exercised until one day following the six-month anniversary of the Closing.
6. Notices. All communications to the Company should be sent to:
VIDEO NETWORK COMMUNICATIONS, INC.
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Financial Officer
and Vice President, Administration
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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with copies to:
▇. ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
B. EarlyBirdCapital, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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