1
EXHIBIT 4.6
SUCCESSOR REGISTRATION RIGHTS AGREEMENT
This Successor Registration Rights Agreement (this "Agreement") is made
and entered into as of March 31, 2000, by and among Internet Pictures
Corporation, a Delaware corporation (the "Company"), and the Original Holders
(as defined herein).
WHEREAS, effective as of March 31, 2000, the Company acquired
PictureWorks Technology, Inc., a Delaware corporation ("PictureWorks"), pursuant
to the merger of Purple Sub, Inc., a Delaware corporation and wholly owned
subsidiary of the Company ("Merger Sub"), with and into PictureWorks (the
"Merger") in accordance with the Agreement and Plan of Merger dated as of March
6, 2000, among the Company, PictureWorks and Merger Sub (the "Merger
Agreement");
WHEREAS, pursuant to the Merger, the Company issued to the Original
Holders shares of common stock, par value $.001 per share, of the Company
("Common Stock") in a private placement not registered under the Securities Act
(as defined herein) or any state securities laws;
WHEREAS, the Company and the Holders desire and have agreed that the
Company will provide the Holders with certain registration rights with respect
to their Registrable Securities (as defined herein) on the terms and subject to
the conditions set forth in this Agreement; and
WHEREAS, this Agreement shall supersede and succeed in all respects the
existing Amended and Restated Investors Rights Agreement of PictureWorks dated
as of March 16, 1999, among PictureWorks, ▇▇▇▇▇▇▇ ▇. ▇▇▇, and the other persons
named therein (the "Prior Agreement").
NOW, THEREFORE, in consideration of the mutual agreements and covenants
set forth herein, and for certain other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the meanings ascribed to them below:
"Commission" shall mean the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
"Escrow Shares" shall mean the shares of Common Stock that are held in
escrow pursuant to the Escrow Agreement dated as of March 31, 2000, among the
Company, ▇▇▇▇▇▇▇ ▇. ▇▇▇ (as the Sellers' Representative), and First Tennessee
Bank National Association (as the Escrow Agent) (the "Escrow Agreement") and
that are issued and released to the Original Holders pursuant to the terms of
the Escrow Agreement.
2
"Exchange Act" shall mean the Securities Exchange Act of 1934 or any
successor thereto, and the rules, regulations and forms promulgated by the
Commission thereunder, all as the same shall be in effect at the time.
"Holders" shall mean the Original Holders and any person holding
Registrable Securities to whom the rights under this Agreement have been
transferred in accordance with Section 13 hereof.
"Merger Shares" shall mean the shares of Common Stock issued by the
Company to the Original Holders by operation of the Merger Agreement, including,
without limitation, any and all Escrow Shares issued to the Original Holders.
"Original Holders" shall mean the stockholders and warrantholders of
PictureWorks immediately prior to the effective time of the Merger who are
issued shares of Common Stock by the Company by operation of the Merger
Agreement or subsequently upon exercise of warrants outstanding at the effective
time of the Merger, if any. The names of the Original Holders as of the date of
this Agreement are set forth in Exhibit A attached hereto.
"Register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of the effectiveness of such
registration statement by the Commission.
"Registrable Securities" shall mean the Merger Shares and any shares of
Common Stock or other securities issued as (or issuable upon the conversion or
exercise of any warrant, right or other security which is issued as) a dividend
or other distribution with respect to, in exchange for, or in replacement of the
Merger Shares, excluding in all cases any Registrable Securities sold or
otherwise transferred by a person in a transaction in which the rights under
this Agreement are not assigned or transferred in accordance with Section 13
hereof.
"Registration Expenses" shall mean all expenses incurred by the Company
in connection with any registration pursuant to Sections 5 and 6 hereof,
including, without limitation, all registration, qualification and filing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, and the expense of any special audits
incident to or required by any such registration, but excluding the compensation
of regular employees of the Company which shall be paid in any event by the
Company.
"Securities Act" shall mean the Securities Act of 1933 or any successor
thereto, and the rules, regulations and forms promulgated by the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the Registrable Securities
registered by the Holders
3
hereunder and all fees and disbursements of counsel for the Holders relating to
any such registration.
2. Termination of Prior Agreement. The Prior Agreement is hereby
terminated and shall have no further force or effect, and no party thereto shall
have any further rights or obligations thereunder.
3. Restrictive Legends. Each certificate representing the
Registrable Securities shall, unless otherwise permitted by the provisions of
Section 4 hereof, be stamped or otherwise imprinted with legends in
substantially the following form, in addition to any legend required under
applicable state securities law:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR
ANY STATE SECURITIES LAW IN RELIANCE ON EXEMPTIONS FROM THE
REGISTRATION REQUIREMENTS OF SUCH LAWS. THE HOLDER OF THE SHARES AGREES
FOR THE BENEFIT OF THE COMPANY THAT (A) THE SHARES WILL BE OFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF ONLY (I)
OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULES 904 AND 905 UNDER THE SECURITIES ACT, (II) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE
144 THEREUNDER OR ANOTHER AVAILABLE EXEMPTION THEREUNDER, OR (III)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, AND, IN EACH OF CASES (I) THROUGH (III), IN ACCORDANCE WITH ALL
APPLICABLE STATE SECURITIES LAWS, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY SUBSEQUENT HOLDER OF THE
TRANSFER RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE."
If the Holder is a foreign investor, his, her or its certificate representing
the Merger Shares shall also include the following legend:
"THE HOLDER OF THE SHARES AGREES NOT TO ENGAGE IN HEDGING
TRANSACTIONS INVOLVING THE SHARES UNLESS IN ACCORDANCE WITH THE
SECURITIES ACT."
Each Holder consents to the Company making a notation on its records and giving
instructions to the Company's transfer agent in order to implement the
restrictions on transfer established in this Agreement.
4
4. Notice of Proposed Transfers. In connection with any proposed
sale, assignment, transfer, pledge or other disposition of any Registrable
Securities, the Holder of such Registrable Securities shall provide to the
Company either (a) a written opinion of legal counsel who shall, and whose legal
opinion shall be, reasonably satisfactory to the Company, addressed to the
Company, to the effect that the proposed transfer of the Registrable Securities
may be effected without registration under the Securities Act, or (ii) a "no
action" letter from the Commission to the effect that the transfer of the
Registrable Securities without registration will not result in a recommendation
by the staff of the Commission that action be taken with respect thereto,
whereupon the holder of such Registrable Securities shall be entitled to
transfer such Registrable Securities in accordance with the terms of the notice
delivered by the Holder to the Company. The Company will not require such a
legal opinion or "no action" letter (a) in any transaction in compliance with
Rule 144 or Regulation S, (b) in any transaction in which a Holder that is a
corporation distributes Registrable Securities solely to its majority-owned
subsidiaries or affiliates for no consideration, or (c) in any transaction in
which a Holder that is a partnership distributes Registrable Securities solely
to its partners for no consideration, provided that each transferee agrees in
writing to be subject to the this Agreement. Each certificate evidencing the
Registrable Securities transferred as provided above shall bear the appropriate
restrictive legend(s) set forth in Section 3 hereof, except if such transfer is
made pursuant to Rule 144 or if such legend(s) are no longer legally required.
5. Piggyback Registrations.
(a) Right to Include Registrable Securities. If at any
time or from time to time the Company determines to register any of its
securities, either for its own account or the account of a security holder or
holders (other than a registration relating solely to an employee benefit plan
or a Commission Rule 145 transaction), the Company (i) shall promptly give
written notice to the Holders of its intention to effect a registration, and
(ii) subject to Section 5(b) hereof, shall include in such registration (and any
related qualification under state securities or blue sky laws or other
compliance), and in any underwriting involved in such registration, all the
Registrable Securities specified in a written request by any Holder received by
the Company within twenty (20) days after the Holder's receipt of such written
notice from the Company. Notwithstanding any provision hereof to the contrary,
the Holders shall be entitled to include in the first underwritten registered
public offering of securities completed by the Company after the date of this
Agreement a number of Registrable Securities which at a minimum is equal to
twenty percent (20%) of the total number of securities to be sold by all
security holders of the Company in such offering. Notwithstanding any provision
hereof to the contrary, in the event that the Company files a registration
statement with the Commission prior to the consummation of the Merger, the
Holders shall make their requests, if any, for inclusion of their Registrable
Securities in such registration within two (2) calendar days after the
consummation of the Merger.
(b) Underwritten Registrations; Priority. If the
registration of which the Company gives notice to the Holders is for a
registered public offering involving an
5
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to Section 5(a) hereof. In such event, the right of any
Holder to registration pursuant to this Section 5 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of Registrable
Securities in the underwriting to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into an underwriting agreement in customary
form with the managing underwriter selected for such underwriting by the Company
(or by the holders who have demanded such registration). Notwithstanding any
other provision of this Section 5, if the managing underwriter determines that
marketing factors require a limitation of the number of securities to be
underwritten, the managing underwriter, with the Company's permission, may
reduce the number of securities to be included in such registration. In such
event, the securities to be included in such registration shall be determined in
accordance with the following priorities: (i) first, the securities, if any,
that the Company proposes to include therein; and (ii) second, the Registrable
Securities requested to be included therein by the Holders and the securities,
if any, requested to be included therein by other security holders with
piggyback registration rights applicable to such registration, pro rata among
all such Holders and other security holders on the basis of the total number of
Registrable Securities that the Holders beneficially own at the time that they
make requests for inclusion of their Registrable Securities in such registration
and securities that the other security holders own of record at the time of
filing the registration statement. To facilitate the allocation of securities in
accordance with the above provisions, the Company or the managing underwriter
may round the number of securities allocated to any Holder or other security
holder to the nearest one hundred (100) shares. If any Holder or other holder
disapproves of the terms of any such underwriting, said Holder may elect to
withdraw therefrom by providing written notice thereof to the Company and the
managing underwriter. Any Registrable Securities withdrawn from such
underwriting shall be withdrawn from such registration and shall be subject to
the same lock-up period, if any, applicable to the Holders and other security
holders participating in such registration.
(c) Company's Right to Terminate Registration. The
Company shall have the right to terminate or withdraw any registration initiated
by it under this Section 5 prior to the effectiveness of such registration,
whether or not any Holder has elected to include Registrable Securities in such
registration.
6. Registrations on Form S-3
(a) Holders' Right to Request Registration. If the
Company receives from any Holder or Holders a written request or requests that
the Company effect a registration on Form S-3 (or any successor form to Form
S-3) for a public offering of all or part of the Registrable Securities owned by
such Holder or Holders, and the reasonably anticipated aggregate price to the
public (net of underwriting discounts and commissions) of such offering would
exceed $1,000,000, and the Company is a registrant entitled to use Form S-3 to
register the Registrable Securities for such an offering, then the Company
shall use
6
its best efforts to cause the offering of such Registrable Securities to be
registered on such form; provided, however, that the Company shall not be
required to effect more than two (2) registrations pursuant to this Section 6 in
any twelve (12) month period. The Company shall (i) promptly give written notice
of the proposed registration to all other Holders, and (ii) as soon as
practicable, use its best efforts to effect such registration (including,
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualification under applicable state blue sky or
securities laws, and appropriate compliance with applicable regulations issued
under the Securities Act and any other governmental requirements or regulations)
as may be so requested and as would permit or facilitate the sale and
distribution of all or such portion of the Registrable Securities as are
specified in such request, together with all or such portion of the Registrable
Securities of any other Holder joining in such request as are specified in a
written request received by the Company within twenty (20) days after receipt of
such written notice from the Company. The substantive provisions of Section 5(b)
hereof shall be applicable to each registration initiated under this Section 6.
(b) Company's Right to Deny Registration. Notwithstanding
any other provision of this Section 6, the Company shall not be obligated to
take any action pursuant to this Section 6 (i) in any particular jurisdiction in
which the Company would be required to execute a general consent to service of
process in effecting such registration, qualification or compliance, unless the
Company is already subject to service in such jurisdiction and except as may be
required by the Securities Act; or (ii) during the period ending on a date three
(3) months following the effective date of a registration statement (other than
a registration statement relating solely to an employee benefit plan or a
Commission Rule 145 transaction or any other registration statement that is not
appropriate for the registration of Registrable Securities), provided that
Section 5(b) applied to such offering; or (iii) if the Company shall furnish to
such Holder a certificate signed by the President of the Company stating that,
in the good-faith judgment of the Board of Directors, it would be seriously
detrimental to the Company or its stockholders for a registration statement to
be filed in the near future, in which event the Company's obligation to use its
best efforts to file a registration statement shall be deferred for a single
period not to exceed one hundred twenty (120) days from the receipt of the
request to effect such registration by such Holder or Holders, provided that the
same limitation is imposed on all other holders of restricted shares of Common
Stock, including shares held or received upon exercise of options by management
of the Company.
7. Limitations on Subsequent Registration Rights. From and after
the date of this Agreement, the Company shall not enter into any agreement
granting any holder or prospective holder of any securities of the Company
registration rights with respect to such securities without the prior written
consent of the Holders of a majority of the Registrable Securities then
outstanding (on a Common Stock equivalent basis) unless (i) such new
registration rights are on a pari passu basis with those rights of the Holders
hereunder, but without reduction to the number of registrations to be paid for
by the Company for the benefit of the Holders, or (ii) such new registration
rights are subordinate to the registration rights granted to the Holders
hereunder; provided, however, that the inclusion of such holder's securities
shall not reduce the amount of Registrable
7
Securities which are included in any registration for which the Holders hold
registration rights pursuant to this Agreement.
8. Registration Expenses; Selling Expenses. All Registration
Expenses incurred in connection with any registration effected pursuant to
Section 5 hereof and in connection with up to four (4) registrations effected
pursuant to Section 6 hereof shall be borne by the Company. All Registration
Expenses incurred in connection with the fifth (5th) and any subsequent
registrations effected pursuant to Section 6 hereof and all Selling Expenses
incurred in connection with any registration effected pursuant to Section 5 or 6
hereof shall be borne by the Holders participating therein.
9. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to Section 5 or 6
hereof, the Company shall keep each Holder participating therein advised in
writing as to the initiation of each registration, qualification and compliance
and as to the completion thereof. At its expense, the Company shall (a) prepare
and file with the Commission a registration statement with respect to the public
offering of such securities, and use its best efforts to cause such registration
statement to become and remain effective for at least one hundred twenty (120)
days or until the distribution described in the registration statement (which
may be a "shelf registration") has been completed; (b) furnish to the Holders
participating in such registration and to the underwriters of the securities
being registered such reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus and such other documents as such
Holders and underwriters may reasonably request in order to facilitate the
public offering of such securities; and (c) if requested by the Holders, enter
into an underwriting agreement in customary form and perform its obligations
thereunder.
10. Indemnification
(a) Indemnification by the Company. The Company shall
indemnify each Holder, each of its directors, officers, stockholders, members
and partners, and each person who controls (within the meaning of Section 15 of
the Securities Act) such Holder, with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter thereof, if any, and each person who controls (within the
meaning of Section 15 of the Securities Act) any such underwriter, against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were made, not
misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company in connection
with any such registration, qualification or compliance, and the Company shall
reimburse each Holder, each of its directors, officers,
8
stockholders, members and partners, and each person who controls such Holder,
and each underwriter and each person who controls such underwriter, for all
legal and other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action;
provided, however, that the Company shall not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder, controlling person of such Holder, underwriter, or controlling person of
such underwriter and stated to be specifically for use therein; and provided
further, that the Company shall not be liable to any such person or entity with
respect to any such untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus that is corrected in the
final prospectus filed with the Commission pursuant to Rule 424(b) promulgated
under the Securities Act (or any amendment or supplement to such prospectus) if
the person asserting any such loss, claim, damage or liability purchased
securities but was not sent or given a copy of the prospectus (as amended or
supplemented) at or prior to the written confirmation of the sale of such
securities to such person in any case where such delivery of the prospectus (as
amended or supplemented) is required by the Securities Act, unless such failure
to deliver the prospectus (as amended or supplemented) was a result of the
Company's failure to provide such prospectus (as amended or supplemented).
(b) Indemnification by the Holders. Each Holder shall,
separately and not jointly, if Registrable Securities held by such Holder are
included in the securities as to which registration, qualification or compliance
is being effected pursuant to this Agreement, indemnify the Company, each of its
directors and officers, and each person who controls (within the meaning of
Section 15 of the Securities Act) the Company, each underwriter thereof, if any,
and each person who controls (within the meaning of Section 15 of the Securities
Act) any such underwriter, and each other Holder, each of its directors,
officers, stockholders, members and partners, and each person who controls
(within the meaning of Section 15 of the Securities Act) such other Holder,
against all expenses, claims, losses, damages and liabilities (or actions in
respect thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
such Holder shall reimburse the Company, each of its directors and officers, and
each person who controls the Company, each underwriter and each person who
controls such underwriter, and each other Holder, each of its directors,
officers and partners, and each person who controls such other Holder, for all
legal and other expenses reasonably incurred in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission is made in such
registration statement, prospectus, offering circular or other document in
reliance upon and in conformity with written information furnished to the
Company by an
9
instrument duly executed by such Holder and stated to be specifically for use
therein; provided, however, that the liability of a Holder for indemnification
under this Section 10(b) shall not exceed the gross proceeds from the offering
received by such Holder.
(c) Indemnification Procedures. Each party entitled to
indemnification under this Section 10 (the "Indemnified Party") shall give
written notice to the party required to provide indemnification hereunder (the
"Indemnifying Party") promptly after such Indemnified Party has actual knowledge
of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any litigation
resulting therefrom; provided, however, that counsel for the Indemnifying Party,
who shall conduct the defense of such claim or litigation, shall be approved by
the Indemnified Party (whose approval shall not be unreasonably withheld or
delayed), and that the Indemnified Party may participate in such defense at such
party's expense; and provided, further, that the failure of any Indemnified
Party to give notice as provided herein shall not relieve the Indemnifying Party
of its obligations under this Section 10 unless the failure to give such notice
is materially prejudicial to an Indemnifying Party's ability to defend such
action. If the Indemnifying Party assumes the defense of any such claim or
litigation, the Indemnifying Party shall not, without the prior written approval
of each Indemnified Party, consent to the entry of any judgment or enter into
any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. If the Indemnifying Party
assumes the defense of any such claim or litigation, the Indemnifying Party
shall not be subject to any liability for any settlement made by the Indemnified
Party without the prior written consent of the Indemnifying Party. If the
Indemnifying Party does not assume the defense of any such claim or litigation,
the Indemnifying Party shall not be obligated to pay the fees and expenses of
more than one counsel for all the Indemnified Parties with respect to such claim
or litigation, unless in the reasonable judgment of an Indemnified Party a
conflict of interest exists between such Indemnified Party and any other
Indemnified Party with respect to such claim or litigation.
(d) Contribution. If the indemnification provided for in
this Section 10 is held by a court of competent jurisdiction to be unavailable
to an Indemnified Party with respect to any expense, claim, loss, damage,
liability or action referred to therein, or if the indemnification provided for
in this Section 10 is insufficient to hold harmless an Indemnified Party, then
the Indemnifying Party, in lieu of, or in addition to, indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such expense, claim, loss, damage,
liability or action in such proportion as is appropriate to reflect the relative
fault of the Indemnifying Party on the one hand and of the Indemnified Party on
the other hand in connection with the statements or omissions that resulted in
such expense, claim, loss, damage, liability or action as well as any other
relevant equitable considerations. The relative fault of the Indemnifying Party
and of the Indemnified Party shall be determined by reference to, among other
things, whether any indemnifiable act has been committed by, or relates to
information supplied by, the Indemnifying Party or the Indemnified Party and the
parties'
10
relative intent, knowledge, access to information, and opportunity to correct or
prevent such indemnifiable act. The amount paid or payable by a party as a
result of the claims, losses, damages, liabilities and actions referred to above
shall be deemed to include, subject to the limitations set forth in this Section
10, all legal and other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action. The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 10(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the first sentence of this Section
10(d). 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. Notwithstanding
the foregoing, if indemnification is available under this Section 10, the
Indemnifying Party shall indemnify each Indemnified Party to the full extent
provided in this Section 10 without regard to the relative fault of such
Indemnifying Party or Indemnified Party or any other equitable consideration
referred to in this Section 10(d).
(e) Non-Exclusivity; Survival. The obligations of the
Company and the Holders under this Section 10 shall be in addition to any and
all other rights to indemnification or contribution which any indemnified party
may have pursuant to law, contract or otherwise, and shall survive the
completion of any offering of Registrable Securities pursuant to a registration
effected under this Agreement.
11. Information Furnished by Holder. The Holder or Holders whose
Registrable Securities are included in any registration effected under this
Agreement shall furnish to the Company such information regarding such Holder or
Holders, the Registrable Securities held by them, and the distribution proposed
by such Holder or Holders as the Company may reasonably request in writing and
as shall be required in connection with any such registration and any related
qualification under state securities or blue sky laws or other compliance.
12. Form S-3 Availability; Rule 144 Reporting. With a view to
making available the benefits of certain rules and regulations of the Commission
which may at any time permit the sale of the Restricted Securities to the public
without registration or the use of Form S-3 or any similar or successor short
form of registration statement, the Company shall use its best efforts to (a)
make and keep public information available, as those terms are understood and
defined in Commission Rule 144 (or any similar or analogous rule) promulgated
under the Securities Act, at all times that the Company is subject to the
reporting requirements of the Exchange Act, and (b) file with the Commission in
a timely manner all reports and other documents required of the Company under
the Exchange Act. Upon request, the Company shall confirm in writing its
compliance with the timely filing of its Exchange Act reports.
13. Transfer of Registration Rights. The rights to cause the
Company to register Registrable Securities granted to the Holders under Sections
5 and 6 hereof may be assigned or transferred in connection with any transfer or
assignment of Registrable
11
Securities by a Holder, provided that (a) such assignment or transfer may
otherwise be effected in accordance with all applicable securities laws, (b)
notice of such assignment or transfer is given to the Company, (c) such assignee
or transferee (i) is a wholly-owned subsidiary or constituent partner (including
a limited partner or member) of such Holder or (ii) acquires from such Holder
the greater of (a) 25,000 or more Registrable Securities (as appropriately
adjusted for stock splits and the like) or (b) one-half (1/2) of the Registrable
Securities then owned by such Holder, and (d) such assignee or transferee
executes and delivers to the Company a counterpart of the Holders' signature
page hereof. In the event of a proposed assignment or transfer by a Holder to
any person whom the Company deems, in its reasonable discretion, to be a
competitor of the Company, such transfer shall not be made without the prior
written consent of the Company.
14. Termination of Rights. Notwithstanding any other provision of
this Agreement, no Holder shall be entitled to exercise any registration right
provided for in Section 5 or 6 hereof (a) after five (5) years following the
consummation of the sale of securities pursuant to the first registration
statement filed by the Company under the Act after the consummation of the
Merger, or (b) with respect to a particular Holder, when all of the Holder's
Registrable Securities may be sold under Commission Rule 144 promulgated under
the Securities Act during any period of ninety (90) consecutive days.
15. Assumption of Obligations. The Company shall not, directly or
indirectly, enter into any merger, consolidation or reorganization in which the
Company shall not be the surviving corporation, unless prior to such merger,
consolidation or reorganization, the surviving corporation shall have agreed in
writing to assume the obligations of the Company under this Agreement, and for
that purpose references hereunder to "Registrable Securities" shall be deemed to
include the securities which the Holders would be entitled to receive in
exchange for Registrable Securities pursuant to any such merger, consolidation
or reorganization.
16. Miscellaneous Provisions
(a) Assignment. Except as otherwise provided in this
Agreement, the terms and conditions of this Agreement shall inure to the benefit
of and be binding upon the respective successors and assigns of the parties to
this Agreement.
(b) Third Parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party, other than the parties to this
Agreement, and their respective successors and assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
(c) Governing Law. This Agreement shall be governed by,
construed under, and enforced in accordance with the laws of the State of
Delaware in the United States of America without regard to the conflicts-of-laws
principles thereof.
12
(d) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(e) Notices. All notices and other communications
required or permitted under this Agreement shall be made in writing and shall be
delivered (and shall be deemed to have been delivered upon receipt) in person,
by registered or certified mail (postage prepaid and return receipt requested),
or by messenger or delivery service (delivery charge prepaid), addressed as
follows:
If to the Company:
Internet Pictures Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
with a copy to:
Baker, Donelson, Bearman & ▇▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
If to any Holder:
The address set forth next to such Holder's
signature on the Holders' signature page hereof
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Any party hereto may change its address for the purpose of receiving notices and
other communications hereunder by notifying the other party of such change in a
manner provided for herein.
(f) Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, portions of such
provisions, or such provisions in their entirety, to the extent necessary, shall
be severed from this Agreement, and the balance of this Agreement shall be
enforceable in accordance with its terms.
(g) Amendment and Waiver. Any provision of this Agreement
may be amended or waived with the written consent of the Company and the Holders
of at least a
13
majority of the outstanding Registrable Securities, so long as the effect is to
treat all Holders equally, which consent shall not be unreasonably withheld or
delayed. Any amendment or waiver of any provision of this Agreement shall
require the written consent of any Holder who is disproportionately adversely
affected by such amendment or waiver. In addition, the Company may waive
performance of any obligation owing to it as to some or all of the Holders, or
agree to accept alternatives to such performance, without obtaining the consent
of any Holder. Any amendment or waiver effected in accordance with this Section
16(g) shall be binding upon each Holder and the Company. The Holders and their
successors and assigns acknowledge that by operation of this Section 16(g), the
Holders of a majority of the outstanding Registrable Securities, acting in
conjunction with the Company, will have the right and power to diminish or
eliminate any or all rights or increase any or all obligations pursuant to this
Agreement. In the event that an underwriting agreement is entered into between
the Company and any Holder, and such underwriting agreement contains terms
differing from this Agreement, as to any such Holder the terms of such
underwriting agreement shall govern, except with respect to Section 10 hereof
which shall not in any event be modified thereby.
(h) Rights of Holders. Each Holder shall have the
absolute right to exercise or refrain from exercising any right or rights that
such Holder may have by reason of this Agreement, including, without limitation,
the right to consent to the amendment or waiver of any obligation under this
Agreement, and such Holder shall not incur any liability to any other holder of
any securities of the Company as a result of exercising or refraining from
exercising any such right or rights.
(i) Delays or Omissions; Remedies. No delay or omission
to exercise any right, power or remedy accruing to any party to this Agreement,
upon any breach or default of the other party, shall impair any such right,
power or remedy of such non-breaching party nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence therein, or of or in
any similar breach or default thereafter occurring; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any party of any breach or default under
this Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
[INTENTIONALLY LEFT BLANK]
14
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
COMPANY:
Internet Pictures Corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
[INTENTIONALLY LEFT BLANK]
15
HOLDERS' SIGNATURE PAGE
If the Holder is a natural person:
Address:
------------------------------ ----------------------------
Signature
----------------------------
------------------------------ ----------------------------
Print Name
If the Holder is an entity:
Address:
------------------------------ ----------------------------
Print Name
----------------------------
By:
--------------------------- ----------------------------
Name:
-------------------------
Title:
------------------------