Exhibit 10.2
VIE FINANCIAL GROUP, INC.
SERIES H
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
October 9, 2003
SERIES H
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This Amended and Restated Registration Rights Agreement (this
"Agreement") is entered into as of this 9th day of October, 2003, by and among
Vie Financial Group, Inc., a Delaware corporation (the "Company"), and the
holders of the Company's Series H Convertible Preferred Stock, par value $0.01
per share (the "Series H Shares"), set forth on Schedule I hereto.
RECITALS
WHEREAS, the Company and the purchasers of the Series H Shares set
forth on Schedule I hereto (collectively, the "Purchasers") have entered into
either (i) the Series H Preferred Stock Purchase Agreement, dated as of
September 30, 2003 or (ii) the Series H Preferred Stock Purchase Agreement,
dated as of October 9, 2003 (the "Subscription Agreement"), providing for, among
other things, the sale by the Company and the purchase by the Purchasers of an
aggregate of 50,000 Series H Shares; and
WHEREAS, this Agreement is being entered into in order to induce the
Purchasers to purchase the Series H Shares pursuant to the Subscription
Agreement;
WHEREAS, this Agreement amends and replaces in its entirety the Series
H Registration Rights Agreement between the Company and certain Purchasers party
thereto, dated as of September 30, 2003.
NOW, THEREFORE, in consideration of the premises, and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the
following respective meanings:
(a) "Closing Date" shall mean the Closing Date, as defined in the
Subscription Agreement.
(b) "Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
(c) "Common Stock" shall mean the Common Stock, par value $0.01 per
share, of the Company.
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(d) "Exchange Act" shall mean the United States Securities Exchange
Act of 1934, or any successor thereto, as the same shall be amended from time to
time.
(e) "Excluded Shareholder" shall mean any of the Company's then
current or former directors or employees, in each case that is a Piggyback
Shareholder or a Requesting Shareholder.
(f) "Existing Registration Rights Agreement" shall mean any agreement
in existence on the date hereof providing for the registration under the
Securities Act of securities of the Company, without giving effect to any
amendments to such agreement after the date hereof..
(g) "Holder" shall mean any party hereto (other than the Company) and
each of its respective successive successors and assigns who acquire Registrable
Securities, directly or indirectly, from any such party or from any successive
successor or assign of any such party.
(h) The term "person" shall mean a corporation, association,
partnership, limited liability company, organization, business, individual,
government or political subdivision thereof or governmental agency.
(i) "Registrable Securities" shall mean the Series H Shares and the
shares of Common Stock issuable upon conversion of the Series H Shares; and any
securities issued successively in exchange for or in respect of any of the
foregoing, whether pursuant to a merger or consolidation, as a result of any
successive stock split or reclassification of, or share dividend on, any of the
foregoing or otherwise; provided, however, that such Series H Shares, Common
Stock or securities shall cease to be Registrable Securities when (i) a
registration statement registering such Series H Shares, Common Stock or
securities, as the case may be, under the Securities Act has been declared
effective and such Series H Shares, Common Stock or securities, as the case may
be, have been sold or otherwise transferred by the Holder thereof pursuant to
such effective registration statement, (ii) all of such Series H Shares, Common
Stock or securities, as the case may be, are sold pursuant to Rule 144 (or any
similar successor provision) promulgated under the Securities Act under
circumstances in which any legend borne by such Series H Shares, Common Stock or
securities relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Company or (iii) all of such
Series H Shares, Common Stock or securities, as the case may be, are eligible
for resale pursuant to Rule 144(k) of the Securities Act (or any similar
successor provision) without restriction and the Company removes any legend
borne by such Series H Shares, Common Stock or securities relating to
restrictions or transferability, under the Securities Act or otherwise.
(j) "Registration Expenses" shall have the meaning assigned thereto in
Section 4 of this Agreement.
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(k) "Rights" shall mean any option, warrant, security, right or other
instrument convertible into or exchangeable or exercisable for, or otherwise
giving the holder thereof the right to acquire, directly or indirectly, any
capital stock of the Company or any other such option, warrant, security, right
or instrument, including any instrument the value of which is measured by
reference to the value of any capital stock of the Company.
(l) "Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
(m) "Softbank Entities" shall mean SOFTBANK Capital Partners LP,
SOFTBANK Capital Advisors Fund LP, SOFTBANK Capital LP and each of their
respective successors and assigns who acquires Registrable Securities, directly
or indirectly, from any such party or from any successor or assign of any such
party.
2. Registration Under the Securities Act.
(a) Demand Registrations.
(i) At any time from and after the Closing Date, any Holder or
Holders (the "Initiating Holders") who own, in the aggregate, at least a
majority of the Registrable Securities may elect, by giving written notice
thereof to the Company, to require the Company to use its reasonable best
efforts to register all or a portion of its Registrable Securities under
the Securities Act. Promptly following such election, the Company shall (1)
give notice (the "Demand Notice") to each other Holder (collectively, the
"Other Holders") of Registrable Securities, if any, of such election, which
notice shall set forth the identity of the Initiating Holders, and (2) use
its reasonable best efforts to cause to be declared or become effective
under the Securities Act a registration statement providing for the
registration of, and the sale in accordance with the intended method or
methods of distribution thereof by the electing Holders of, the Registrable
Securities requested to be included therein in writing by the Initiating
Holders and by any Other Holders who request the inclusion in such
registration statement of their Registrable Securities by delivery of a
written notice to the Company no later than the 15th calendar day following
the date the Demand Notice is delivered by the Company. The Company shall
be required to cause to become effective pursuant to this Section 2(a) no
more than two registration statement upon any election pursuant to this
Section 2(a)(i) by the Holders unless the Company is eligible to register
the Registrable Securities on Form S-3 under the Securities Act, in which
case the Holders shall have the unlimited right to require such
registrations on Form S-3. Notwithstanding the foregoing, the Company shall
not be obligated to register Registrable Securities on Form S-3 under the
Securities Act upon any election pursuant to this Section 2(a)(i) if the
Company has registered Registrable Securities on Form S-3 or any other form
under the Securities Act twice in the preceding twelve month period upon
elections pursuant
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to this Section 2(a)(i). Notwithstanding any provisions of this Section
2(a) to the contrary, if the Company is not subject to Sections 12(b) or
(g) or 15(d) of the Exchange Act, the Holders may not exercise the demand
rights provided for under this Section 2(a)(i) until the earlier of (i) the
date 180 days after the consummation by the Company of an underwritten
public offering of its Common Stock subsequent to the date on which the
Company first ceases to be subject to such sections of the Exchange Act or
(ii) the second anniversary of the date the Company ceases to be subject to
such sections of the Exchange Act; provided, however, that the Holders may
not exercise the demand rights under this clause (ii) unless the maximum
initial public offering price of the securities to be registered as set
forth on the cover page of the registration statement in the form initially
filed with the SEC is such that it implies a valuation of all of the Common
Stock, calculated on an as-converted basis, of at least $50.0 million
(before giving effect to the receipt of any proceeds to be received by the
Company in such offering).
(ii) In the event of any registration of Registrable Securities
pursuant to Section 2(a)(i) hereof, the Company shall not, without the
express written consent of the Holders of a majority of such Registrable
Securities, cause or permit any other securities of the Company or of any
other Person (whether such securities are to be issued by the Company, are
held in the Company's treasury or are then outstanding and held by other
persons) to be covered by such registration statement or otherwise to be
included in such registration (except that such consent shall not be
required in the event such registration statement is a "shelf" that only
covers a non-underwritten offering pursuant to Rule 415 of the Securities
Act), except for Other Holders of Registrable Securities as contemplated by
Section 2(a)(i) hereof.
(iii) In the event that, following any election pursuant to
Section 2(a)(i) hereof but prior to the filing of a registration statement
in respect of such election, (A) the Board of Directors of the Company, in
its reasonable judgment and in good faith, resolves that the filing of such
registration statement and the offering of Registrable Securities pursuant
thereto would materially interfere with any significant acquisition,
corporate reorganization, financing or other similar transaction involving
the Company, and (B) the Company gives the Holders having made such
election written notice of such determination (which notice shall include a
copy of such resolution), the Company shall, notwithstanding the provisions
of Section 2(a)(i) hereof, be entitled to postpone for up to 90 days the
filing of any registration statement otherwise required to be prepared and
filed by it pursuant to Section 2(a)(i) hereof; provided, however, that no
such postponement may be effected if any other postponement of a
registration pursuant to this Section 2 was in effect during the 12 months
immediately preceding the commencement of such postponement, unless any
Holders having made elections during the previous postponement shall have
had the opportunity
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to register their Registrable Securities pursuant to an effective
registration statement prior to the current postponement.
(b) "Piggy-Back" Registrations.
(i) If, at any time, the Company proposes to register any of its
Common Stock or Rights or any other equity securities under the Securities
Act on a registration statement on Form S-1, Form S-2 or Form S-3 (or an
equivalent general registration form then in effect) for purposes of an
offering or sale by or on behalf of the Company of its Common Stock or
Rights or such equity securities for its own account (a "primary
offering"), or upon the request or for the account of any holder of its
Common Stock or Rights or any such equity securities (a "secondary
offering"), or for purposes of a combined primary and secondary offering (a
"combined offering"), then each such time the Company shall, at least 14
calendar days prior to the time when any such registration statement is
filed with the Commission, give prompt written notice to the Holders of its
intention to do so. Such notice shall specify, at a minimum, the number and
class of shares, Rights or equity securities so proposed to be registered,
the proposed date of filing of such registration statement, any proposed
means of distribution of such shares, Rights or securities, any proposed
managing underwriter or underwriters of such shares, Rights or securities
and a good faith estimate by the Company of the proposed maximum offering
price thereof, as such price is proposed to appear on the facing page of
such registration statement. Upon the written direction of any Holder or
Holders, given within seven calendar days following the receipt by such
Holder of any such written notice (which direction shall specify the number
of Registrable Securities intended to be disposed of by such Holder and the
intended method of distribution thereof), the Company shall include in such
registration statement any or all of the Registrable Securities then held
by such Holder requesting such registration (a "Selling Shareholder") to
the extent necessary to permit the sale or other disposition of such
Registrable Securities as such Holder has so directed the Company to be so
registered. Notwithstanding the foregoing, the Holders shall not have any
right under this Section 2(b) if the registration proposed to be effected
by the Company relates solely to Common Stock, Rights or other equity
securities which are issuable solely to officers, directors or employees of
the Company or any subsidiary thereof pursuant to a bona fide employee or
director stock option, bonus or other employee or director benefit plan or
as direct consideration in connection with a merger, exchange offer or
acquisition of a business.
(ii) In the event that the Company proposes to register Common
Stock, Rights or other equity securities for purposes of a primary offering
or a combined offering, and any managing underwriter shall advise the
Company and the Selling Shareholders in writing that, in its opinion, the
inclusion in the registration statement of some or all of the Registrable
Securities sought to be registered by such Selling Shareholders creates a
substantial risk that the price per
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unit the Company will derive from such registration will be materially and
adversely affected or that the number of shares, Rights or securities
sought to be registered (including, in addition to the securities sought to
be registered by the Company, any securities sought to be included in such
registration statement by any other shareholder pursuant to "piggyback"
registration rights (a "Piggyback Shareholder") and those sought to be
registered by the Selling Shareholders) is too large a number to be
reasonably sold, then the Company will include in such registration
statement such number of shares, Rights or securities as the Company, the
Piggyback Shareholders and such Selling Shareholders are so advised can be
sold in such offering without such an effect (the "Primary Maximum
Number"), as follows and in the following order of priority: (A) first,
such number of shares, Rights or securities as the Company, in its
reasonable judgment, shall have determined to sell for its own account, (B)
second, if and to the extent that the number of shares, Rights or
securities to be registered under clause (A) is less than the Primary
Maximum Number, shares, Rights or securities of each Piggyback Shareholder
party to an Existing Registration Rights Agreement that is not an Excluded
Shareholder, to the extent required to be included pursuant to any Existing
Registration Rights Agreement, and (C) third, if and to the extent that the
sum of the number of shares, Rights or securities to be registered under
clauses (A) and (B) is less than the Primary Maximum Number, Registrable
Securities of the Selling Shareholders, pro rata, and without any priority
as between the Selling Shareholders, in proportion to the number sought to
be registered by each Selling Shareholder relative to the number sought to
be registered by all the Selling Shareholders.
(iii) In the event that the Company proposes to register Common
Stock or other equity securities for purposes of a secondary offering, upon
the request or for the account of any holder thereof pursuant to "demand"
registration rights of such holder pursuant to an Existing Registration
Rights Agreement (each a "Requesting Shareholder"), and any managing
underwriter shall advise the Requesting Shareholder or Shareholders and the
Selling Shareholders in writing that, in its opinion, the inclusion in the
registration statement of some or all of the shares, Rights or securities
sought to be registered by the Requesting Shareholders and of the
Registrable Securities sought to be registered by the Selling Shareholders
creates a substantial risk that the price per unit that such Requesting
Shareholder or Shareholders and such Selling Shareholders will derive from
such registration will be materially and adversely affected or that the
number of shares, Rights or securities sought to be registered (including
any securities sought to be registered at the instance of the Requesting
Shareholder or Shareholders, any securities sought to be included in such
Registration Statement by any Piggyback Shareholder and those sought to be
registered by the Selling Shareholders) is too large a number to be
reasonably sold, the Company will include in such registration statement
such number of shares, Rights or securities as the Requesting Shareholders
and the Selling Shareholders are so advised can reasonably be sold in such
offering, or can be sold without such an effect (the
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"Secondary Maximum Number"), as follows and in the following order of
priority: (A) first, such number of shares, Rights or securities as the
Requesting Shareholders and the Piggyback Shareholders party to an Existing
Registration Rights Agreement, other than an Excluded Shareholder, shall
have requested, in each case to the extent required to be included pursuant
to any Existing Registration Rights Agreement prior to the inclusion of
Registrable Securities proposed to be registered by the Selling
Shareholders, and (B) second, if and to the extent that the number of
shares, Rights or securities to be registered under clause (A) is less than
the Secondary Maximum Number, such number of shares, Rights or securities
of the Requesting Shareholders and the Piggyback Shareholders party to an
Existing Registration Rights Agreement, other than an Excluded Shareholder,
in each case that are not required to be included in such registration
statement prior to the inclusion of Registrable Securities proposed to be
registered by the Selling Shareholders pursuant to the foregoing clause (A)
and Registrable Securities of each Selling Shareholder, pro rata, and
without any priority as between the Selling Shareholders, in proportion to
the number sought to be registered by each Selling Shareholder relative to
the number sought to be registered by all the Selling Shareholders.
(c) Withdrawals. Any Holder having notified or directed the Company to
include any or all of his or its Registrable Securities in a registration
statement pursuant to Section 2(a) or 2(b) hereof shall have the right to
withdraw such notice or direction with respect to any or all of the Registrable
Securities designated for registration thereby by giving written notice to such
effect to the Company at least five calendar days prior to the anticipated
effective date of such registration statement. In the event of any such
withdrawal, the Company shall amend such registration statement and take such
other actions as may be necessary so that such Registrable Securities are not
included in the applicable registration and not sold pursuant thereto, and such
Registrable Securities shall continue to be Registrable Securities in accordance
herewith. No such withdrawal shall affect the obligations of the Company with
respect to Registrable Securities not so withdrawn.
3. Registration Procedures.
(a) In connection with the Company's obligations with respect to any
registration of Registrable Securities pursuant to Section 2(a) hereof, the
Company shall use its reasonable best efforts to effect or cause such
registration to permit the sale of the Registrable Securities by the Holders
thereof in accordance with the intended method or methods of distribution
thereof described in the registration statement relating thereto and to maintain
the effectiveness of such registration statement for a period of six calendar
months after the date of effectiveness of such registration statement or, if
shorter, until the disposition of all of the Registrable Securities covered by
such registration statement is completed. In connection therewith, the Company
shall, as soon as reasonably possible:
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(i) prepare and file with the Commission and all other applicable
governmental or regulatory authorities a registration statement with
respect to such registration on any form which may be utilized by the
Company and which shall permit the disposition of the Registrable
Securities in accordance with the intended method or methods thereof, as
specified in writing by the Holders thereof, and use its reasonable best
efforts to cause such registration statement to become effective as soon as
reasonably possible thereafter;
(ii) prepare and file with the Commission and all other applicable
governmental or regulatory authorities such amendments and supplements to
such registration statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such registration
statement and as may be required by the applicable rules and regulations of
the Commission and the instructions applicable to the form of such
registration statement, and furnish to the underwriters, if any, of the
Registrable Securities to be registered, the sales or placement agent, if
any, therefor, and a representative of the Holders of Registrable
Securities registered thereby copies of any such supplement or amendment
prior to its being used and/or filed with the Commission;
(iii) comply in all material respects with the provisions of the
Securities Act and the requirements of all other governmental or regulatory
authorities applicable to issuers with respect to the disposition of all of
the Registrable Securities covered by such registration statement in
accordance with the intended methods of disposition by the Holders thereof
set forth in such registration statement, in any such case for a period of
six calendar months after the date of effectiveness of such registration
statement or, if shorter, until such disposition is completed;
(iv) provide (A) any Holder, (B) the underwriters (which term, for
purposes of this Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act), if
any, of the Registrable Securities to be registered, (C) the sales or
placement agent, if any, therefor, (D) counsel for such underwriters or
agent, and (E) counsel for the Holders thereof the opportunity to
participate in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each
amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such registration
statement, and throughout the period specified in Section 3(a)(iii) hereof,
make available for inspection by the parties referred to in Section
3(a)(iv), subject to execution and delivery of a confidentiality agreement
in customary form in favor of the Company by the Holders seeking to
exercise such inspection rights, the financial and other information and
books and records of the Company, and cause the officers, directors,
employees, counsel and independent certified public accountants of the
Company to respond to such inquiries, as shall be reasonably
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necessary, in the judgment of the respective counsel referred to in such
Section, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act;
(vi) promptly notify the selling Holders of Registrable Securities,
the sales or placement agent, if any, therefor and the managing underwriter
or underwriters, if any, thereof and confirm such advice in writing, (A)
when such registration statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such registration statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission and by the Blue Sky or securities commissioner
or regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and warranties of
the Company contemplated by Section 3(a)(xv) or Section 5 hereof cease to
be true and correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, or (F) at
any time when a prospectus is required to be delivered under the Securities
Act, that such registration statement, prospectus, prospectus supplement or
post-effective amendment, or any document incorporated by reference in any
of the foregoing, contains 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 light of the circumstances
then existing;
(vii) use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters, any
placement or sales agent or any Holder, promptly incorporate in a
prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such Holder
specifies should be included therein relating to the terms of the sale of
such Registrable Securities, including, without limitation, information
with respect to the number of Registrable Securities being sold by the
Holders or agent or to any underwriters, the name and description of the
Holders, agent or underwriter, the offering price of such Registrable
Securities and any discount, commission or other compensation payable in
respect thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the offering of the
Registrable Securities to be sold by the Holders or agent or to such
underwriters;
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and make all required filings of such prospectus supplement or
post-effective amendment promptly after notification of the matters to be
incorporated in such prospectus supplement or post-effective amendment;
(ix) furnish (A) to any Holder, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and the respective counsel
referred to in Section 3(a)(iv) an executed copy of such registration
statement, each such amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein), and (B) to any Holder of Registrable Securities to be registered
in such registration such number of copies of such registration statement
(excluding exhibits thereto and documents incorporated by reference therein
unless specifically so requested by any Holder, agent or underwriter, as
the case may be) and of the prospectus included in such registration
statement (including each preliminary prospectus), in conformity with the
requirements of the Securities Act, and such other documents, as any such
Holder, agent, if any, and underwriter, if any, may reasonably request in
order to facilitate the offering and disposition of the Registrable
Securities owned by any such Holder, offered or sold by such agent or
underwritten by such underwriter and to permit each Holder, agent and
underwriter to satisfy the prospectus delivery requirements of the
Securities Act; and the Company hereby consents to the use of such
prospectus (including such preliminary prospectus) and any amendment or
supplement thereto by each Holder and by any such agent and underwriter, in
each case in the form most recently provided to such party by the Company,
in connection with the offering and sale of the Registrable Securities
covered by the prospectus (including such preliminary prospectus) or any
supplement or amendment thereto;
(x) use its reasonable best efforts to (A) register or qualify the
Registrable Securities to be included in such registration statement under
such securities laws or blue sky laws of such jurisdictions as any Holder
and any placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions for
so long as may be necessary to enable the Holders, agents or underwriters
to complete their distribution of Securities pursuant to such registration
statement and (C) take any and all other actions as may be reasonably
necessary or advisable to enable the Holders, agents, if any, and
underwriters, if any, to consummate the disposition in such jurisdictions
of such Registrable Securities; provided, however, that the Company shall
not be required for any such purpose to (I) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section 3(a)(x) or (II) consent
to general service of process in any such jurisdiction;
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(xi) use its reasonable best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or local,
which may be required to effect such registration or the offering or sale
in connection therewith or to enable the Holders to offer, or to consummate
the disposition of, the Registrable Securities;
(xii) cooperate with the Holders and the managing underwriters, if
any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates shall be
in a form acceptable under the terms of the Company's By-laws, printed,
lithographed or engraved, or produced by any combination of such methods,
on steel engraved borders if required or appropriate and which shall not
bear any restrictive legends; and, in the case of an underwritten offering,
enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters may request at least
two business days prior to any sale of the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not
later than the effective date of such registration statement;
(xiv) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, and take such other actions in
connection therewith as the Holders shall reasonably request in order to
expedite or facilitate the disposition of the Registrable Securities
registered;
(xv) whether or not an agreement of the type referred to in Section
(3)(a)(xiv) hereof is entered into and whether or not any portion of the
offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent or any other entity,
(A) make such representations and warranties to the Holders and the
placement or sales agent, if any, therefor and the underwriters, if any,
thereof in form, substance and scope as are customarily made in connection
with an offering of common stock or other equity securities pursuant to any
appropriate agreement and/or to a registration statement filed on the form
applicable to such registration; (B) use its reasonable best efforts to
obtain an opinion of counsel to the Company in customary form and covering
such matters, of the type customarily covered by such an opinion, as the
managing underwriters, if any, and as the Holders may reasonably request,
addressed to the Holders and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof, and dated the effective date of such
registration statement (or if such registration statement contemplates an
underwritten offering of a part or all of the Registrable Securities, dated
the date of the closing under the underwriting agreement relating thereto);
(C) use its reasonable best efforts obtain a "comfort" letter or letters
from the independent certified public accountants of the Company addressed
to the Holders and the placement or sales agent, if any,
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therefor and the underwriters, if any, thereof, dated (I) the effective
date of such registration statement, (II) the effective date of any
prospectus supplement, if any, to the prospectus included in such
registration statement or post-effective amendment to such registration
statement which includes unaudited or audited financial statements as of a
date or for a period subsequent to that of the latest such statements
included in such prospectus and (III) dated the date of the closing under
the underwriting agreement relating thereto, such letter or letters to be
in customary form and covering such matters of the type customarily covered
by letters of such type; (D) deliver such documents and certificates,
including officers' certificates, as may be reasonably requested by the
Holders and the placement or sales agent, if any, therefor and the managing
underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or those
contained in Section 5(a) hereof and the compliance with or satisfaction of
any agreements or conditions contained in the underwriting agreement or
other agreement entered into by the Company; and (E) undertake such
obligations relating to expense reimbursement, indemnification and
contribution as are provided in Section 6 hereof;
(xvi) in the event that (i) any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as
a member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and the
By-Laws of the National Association of Securities Dealers, Inc. ("NASD"))
thereof, whether as a Holder of Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, or (ii) more than 10% of the net offering proceeds,
not including underwriting compensation, of such distribution is intended
to be paid to any such broker-dealer or "associated or affiliated persons"
of such broker-dealer or "members of the immediate family of such persons"
(each within the meaning of such Rules), the Company shall take reasonable
steps to assist such broker-dealer in complying with the requirements of
such Rules and By-Laws, including, without limitation, by (A) if such Rules
or By-Laws shall so require, engaging a "qualified independent underwriter"
(as defined in such Schedule) to participate in the preparation of the
registration statement relating to such Registrable Securities, to exercise
usual standards of due diligence in respect thereto and, if any portion of
the offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent, to recommend the
price of such Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof, and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the Rules of Fair Practice
of the NASD;
(xvii) comply in all material respects with all applicable rules and
regulations of the Commission, and make generally available to its
securityholders, as soon as practicable but in any event not later than
eighteen
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months after the effective date of such registration statement, an earning
statement of the Company and its subsidiaries complying with Section 11(a)
of the Securities Act (including, at the option of the Company, Rule 158
thereunder); and
(xviii) use its reasonable best efforts to list prior to the effective
date of such registration statement, subject to notice of issuance, the
Registrable Securities covered by such registration statement on any
securities exchange on which the Common Stock is then listed or, if the
Common Stock is not then so listed, to have the Registrable Securities
accepted for quotation of trading on the Nasdaq National Market (or a
comparable interdealer quotation system then in effect) if the Company
meets the requirements for such quotation of trading.
(b) In the event that the Company would be required, pursuant to
Section 3(a)(vi)(F) above, to notify the Holders, the placement or sales agent,
if any, therefor and the managing underwriters, if any, thereof, the Company
shall without delay prepare and furnish to the Holders, to each placement or
sales agent, if any, and to each underwriter, if any, a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of Registrable Securities, such prospectus shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing. The Holders agree that upon receipt of
any notice from the Company pursuant to Section 3(a)(vi)(F) hereof, they shall
forthwith discontinue the disposition of Registrable Securities pursuant to the
registration statement applicable to such Registrable Securities until they
shall have received copies of such amended or supplemented prospectus, and if so
directed by the Company, the Holders shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in their
possession of the prospectus covering such Registrable Securities at the time of
receipt of such notice.
(c) The Company may require the Holders to furnish to the Company such
information regarding the Holders and their intended method of distribution of
such Registrable Securities as the Company may from time to time reasonably
request in writing, but only to the extent that such information is required in
order to comply with the Securities Act. Each Holder agrees to notify the
Company as promptly as practicable of any inaccuracy or change in information
previously furnished by such Holder to the Company or of the occurrence of any
event in either case as a result of which any prospectus relating to such
registration contains or would contain an untrue statement of a material fact
regarding such Holder or such Holder's intended method of distribution of such
Registrable Securities or omits or would omit to state any material fact
regarding such Holder or its intended method of distribution of such Registrable
Securities required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and promptly
to furnish to the Company any additional information required to correct and
update any previously furnished information or required so that such prospectus
shall not contain, with respect to such Holder or the
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distribution of such Registrable Securities, 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 light of the circumstances then
existing.
(d) From the time that the Company receives any notice pursuant to
Section 2(a)(i) hereof or, as the case may be, any direction from a Holder in
connection with a primary offering, a secondary offering or a combined offering
pursuant to Section 2(b)(i) hereof until the earlier of (i) the date 90 days, or
in the event the registration of Registrable Securities relates to the Company's
first public offering under the Securities Act after the date hereof, the date
180 days, after the effectiveness of the registration statement relating thereto
or such shorter period of time as may be recommended by the managing
underwriters involved in such offering and (ii) the date an election is made not
to file a registration statement with the Commission pursuant to Section 2(c)
hereof, the Company will not offer, issue, sell, agree or commit to issue or
sell, grant any option for the purchase of, file with the Commission a
registration statement relating to any primary, secondary or combined offering
of or solicit any offer to buy (each a "Transfer") any Common Stock or any
Rights or any other equity securities, other than (A) in connection with the
Registrable Securities to be registered pursuant to such notice or direction,
(B) such equity securities as were, at the time of such notice or direction, to
be included in such primary offering, secondary offering or combined offering,
(C) pursuant to an approved employee stock option, stock purchase plan, or
similar benefit program or agreement for the benefit of employees of, or
consultants to, the Company, where the primary purpose is not to raise
additional equity capital for the Company or (D) as direct consideration for the
acquisition of a business in a merger, consolidation or similar transaction,
provided that the persons acquiring such securities agree, for the benefit of
the Holders, not to Transfer such securities for the remainder of such 90-day,
or 180-day, period, as applicable.
(e) If requested in writing by the Company or the managing
underwriter, the Holders will agree not to sell or dispose any Registrable
Securities held by such Holder for a period of no more than 180 days after the
effective date of a registration statement for the first public offering of the
Company subsequent to the date hereof so long as all directors, officers and
holders of 1% or more of the Company's outstanding capital stock execute and
deliver an agreement which is identical to the agreement the Holders were
requested to sign.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly
upon request being made therefor all expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
(a) all Commission and any NASD registration and filing fees and expenses, (b)
all fees and expenses in connection with the qualification of the Securities for
offering and sale under the State securities and blue sky laws, including
reasonable fees and disbursements of counsel for the placement or sales agent or
underwriters in connection with such qualifications, (c) all
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expenses relating to the preparation, printing, distribution and reproduction of
each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the certificates representing the Common Stock or
other equity securities to be sold and all other documents relating hereto, (d)
messenger and delivery expenses, (e) fees and expenses of any escrow agent or
custodian, (f) internal expenses of the Company (including, without limitation,
all salaries and expenses of the Company's officers and employees performing
legal or accounting duties), (g) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "comfort" letters required by or incident to such performance
and compliance), (h) fees, disbursements and expenses (including fees and
expenses of counsel) of any "qualified independent underwriter" engaged pursuant
to Section 3(a)(xvi) hereof, (i) reasonable fees, disbursements and expenses of
one counsel for all of the Holders retained in connection with any particular
registration, and fees, expenses and disbursements of any other persons retained
by the Company in connection with such registration, and (j) all fees and
expenses (including, without limitation, listing and qualification fees) in
connection with the listing or admission to quotation of the Registrable
Securities as required by Section 3(a)(xviii) hereof (collectively, the
"Registration Expenses"). To the extent that any Registration Expenses are
incurred, assumed or paid by the Holder or any placement or sales agent therefor
or underwriter thereof, the Company shall reimburse such person for the full
amount of the Registration Expenses so incurred, assumed or paid promptly after
receipt of a request therefor. Notwithstanding the foregoing, the Holders of
Registrable Securities being registered each shall pay their pro rata share
(based on their proportion of the Registrable Securities being sold by them) of
all agency fees and commissions and all underwriting discounts and commissions
attributable to the sale of the Registrable Securities and the fees and
disbursements of any counsel or other advisors or experts retained by the
Holder, other than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, each Holder
from time to time of Registrable Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary prospectus) contained therein or
furnished pursuant to Section 3(a)(ix) hereof and any further amendments or
supplements to any such registration statement or prospectus, when it becomes
effective or is filed with the Commission and all other applicable governmental
or regulatory authorities, as the case may be, and, in the case of an
underwritten offering of Registrable Securities, at the time of the closing
under the underwriting agreement relating thereto will conform in all material
respects to the requirements of the Securities Act and the requirements of all
other applicable governmental or regulatory authorities and will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
and at all times subsequent to
-16-
the effective date of such registration statement when a prospectus would be
required to be delivered under the Securities Act or the requirements of any
other applicable governmental or regulatory authorities, other than from (i)
such time as a notice has been given to Holders of Registrable Securities
pursuant to Section 3(a)(vi)(F) hereof until (ii) such time as the Company
furnishes an amended or supplemented prospectus pursuant to Section 3(b) hereof,
each such registration statement, and each prospectus contained therein or
furnished pursuant to Section 3(a)(ix) hereof, as then amended or supplemented,
will conform in all material respects to the requirements of the Securities Act
and the requirements of all other applicable governmental or regulatory
authorities and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a Holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission and all other applicable governmental or regulatory
authorities, as the case may be, as then amended or supplemented, will conform
or conformed in all material respects to the requirements of the Securities Act,
the Exchange Act and the requirements of all other applicable governmental or
regulatory authorities, as applicable, and none of such documents will contain
an untrue statement of a material fact or will omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by a Holder of Registrable
Securities expressly for use therein.
6. Indemnification.
(a) Indemnification by the Company. Upon the registration of any
Registrable Securities pursuant to Section 2 hereof, and in consideration of the
agreements of the Holders contained herein, and as an inducement to the
Purchasers to enter into the Subscription Agreement, the Company shall, and it
hereby agrees to, indemnify and hold harmless each Holder, and each person who
participates as a placement or sales agent or as an underwriter in any offering
or sale of such Registrable Securities, against any losses, claims, damages or
liabilities, joint or several, to which any such Holder, agent or underwriter
may become subject, under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any registration statement under which such
Registrable Securities were registered under the Securities Act, or any
preliminary or final prospectus contained therein or furnished by the Company to
any such Holder, agent or underwriter, or any amendment or supplement thereto,
or any document incorporated by reference
-17-
therein, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading (in the case of the Registration Statement
or any amendment thereto or any document incorporated by reference therein) or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in the case of any preliminary or
final prospectus or supplement thereto), and the Company shall, and it hereby
agrees to, reimburse any such Holder, agent and underwriter for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim; provided, however, that the Company shall
not be liable to any such person in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, preliminary or final prospectus, amendment or
supplement or incorporated document in reliance upon and in conformity with
written information furnished to the Company by such person expressly for use
therein; provided, further, that the Company shall not be liable to (i) any
Holder, underwriter or placement or sales agent under the indemnity agreement in
this subsection (a) with respect to any preliminary prospectus to the extent
that any such loss, claim, damage or liability of such Holder, underwriter or
agent, respectively, results from the fact that such Holder, underwriter or
agent sold Registrable Securities to a person to whom there was not sent or
given, at or prior to the written confirmation of such sale, a copy of the
related final prospectus if the Company has previously furnished on a timely
basis to such Holder, underwriter or agent, respectively, sufficient copies
thereof and such prospectus corrects the statement or omission, or alleged
statement or omission, out of which such loss, claim, damage or liability arises
or (ii) any Holder distributing securities otherwise than in an underwritten
offering or through a broker-dealer acting as placement agent for such Holder,
with respect to any preliminary or final prospectus to the extent that any such
loss, claim, damage or liability of such Holder arises from the fact that such
Holder delivered such preliminary or final prospectus after receipt of any
notice from the Company pursuant to Section 3(a)(vi)(F) hereof and the amended
or supplemented prospectus furnished pursuant to Section 3(b) hereof corrects
the statement or omission, or alleged statement or omission, out of which such
loss, claim, damage or liability arises.
(b) Indemnification by the Holder and any Agents and Underwriters.
Upon the registration of any Registrable Securities pursuant to Section 2
hereof, and in consideration of the Agreement of the Company, and as an
inducement to the Company to enter into the Subscription Agreement, each Holder
severally and not jointly, shall, and hereby agrees to, (i) indemnify and hold
harmless the Company, and all other Holders, if any, of Registrable Securities
selling under the same registration statement, against any losses, claims,
damages or liabilities to which the Company or such other Holders of Registrable
Securities may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such registration statement, or any preliminary
or final prospectus contained therein or furnished by the Company to the
Holders, agent or underwriter, or any amendment or supplement thereto, or arise
out of or are based upon the omission or
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alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading (in the case of the
Registration Statement or any amendment thereto or any incorporated document) or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading (in the case of any preliminary or
final prospectus or supplement thereto), in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by the Holder expressly for use therein,
and (ii) reimburse the Company for any legal or other expenses reasonably
incurred by the Company in connection with investigating or defending any such
action or claim; provided, however, that no Holder shall be required to
undertake liability under this Section 6(b) for any amounts in excess of the
dollar amount of the net proceeds (after deducting any fees, discounts and
commissions applicable thereto) to be received by such Holder from the sale of
its Registrable Securities pursuant to such registration, as reduced by any
damages or other amounts that such Holder was otherwise required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party except to the extent the indemnifying party is materially
prejudiced thereby. In case any such action shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and,
to the extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party (who may be counsel to the indemnifying party unless
representation of both parties by the same counsel would be inappropriate due to
actual or potential conflicts of interest between them), and, after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) hereof
are unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect
thereof) referred to therein, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the statements or
-19-
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation (even if the Holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no Holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the net proceeds
received by such Holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations in this Section 6(d) to contribute shall be several in proportion to
the number or amount of Registrable Securities sold or underwritten, as the case
may be, by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of any
Holder, agent or underwriter and each person, if any, who controls any Holder,
agent or underwriter within the meaning of the Securities Act; and the
obligations of the Holders contemplated by this Section 6 shall be in addition
to any liability which the Holders may otherwise have and shall extend, upon the
same terms and conditions, to each officer and director of the Company
(including any person who, with his consent, is named in any registration
statement as about to become a director of the Company) and to each person, if
any, who controls the Company within the meaning of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by any registration statement filed pursuant to Section 2(a) hereof are
to be sold pursuant to an underwritten offering, the managing underwriter or
underwriters thereof shall be designated: (i) in the event of a registration
pursuant to Section 2(a) hereof, by
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the Holders requesting such registration or (ii) in the event of a registration
pursuant to Section 2(b) hereof, by the Company.
(b) Participation by Holders. Each Holder hereby agrees that it may
not participate in any underwritten offering hereunder unless it (i) agrees to
sell its Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements or, in the case of an
underwritten offering, all customary questionnaires reasonably requested by the
Company.
8. Rule 144.
To the extent it shall be required to do so under the Exchange Act,
the Company covenants to and with each Holder of Registrable Securities that it
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including, but not limited to, the reports under Section
13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144
adopted by the Commission under the Securities Act) and the rules and
regulations adopted by the Commission thereunder, and shall take such further
action as any Holder may reasonably request, all to the extent required from
time to time to enable the Holders to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any Holder of Registrable Securities, the
Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. Without the written consent of Holders
of at least a majority of the Registrable Securities, the Company covenants and
agrees that it shall not (i) grant registration rights with respect to any
securities which would be inconsistent with the terms contained in this
Agreement or (ii) enter into or become bound by, or permit any subsidiary of the
Company to enter into or become bound by, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument which would prohibit, be
violated by, conflict with or provide that a default would arise from, the
compliance by the Company with any of the provisions of this Agreement or the
consummation of the transactions herein contemplated.
(b) Specific Performance. The Company acknowledges that it would be
impossible to determine the amount of damages that would result from any breach
by it of any of the provisions of this Agreement and that the remedy at law for
any breach, or threatened breach, of any of such provisions would likely be
inadequate and, accordingly, agrees that each Holder shall, in addition to any
other rights or remedies which it may
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have, be entitled to seek such equitable and injunctive relief as may be
available from any court of competent jurisdiction to compel specific
performance of, or restrain the Company from violating any of, such provisions.
In connection with any action or proceeding for injunctive relief, the Company
hereby waives the claim or defense that a remedy at law alone is adequate and
agrees, to the maximum extent permitted by law, to have each provision of this
Agreement specifically enforced against it, without the necessity of posting
bond or other security against it.
(c) Illegality. If any term or provision of this Agreement or any
application thereof shall be declared or held invalid, illegal or unenforceable,
in whole or in part, whether generally or in any particular jurisdiction, such
provision shall be deemed amended to the extent, but only to the extent,
necessary to cure such invalidity, illegality or unenforceability, and the
validity, legality and enforceability of the remaining provisions, both
generally and in every other jurisdiction, shall not in any way be affected or
impaired thereby.
(d) Recovery of Litigation Costs. Except as otherwise expressly
provided herein to the contrary, in the event any dispute between the parties to
this Agreement shall result in litigation, arbitration or other proceeding, the
prevailing party shall be entitled to recover from the losing party all
reasonable costs and expenses, including without limitation reasonable
attorneys' fees and disbursements, incurred by the prevailing party in
connection with such litigation or other proceeding and any appeal thereof. Such
costs, expenses, fees and disbursements shall be included in and made a part of
the judgment recovered by the prevailing party, if any.
(e) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, when delivered personally or by courier,
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested), or when received by facsimile
transmission if promptly confirmed by one of the foregoing means, as follows: If
to the Company, to it at 1114 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary, facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇, and if
to a Holder, to the address or facsimile transmission number of such Holder set
forth in the security register or other records of the Company, or to such other
address or facsimile transmission number as any party may have furnished to the
others in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(f) Parties in Interest. All the terms and provisions of this
Agreement shall be binding upon, shall inure to the benefit of and shall be
enforceable by the parties hereto and their respective successors and assigns,
but, except as set forth in this Section 9(f), no such term or provision is for
the benefit of, or intended to create any obligations to, any other persons. In
the event that any transferee of the Purchasers or any other Holder shall
acquire Registrable Securities, in any manner, whether by gift, bequest,
purchase, operation of law or otherwise, such transferee shall, without any
further writing
-22-
or action of any kind, be deemed a party hereto for all purposes and such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such
transferee shall be entitled to receive the benefits of and be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the terms hereof. Any Holder effecting
a transfer to a transferee that acquires any rights or benefits under this
Agreement as a result of such transfer shall, prior to or promptly after such
transfer is made, give written notice to the Company of such transfer,
specifying the number of Registrable Securities transferred and identifying the
transferee.
(g) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any Holder, any
director, officer, partner or employee of any Holder, any agent or underwriter
or any director, officer, partner or employee thereof, or any controlling person
of any of the foregoing, and shall survive delivery of and payment for the
Registrable Stock purchased pursuant to the Subscription Agreement and the
transfer and registration of Registrable Securities by any Holder.
(h) Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT
OF LAWS.
(i) Submission to Jurisdiction; Appointment of Agent for Service of
Process. (1)Each party hereto hereby irrevocably consents and agrees, for the
benefit of each other party hereto, that any legal action, suit or proceeding
against it with respect to its obligations, liabilities or any other matter
under or arising out of or in connection with this Agreement may be brought in
any Federal or State court located in the Borough of Manhattan, The City of New
York, and hereby irrevocably accepts and submits to the non-exclusive
jurisdiction of each such court with respect to any such action, suit or
proceeding. Each party hereto hereby waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions, suits or
proceedings brought in any such court and hereby further waives and agrees not
to plead or claim in any such court that any such action, suit or proceeding
brought therein has been brought in an inconvenient forum.
(2) Each party hereto agrees that a final judgment against it in any
action, suit or proceeding taken in any Federal or State Court in the Borough of
Manhattan, the City of New York in accordance with the immediately preceding
paragraph shall be conclusive and may be enforced in any jurisdiction by suit on
the judgment, a certified copy of which judgment shall be conclusive evidence
thereof, or by any other means provided by law.
-23-
(j) Headings. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(k) Entire Agreement; Amendments. This Agreement and the other
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
Holders of more than 50 percent of the Registrable Securities at the time
outstanding. Each Holder of any Registrable Securities at the time or thereafter
outstanding shall be bound by any amendment or waiver effected pursuant to this
Section 9(k), whether or not any notice, writing or marking indicating such
amendment or waiver appears on such Registrable Securities or is delivered to
such Holder. The entry by the Company into any contract, agreement or
understanding that directly or indirectly gives to any person the right to
register, or cause the Company to register, any securities of the Company under
the Securities Act on terms more favorable to such person than those set forth
herein shall require written approval by the Holders of more than 50 percent of
the Registrable Securities at the time outstanding.
(l) Inspection. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the Holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any Holder of Registrable Securities at the offices of the
Company at the address thereof set forth in Section 9(e) above.
(m) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
-24-
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first written above.
VIE FINANCIAL GROUP, INC.
By:
------------------------------------
Name:
Title:
SOFTBANK CAPITAL PARTNERS LP
By: SOFTBANK CAPITAL PARTNERS LLC,
its General Partner
By:
------------------------------------
Name:
Title:
SOFTBANK CAPITAL ADVISORS FUND LP
By: SOFTBANK CAPITAL PARTNERS LLC,
its General Partner
By:
------------------------------------
Name:
Title:
SOFTBANK CAPITAL LP
By: SOFTBANK CAPITAL PARTNERS LLC,
its General Partner
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON
ePLANET VENTURES L.P.
By:
----------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON
ePLANET PARTNERS FUND, LLC
By:
----------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON
ePLANET VENTURES GMBH & CO. KG
By:
----------------------------------------
Name:
Title:
-25-
Schedule I
List of Purchasers
SOFTBANK CAPITAL PARTNERS LP
SOFTBANK CAPITAL ADVISORS FUND LP
SOFTBANK CAPITAL ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON ePLANET VENTURES ▇.▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON ePLANET PARTNERS FUNDS, LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇ JURVETSON ePLANET VENTURES GMBH & CO. KG