EXHIBIT 10.17
REGISTRATION RIGHTS AGREEMENT dated as of February 26, 1999,
among ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC., a Delaware corporation (the "Corporation"), and the
Investors listed on Schedule A hereto (the "INVESTORS").
The Investors own or have the right to acquire (by the
exercise, exchange or conversion of securities that are exercisable or
exchangeable for or convertible into) Common Stock, $.001 par value per share
(the "Common Stock"), of the Corporation. The parties hereto deem it to be in
their respective best interests to set forth the rights of the Investors in
connection with public offerings and sales of the Common Stock.
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the Corporation and the
Investor hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings:
"COMMISSION" shall mean the Securities and Exchange Commission
or any other Federal agency at the time administering the Securities Act.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934
or any successor Federal statute, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"INVESTOR WARRANTS" shall mean, collectively, each stock
subscription warrant dated the date hereof, and issued by the Corporation to
each Investor, respectively.
"OTHER SHARES" shall mean at any time those shares of Common
Stock which do not constitute Primary Shares or Registrable Shares including,
but not limited to, shares of Common Stock owned by directors or officers of the
Corporation.
"PLANNED SECONDARY OFFERING" shall mean the underwritten
secondary public offering (the managing underwriters of which shall be one or
more nationally recognized investment banking firms) for the account of the
Corporation of its Common Stock pursuant to a registration statement filed under
the Securities Act which shall have been completed by the Corporation on or
before June 30, 1999 (the "Anticipated Offering Date") and results in aggregate
gross cash proceeds to the Corporation of not less than $20,000,000
(collectively, the "Secondary Offering Criteria").
"PRIMARY SHARES" shall mean at any time the authorized but
unissued shares of Common Stock or shares of Common Stock held by the
Corporation in its treasury.
"PURCHASE AGREEMENT" shall mean the Senior Preferred Stock
Purchase Agreement dated as of the date hereof, among the Corporation and the
Investors listed on Schedule 1 thereto.
"REGISTRABLE SHARES" shall mean, with respect to any Investor,
the shares of Common Stock held by such Investor which constitute Restricted
Shares.
"REGISTRATION DATE" shall mean the date upon which the
registration statement pursuant to which the Corporation shall have initially
registered shares of Common Stock under the Securities Act for sale to the
public was declared effective.
"RESTRICTED SHARES" shall mean the shares of Common Stock,
Senior Preferred Stock and shares of Common Stock issuable upon exercise or
exchange of the Investor Warrants, any other securities which by their terms are
exercisable or exchangeable for or convertible into Common Stock and any
securities received in respect thereof, in any case, which are held by an
Investor and which have not theretofore been sold to the public pursuant to a
registration statement under the Securities Act or pursuant to Rule 144.
"RULE 144" shall mean Rule 144 promulgated under the
Securities Act or any successor rule thereto or any complementary rule thereto
(such as Rule 144A).
"SECURITIES ACT" shall mean the Securities Act of 1933 or any
successor Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"SENIOR PREFERRED STOCK" shall mean the Senior Convertible
Preferred Stock, $.001 par value, of the Corporation.
"TRANSFER" shall include any disposition of any Restricted
Shares or of any interest therein which would constitute a sale thereof within
the meaning of the Securities Act other than any such disposition pursuant to an
effective registration statement under the Securities Act and complying with all
applicable state securities and "blue sky" laws.
SECTION 2. REQUIRED REGISTRATION. If the Corporation shall at
any time following six (6) months after the consummation of the Corporation's
Planned Secondary Offering if the same occurs by the Anticipated Offering Date,
or if not, then after October 15, 1999 (the "Stipulated Date"), be requested in
writing by any Investor to effect the registration under the Securities Act of
Registrable Shares, then the Corporation shall, within 10 days of such request,
deliver a written notice of such proposed registration to all holders of
outstanding Registrable Shares and shall offer to include in such proposed
registration any Registrable Shares requested to be included in such proposed
registration by the holders of Registrable Shares who or which shall respond in
writing to the Corporation's notice within 15 days after delivery thereof,
PROVIDED, HOWEVER, that such registration shall have an aggregate gross offering
price of at least $5,000,000. The Corporation shall promptly thereafter use its
best efforts to effect such registration under the Securities Act of the
Registrable Shares which the Corporation has been so requested to register;
PROVIDED, HOWEVER, that the Corporation shall not be obligated to effect any
registration under the Securities Act except in accordance with the following
provisions:
(a) the Corporation shall not be obligated to use its best
efforts to file and cause to become effective (i) more than two (2)
registration statements initiated pursuant to this Section 2 pursuant
to which the Registrable Shares requested to be included therein have
been effectively sold thereunder; PROVIDED, HOWEVER, that any
registration
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proceeding begun pursuant to this Section 2 shall not be so counted if
(x) such registration statement is subsequently withdrawn at the
request of the holders of a majority of the Registrable Shares
requested to be registered and such withdrawal is based upon material
adverse information relating to the Corporation or its condition,
business, or prospects that is different from that generally known to
the holders of Registrable Shares at the time of their request, (y) the
Investor shall have reimbursed the Corporation for all out-of-pocket
expenses incurred in connection with such withdrawn registration
statement, or (z) more than 20% of all Registrable Shares requested to
be registered in such registration statement have not been so
registered, or (ii) any registration statement during any period in
which any other registration statement (other than on Form S-4 or Form
S-8 promulgated under the Securities Act or any successor forms
thereto) pursuant to which Primary Shares are to be or were sold has
been filed and not withdrawn or has been declared effective within the
prior 180 days;
(b) the Corporation may delay the filing or effectiveness of
any registration statement for a period of up to 60 days after the date
of a request for registration pursuant to this Section 2 if:
(i) at the time of such request the Corporation is
engaged, or has fixed plans to engage within 60 days of the
time of such request, in a firm commitment underwritten public
offering of Primary Shares in which the holders of Restricted
Shares may include Registrable Shares pursuant to Section 3,
or
(ii) the Corporation determines in good faith that (A) it
is in possession of material, non-public information
concerning an acquisition, merger, recapitalization,
consolidation, reorganization or other material transaction by
or of the Corporation or concerning pending or threatened
litigation and (B) disclosure of such information would
jeopardize any such transaction or litigation or otherwise
materially harm the Corporation , and the Corporation shall
furnish to the Investor requesting such registration a
certificate signed by the President to such effect;
PROVIDED that the Corporation may not utilize the right set forth in
this clause (b) more than once in any 12-month period; and
(c) with respect to any registration pursuant to this Section
2, the Corporation may include in such registration any Primary Shares
or Other Shares; PROVIDED, HOWEVER, that if the managing underwriter
advises the Corporation that the inclusion of all Registrable Shares,
Primary Shares and Other Shares proposed to be included in such
registration would interfere with the successful marketing (including
pricing) of the Registrable Shares proposed to be included in such
registration, then the number of Registrable Shares, Primary Shares
and/or Other Shares proposed to be included in such registration shall
be included in the following order:
(i) FIRST, the Registrable Shares requested to be
included in such registration by the Investors PRO RATA based
upon the number of Restricted Shares
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(based upon Common Stock equivalents) owned by all holders of
Restricted Shares at the time of such registration;
(ii) SECOND, the Primary Shares; and
(iii) THIRD, the Other Shares.
(d) in the event that the holders of Registrable Shares
requesting registration in any given instance under this Section 2
shall require that such registration be underwritten, then the managing
underwriters therefor shall be chosen by a majority-in-interest of such
holders, subject to the consent of the Corporation, which consent shall
not be unreasonably withheld, delayed or conditioned.
SECTION 3. PIGGYBACK REGISTRATION. If the Corporation at any
time proposes for any reason to register Primary Shares or Other Shares under
the Securities Act (other than (a) the Planned Secondary Offering, PROVIDED that
it is consummated on or before the Anticipated Offering Date or (b) on Form S-4
or Form S-8 promulgated under the Securities Act or any successor forms
thereto), it shall promptly give written notice to the holders of Restricted
Shares of its intention so to register the Primary Shares or Other Shares and,
upon the written request, given within 30 days after delivery of any such notice
by the Corporation, of the holders of Restricted Shares to include in such
registration Registrable Shares (which request shall specify the number of
Registrable Shares proposed to be included in such registration), the
Corporation shall use its best efforts to cause all such Registrable Shares to
be included in such registration on the same terms and conditions as the
securities otherwise being sold in such registration. Notwithstanding the
foregoing, if the managing underwriter advises the Corporation that the
inclusion of all Registrable Shares or Other Shares proposed to be included in
such registration would interfere with the successful marketing (including
pricing) of Primary Shares proposed to be registered by the Corporation, then
the number of Primary Shares, Registrable Shares and Other Shares proposed to be
included in such registration shall be included in the following order:
(i) FIRST, the Primary Shares;
(ii) SECOND, any Registrable Shares requested to be
included in such registration, PRO RATA based upon the number
of Restricted Shares (based upon Common Stock equivalents)
owned by holders of Restricted Shares requesting inclusion of
Registrable Shares in such registration at the time of such
registration.
(iii) THIRD, the Other Shares.
SECTION 4. REGISTRATIONS ON FORM S-3. From and after the
Stipulated Date, the holders of Restricted Shares shall have the right to
request in writing up to two registrations on Form S-3 per year, or such
successor form, of Registrable Shares held by them (the Corporation to bear the
costs of such registrations), which request or requests shall (i) specify the
number of Registrable Shares intended to be sold or disposed of, (ii) state the
intended method of disposition of such Registrable Shares and (iii) relate to
Registrable Shares having an anticipated aggregate offering price of at least
$500,000. A requested registration on
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Form S-3, or any such successor form, in compliance with this Section 4 shall
not count as a registration statement initiated pursuant to Section 2 but shall
otherwise be treated as a registration initiated pursuant to Section 2 and
shall, except as otherwise expressly provided in this Section 4, be subject to
Section 2.
SECTION 5. HOLDBACK AGREEMENT. If on or before the Anticipated
Offering Date the Corporation shall consummate a Planned Secondary Offering that
meets the Secondary Offering Criteria, the Investors shall not sell publicly,
make any short sale of, grant any option for the purchase of or otherwise
dispose publicly of, any Restricted Shares without the prior written consent of
the Corporation for a period designated by the Corporation in writing to the
holders of Registrable Shares, which period shall not begin more than ten (10)
days prior to the effectiveness of the registration statement pursuant to which
such Planned Secondary Offering shall be made and shall end no later than the
later to occur of (i) 180 days after the effective date of such registration
statement and (ii) October 15, 1999; PROVIDED, HOWEVER, that each officer and
director of the Corporation and each holder of at least 1% of the outstanding
capital stock of the Corporation is bound by and complies with no less
restrictive agreements with respect thereto than the agreement set forth in this
Section 5.
SECTION 6. PREPARATION AND FILING. If and whenever the
Corporation is under an obligation pursuant to the provisions of this Agreement
to use its best efforts to effect the registration of any Registrable Shares,
the Corporation shall, as expeditiously as practicable:
(a) use its best efforts to cause a registration statement
that registers such Registrable Shares to become and remain effective
for a period of 180 days or until all of such Registrable Shares have
been disposed of (if earlier);
(b) furnish, at least five (5) business days before filing a
registration statement that registers such Registrable Shares, a
prospectus relating thereto or any amendments or supplements relating
to such a registration statement or prospectus, to counsel selected by
the Investors, copies of all such documents proposed to be filed (it
being understood that such five (5) business-day period need not apply
to successive drafts of the same document proposed to be filed so long
as such successive drafts are supplied to the counsel to the Investors
in advance of the proposed filing by a period of time that is customary
and reasonable under the circumstances);
(c) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for at least a period of 180 days or until all of
such Registrable Shares have been disposed of (if earlier) and to
comply with the provisions of the Securities Act with respect to the
sale or other disposition of such Registrable Shares;
(d) notify in writing the counsel to the Investors promptly
(i) of the receipt by the Corporation of any notification with respect
to any comments by the Commission with respect to such registration
statement or prospectus or any amendment or supplement thereto or any
request by the Commission for the amending or supplementing thereof or
for additional information with respect thereto, (ii) of the receipt by
the
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Corporation of any notification with respect to the issuance by the
Commission of any stop order suspending the effectiveness of such
registration statement or prospectus or any amendment or supplement
thereto or the initiation or threatening of any proceeding for that
purpose and (iii) of the receipt by the Corporation of any notification
with respect to the suspension of the qualification of such Registrable
Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purposes;
(e) use its best efforts to register or qualify such
Registrable Shares under such other securities or blue sky laws of such
jurisdictions as the Investor reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to
enable the holders of Registrable Shares to consummate the disposition
in such jurisdictions of such Registrable Shares; PROVIDED, HOWEVER,
that the Corporation will not be required to qualify generally to do
business, subject itself to general taxation or consent to general
service of process in any jurisdiction where it would not otherwise be
required to do so but for this paragraph (e);
(f) furnish to the holders of Registrable Shares such number
of copies of a summary prospectus or other prospectus, including a
preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as the holders of Registrable
Shares may reasonably request in order to facilitate the public sale or
other disposition of such Registrable Shares;
(g) use its best efforts to cause such Registrable Shares to
be registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of the Corporation to enable the holders of Registrable
Shares to consummate the disposition of such Registrable Shares;
(h) notify the holders of Registrable Shares on a timely basis
at any time when a prospectus relating to such Registrable Shares is
required to be delivered under the Securities Act within the
appropriate period mentioned in subparagraph (a) of this Section 6, of
the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits 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 and, at the
request of the holders of Registrable Shares, prepare and furnish to
the holders of Registrable Shares a reasonable number of copies of a
supplement to or amendment of such prospectus as may be necessary so
that, as thereafter delivered to the offerees of such shares, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(i) make available for inspection by the holders of
Registrable Shares, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or
other agent retained by the holders of Registrable Shares or any
underwriter (collectively, the "Inspectors"), all pertinent financial
and other records, pertinent corporate documents and properties of the
Corporation (collectively, the "Records"), as shall be reasonably
necessary to enable them to exercise their due
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diligence responsibility, and cause the Corporation's officers,
directors and employees to supply all information (together with the
Records, the "Information") reasonably requested by any such holders of
Registrable Shares in connection with such registration statement;
PROVIDED, HOWEVER, that any of the Information which the Corporation
determines in good faith to be confidential, and of which determination
the Inspectors are so notified, shall not be disclosed by the
Inspectors unless (i) the disclosure of such Information is necessary
to avoid or correct a misstatement or omission in the registration
statement, (ii) the release of such Information is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction or
(iii) such Information has been made generally available to the public;
and PROVIDED FURTHER, HOWEVER, that the holders of Registrable Shares
agree that they will, upon learning that disclosure of such Information
is sought in a court of competent jurisdiction, give notice to the
Corporation and allow the Corporation, at the Corporation's expense, to
undertake appropriate action to prevent disclosure of the Information
deemed confidential;
(j) use its best efforts to obtain from its independent
certified public accountants "cold comfort" letters in customary form
and at customary times and covering matters of the type customarily
covered by cold comfort letters;
(k) use its best efforts to obtain from its counsel an opinion
or opinions in customary form;
(l) provide a transfer agent and registrar (which may be the
same entity and which may be the Corporation) for such Registrable
Shares;
(m) issue to any underwriter to which the holders of
Registrable Shares may sell shares in such offering certificates
evidencing such Registrable Shares;
(n) list such Registrable Shares on any national securities
exchange on which any shares of the Common Stock are listed or, if the
Common Stock is not listed on a national securities exchange, use its
best efforts to qualify such Registrable Shares for inclusion on the
Nasdaq National Market System or such other national securities
exchange as the holders of a majority of the Registrable Shares held by
the Investor shall request;
(o) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its securityholders, as soon as reasonably practicable, earnings
statements (which need not be audited) covering a period of 12 months
beginning within three months after the effective date of the
registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act; and
(p) use its best efforts to take all other steps necessary to
effect the registration of such Registrable Shares contemplated hereby.
SECTION 7. EXPENSES. All expenses incurred by the Corporation
in complying with Section 6, including, without limitation, all registration and
filing fees (including all expenses incident to filing with the National
Association of Securities Dealers, Inc.), fees and
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expenses of complying with securities and blue sky laws, printing expenses, fees
and expenses of the Corporation's counsel and accountants and fees and expenses
of the counsel to the Investors, shall be paid by the Corporation; PROVIDED,
HOWEVER, that all underwriting discounts and selling commissions applicable to
the Registrable Shares or Other Shares shall not be borne by the Corporation but
shall be borne by the holders of Registrable Shares and holders of Other Shares
in proportion to the number of Registrable Shares or Other Shares sold by each
of them.
SECTION 8. INDEMNIFICATION.
(a) In connection with any registration of any Registrable
Shares under the Securities Act pursuant to this Agreement, the
Corporation shall indemnify and hold harmless the holders of
Registrable Shares, each underwriter, broker or any other person acting
on behalf of the holders of Registrable Shares and each other person,
if any, who controls any of the foregoing persons within the meaning of
the Securities Act against any losses, claims, damages or liabilities,
joint or several (or actions in respect thereof), to which any of the
foregoing persons 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
the registration statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or
final prospectus contained therein or otherwise filed with the
Commission, any amendment or supplement thereto or any document
incident to registration or qualification of any Registrable Shares, 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 or, with
respect to any prospectus, necessary to make the statements therein in
light of the circumstances under which they were made not misleading,
or any violation by the Corporation of the Securities Act or state
securities or blue sky laws applicable to the Corporation and relating
to action or inaction required of the Corporation in connection with
such registration or qualification under such state securities or blue
sky laws; and shall reimburse the holders of Registrable Shares, such
underwriter, such broker or such other person acting on behalf of the
holders of Registrable Shares and each such controlling person for any
legal or other expenses reasonably incurred by any of them in
connection with investigating or defending any such loss, claim,
damage, liability or action; PROVIDED, HOWEVER, that the Corporation
shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of or
is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in said registration statement,
preliminary prospectus, final prospectus, amendment, supplement or
document incident to registration or qualification of any Registrable
Shares in reliance upon and in conformity with written information
furnished to the Corporation through an instrument duly executed by the
holders of Registrable Shares or underwriter specifically for use in
the preparation thereof.
(b) In connection with any registration of Registrable Shares
under the Securities Act pursuant to this Agreement, the holders of
Registrable Shares shall severally, but not jointly, indemnify and hold
harmless (in the same manner and to the same extent as set forth in the
preceding paragraph of this Section 8) the Corporation,
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each director of the Corporation, each officer of the Corporation who
shall sign such registration statement, each underwriter, broker or
other person acting on behalf of the holders of Registrable Shares and
each person who controls any of the foregoing persons within the
meaning of the Securities Act with respect to any statement or omission
from such registration statement, any preliminary prospectus or final
prospectus contained therein or otherwise filed with the Commission,
any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such
statement or omission was made in reliance upon and in conformity with
written information furnished to the Corporation or such underwriter
through an instrument duly executed by the holders of Registrable
Shares specifically for use in connection with the preparation of such
registration statement, preliminary prospectus, final prospectus,
amendment, supplement or document; PROVIDED, HOWEVER, that the maximum
amount of liability in respect of such indemnification shall be
limited, in the case of each seller of Registrable Shares, to an
amount equal to the net proceeds actually received by the Investor
from the sale of Registrable Shares effected pursuant to such
registration.
(c) Promptly after receipt by an indemnified party of notice
of the commencement of any action involving a claim referred to in the
preceding paragraphs of this Section 8, such indemnified party will, if
a claim in respect thereof is made against an indemnifying party, give
written notice to the latter of the commencement of such action. In
case any such action is brought against an indemnified party, the
indemnifying party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably
satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be
responsible for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof; PROVIDED,
HOWEVER, that if any indemnified party shall have -------- -------
reasonably concluded that there may be one or more legal or equitable
defenses available to such indemnified party which are additional to or
conflict with those available to the indemnifying party, or that such
claim or litigation involves or could have an effect upon matters
beyond the scope of the indemnity agreement provided in this Section 8,
the indemnifying party shall not have the right to assume the defense
of such action on behalf of such indemnified party and such
indemnifying party shall reimburse such indemnified party and any
person controlling such indemnified party for that portion of the fees
and expenses of any counsel retained by the indemnified party which is
reasonably related to the matters covered by the indemnity agreement
provided in this Section 8.
(d) If the indemnification provided for in this Section 8 is
held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, claim, damage, liability or
action referred to herein, then the indemnifying party, in lieu of
indemnifying such indemnified party hereunder, shall contribute to the
amounts paid or payable by such indemnified party as a result of such
loss, claim, 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 in connection
with the statements or omissions which resulted in such loss, claim,
damage, liability or action as well as any other relevant equitable
considerations. The relative fault of the
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indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
SECTION 9. UNDERWRITING AGREEMENT. Notwithstanding the
provisions of Sections 5, 6, 7 and 8, to the extent that the holders of
Registrable Shares shall enter into an underwriting or similar agreement, which
agreement contains provisions covering one or more issues addressed in such
Sections, the provisions contained in such underwriting or similar agreement
shall control as to the party or parties so entering into such underwriting
agreement.
SECTION 10. INFORMATION BY HOLDER. Each of the holders of
Registrable Shares proposing to sell the same pursuant to a registration to
which this Agreement relates shall furnish to the Corporation such written
information regarding the holders of Registrable Shares and the distribution
proposed by such holders of Registrable Shares as the Corporation may reasonably
request in writing and as shall be reasonably required in connection with any
registration, qualification or compliance referred to in this Agreement.
SECTION 11. EXCHANGE ACT COMPLIANCE. From the Registration
Date or such earlier date as a registration statement filed by the Corporation
pursuant to the Exchange Act relating to any class of the Corporation's
securities became effective, the Corporation represents and warrants that it has
complied with and covenants that it shall comply with all of the reporting
requirements of the Exchange Act (whether or not it shall be required to do so)
and represents and warrants that it has complied with and covenants that it
shall comply with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Common Stock. The Corporation shall cooperate with the holders of
Registrable Shares in supplying such information as may be necessary for the
Investor to complete and file any information reporting forms presently or
hereafter required by the Commission as a condition to the availability of Rule
144.
SECTION 12. NO CONFLICT OF RIGHTS. The Corporation represents
and warrants to the holders of Registrable Shares that the registration rights
granted to the holders of Registrable Shares hereby do not conflict with any
other registration rights granted by the Corporation. The Corporation shall not,
after the date hereof, grant any registration rights which are superior to,
conflict with or impair the registration rights granted hereby.
SECTION 13. TERMINATION. This Agreement shall terminate and be
of no further force or effect when there shall not be any Restricted Shares
outstanding, PROVIDED that any rights granted to a holder of Restricted Shares
pursuant to Section 2 or Section 4 hereof shall terminate as to such holder at
such earlier time, if any, as such holder may sell immediately all Registrable
Shares held or entitled to be held by such holder under Rule 144 without
limitation as to volume.
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SECTION 14. SUCCESSORS AND ASSIGNS. This Agreement shall bind
and inure to the benefit of the Corporation, the holders of Registrable Shares
and, subject to Section 15, the respective successors and assigns of the
Corporation and holders of Registrable Shares.
SECTION 15. ASSIGNMENT. Each holder of Registrable Shares may
assign its rights hereunder to any purchaser or transferee of Restricted Shares;
PROVIDED, HOWEVER, that such purchaser or transferee shall, as a condition to
the effectiveness of such assignment, be required to execute a counterpart to
this Agreement agreeing to be treated as the seller or transferor hereunder
whereupon such purchaser or transferee shall have the benefits of, and shall be
subject to the restrictions contained in, this Agreement.
SECTION 16. ENTIRE AGREEMENT. This Agreement, and the Stock
Purchase Agreement dated as of the date hereof, among the Corporation and the
other parties thereto, and the other writings referred to therein or delivered
pursuant thereto, contain the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior and contemporaneous
arrangements or understandings with respect thereto.
SECTION 17. NOTICES. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated in
writing by such party to the other parties:
(i) if to the Corporation at:
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
Attention:
Telecopier:
with a copy to:
Golenbock, Eiseman, Assor & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Telecopier: 212-754-0330; and
(ii) if to an Investor, to the address set forth on
Schedule I hereto, with a copy to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery or delivery by
telecopier, on the date of such delivery, (b) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (c) in the case of mailing, on the third business day after the
posting thereof.
SECTION 18. MODIFICATIONS; AMENDMENTS; WAIVERS. The terms and
provisions of this Agreement may not be modified or amended, nor may any
provision be waived, except pursuant to a writing signed by the Corporation and
a majority-in-interest of the holders of Restricted Shares.
SECTION 19. COUNTERPARTS. This Agreement may be executed in
any number of counterparts, and each such counterpart hereof shall be deemed to
be an original instrument, but all such counterparts together shall constitute
but one agreement.
SECTION 20. HEADINGS. The headings of the various sections of
this Agreement have been inserted for convenience of reference only and shall
not be deemed to be a part of this Agreement.
SECTION 21. CONSENT TO JURISDICTION; VENUE.
(a) The Corporation hereby irrevocably and unconditionally submits, for
itself and its property, to the exclusive jurisdiction of the United States
District Court of the Southern District of New York, and any appellate court
from such court, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and the
Corporation hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such
Federal court. The Corporation may not bring or commence any such action or
proceeding except in any such court in such jurisdiction. The Corporation agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(b) The Corporation hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. The Corporation hereby irrevocably waives, to
the fullest extent permitted by law, the defense of FORUM NON CONVENIENS to the
maintenance of such action or proceeding in any such court.
(c) The Corporation hereby irrevocably appoints and designates
Golenbock, Eiseman, Assor & ▇▇▇▇ located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, or any other person having and maintaining a place of business in
the State of New York whom the Corporation may from time to time hereafter
designate (having given 30 days' notice thereof to the parties hereto), as the
true and lawful attorney and duly authorized agent for acceptance of service of
legal
12
process from the Corporation. Without prejudice to the foregoing, the
Corporation irrevocably consents to service of process in the manner provided
for notices in Section 17. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner permitted by
law.
SECTION 22. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly therein (without reference to
principles of conflicts of laws).
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first written above.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CEO
THE INVESTORS:
NAZEM & COMPANY IV, L.P.,
By: Nazem & Associates IV, L.P., its General
Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: General Partner
TRANSATLANTIC VENTURE FUND C.V.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Investment Manager
/s/ ▇▇▇▇▇ ▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
SCHEDULE A
INVESTORS
NAZEM & COMPANY IV, L.P.
c/o Nazem & Co.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
TRANSATLANTIC VENTURE FUND C.V.
c/o Nazem & Co.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇
c/o Triarc Companies, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
c/o Triarc Companies, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇