EXHIBIT 2.8
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement dated as of September 24, 1999, between
eSynch Corporation, a Delaware corporation (hereinafter referred to as the
"Corporation"), and Norton Xxxxxxxxx, individually and as trustee of each of The
Xxxxxxx Xxxxxxxxx S Corporation Trust and The Xxxxxxxx Xxxxxxxxx S Corporation
Trust (hereinafter referred to, collectively, as the "Stockholders").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Corporation and the Stockholders, INTER ALIA, are parties
to an Agreement and Plan of Reorganization dated the date hereof (hereinafter
referred to as the "Merger Agreement") providing for, among other matters, the
acquisition by the Corporation of Oxford Media Corporation in exchange for an
aggregate of 450,000 shares (hereinafter referred to as the "Shares") of the
common stock, $.001 par value (as the same may be constituted from time to time
hereinafter referred to as the "Common Stock"), of the Corporation; and
WHEREAS, it is a condition of the Merger Agreement that the Corporation
execute and deliver this Agreement to the Stockholders;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements herein contained the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following additional terms shall have
the following respective meanings:
The term "DEMAND REGISTRATION" shall have the meaning set forth in
Paragraph A of Article III hereof.
The term "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
The term "INCIDENTAL REGISTRATION" shall have the meaning set forth in
Paragraph B of Article IV.
The term "A MAJORITY OF THE REGISTRABLE SECURITIES" shall mean more
than 50% of the number of shares of the Registrable Securities, and shall apply
MUTATIS MUTANDI whenever a percentage of Registrable Securities greater than a
majority is required in this Agreement.
The term "PERSON" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or political
subdivision thereof.
The term "PROSPECTUS" shall mean the prospectus included in any
Registration Statement, as amended or supplemented by, any prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Registration Statement and all other
amendments and supplements to the Prospectus, including post-effective
amendments and all material incorporated by reference in such Prospectus.
The term "REGISTRATION EXPENSES" shall have the meaning set forth in
Article VII.
The term "REGISTRABLE SECURITIES" shall mean (i) the Shares, and
(ii) any securities issued or issuable with respect to the Common Stock
referred to in clause (i) immediately preceding by way of a stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization; provided, however, that a
security ceases to be a Registrable Security when it is no longer a
Restricted Security.
The term "REGISTRATION STATEMENT" shall mean any registration
statement of the Corporation which covers Registrable Securities pursuant to
the provisions of this Agreement, including the Prospectus, amendments
(including post-effective amendments) and supplements to such Registration
Statement, all exhibits and all material incorporated by reference in such
Registration Statement.
The term "RESTRICTED SECURITIES" shall mean any security unless or
until: (i) it has been effectively registered under the Securities Act and
disposed of in accordance with the Registration Statement covering it; (ii)
it is distributed to the public pursuant to Rule 144 (or any similar
provisions then in force) under the Securities Act; or (iii) it has otherwise
been transferred and a new certificate or other evidence of ownership for it
not bearing a restrictive legend pursuant to the Securities Act and not
subject to any stop transfer order has been delivered by or on behalf of the
Corporation and no other restriction on transfer exists.
The term "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended from time to time.
The term "SELLING EXPENSES" shall have the meaning set forth in
Article VII.
The term "SEC" shall mean the Securities and Exchange Commission.
The term "UNDERWRITTEN REGISTRATION" or "UNDERWRITTEN OFFERING"
shall mean a registration in which securities of the Corporation are sold
pursuant to a firm commitment underwriting to an underwriter at a fixed price
for reoffering or pursuant to agency or best efforts arrangements with an
underwriter.
ARTICLE II
SECURITIES SUBJECT TO THIS AGREEMENT
A. REGISTRABLE SECURITIES. The securities entitled to the benefits of
this Agreement are the Registrable Securities.
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B. HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to be a
holder of Registrable Securities whenever such Person owns Registrable
Securities or has the right to acquire such Registrable Securities, whether
or not such acquisition has actually been effected, and whether or not such
Registrable Securities or such rights are in the name of a nominee or
custodian, and disregarding any legal restrictions upon the exercise of such
right.
ARTICLE III
DEMAND REGISTRATION
The following registration rights shall exist until terminated
pursuant to Paragraph B of Article XI hereof:
A. REQUESTS FOR REGISTRATION. Subject to the provisions of Paragraph
B of this Article III hereof, any holder or holders of at least 225,000 of
the Registrable Securities may, subsequent to six months after the date
hereof, make a written request for a registration with the SEC under and in
accordance with the provisions of the Securities Act of all or part of his
Registrable Securities (herein referred to as a "Demand Registration").
Within ten days after receipt of such request, the Corporation shall give
written notice of such registration request to all holders of Registrable
Securities and shall include in any such registration all Registrable
Securities with respect to which the Corporation shall have received written
requests for inclusion therein within 15 business days after the receipt by
the applicable holder of the Corporation's notice. All requests made pursuant
to this Paragraph A shall specify the number of Registrable Securities to be
registered and shall also specify the intended methods of disposition
thereof; provided, however, that if the holders of a majority of the
Registrable Securities requested to be included in such registration request
an underwritten offering, the method of disposition shall be such an offering.
B. RESTRICTIONS ON REGISTRATIONS. The holders of Registrable
Securities shall be entitled to two Demand Registrations; provided, however,
in all cases that either such obligation shall be deemed satisfied only when
a Registration Statement or Registration Statements covering all Restricted
Securities specified in a request for a Demand Registration received as
aforesaid, for sale in accordance with the method of disposition specified in
such request, shall have become effective and, if such method of disposition
is a firm commitment underwritten public offering, all such shares have been
sold pursuant thereto. The Corporation shall not be obligated to proceed with
any Demand Registration if the Corporation shall deliver to the holders of
Registrable Securities demanding a registration an opinion reasonably
satisfactory in form and substance to such holders, of counsel, reasonably
satisfactory to such holders, that the registration of such Registrable
Shares is not necessary to permit such sale in the manner set forth in such
holders' request. In addition, the Corporation shall not be obligated to
proceed with any Demand Registration during any period during which the
Corporation would be required to undertake an audit in order to have
available for inclusion in the registration statement current financial
statements as required in accordance with the Securities Act, unless the
holders of Registrable Securities demanding a registration undertake to bear
the reasonable costs of such audit. In each case in which the Corporation is
not required to take any action, such holders shall be deemed not to have
given the request giving rise thereto, and shall be free to deliver a new
notice requesting the registration of Registrable Securities.
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C. EXPENSES. The Corporation shall pay all Registration Expenses
related to such registration, whether or not the Registration Statement with
respect to such registration has become effective, and all other expenses
incurred by the Corporation in complying with this Article III. All Selling
Expenses related to such registration shall be borne by the participating
sellers (including the Corporation, if a seller), in proportion to the number
of shares sold by each, or by such sellers as they may agree.
D. INCIDENTAL RIGHTS TO DEMAND REGISTRATIONS
(i) CONDITIONS. Neither the Corporation nor any of its
securityholders (other than the holders of Registrable
Securities) shall have the right to include any of the
Corporation's securities in any registration initiated as a
Demand Registration unless:
(a) such securities are of the same class as the Registrable
Securities included in such registration;
(b) if any of the Registrable Securities covered by such
registration are sold in an underwritten offering, the
Corporation or such securityholders, as applicable, agree in
writing to sell their securities on the same terms and
conditions as apply to the Registrable Securities being
sold; and
(c) if any of the Registrable Securities covered by such
registration are to be sold in an underwritten offering, the
managing underwriters shall not have advised the Corporation
or the holders of Registrable Securities demanding a
registration that, in their opinion, the total number of
dollar amount of the securities requested to be included in
such registration by the Corporation and/or such other
securityholders, together with the Registrable Securities
demanded to be registered hereunder, exceeds the number of
securities which can be sold in such offering.
(ii) If the Corporation registers any of its securities on its own behalf
in a registration initiated as a Demand Registration (in accordance
with the provisions of this Paragraph D), such Demand Registration
shall not count for the purpose of determining the number of Demand
Registrations to which the holders of Registrable Securities are
entitled under Paragraph B of this Article III and the Corporation
shall pay the Registration Expenses of such registration.
(iii) If any securityholders of the Corporation (other than the holders of
Registrable Securities in such capacity) register securities of the
Corporation in a Demand Registration (in accordance with the
provisions of this Paragraph D), such holders shall pay the fees and
expenses of counsel to such holders and the incremental amount of
Registration Expenses incurred as a result of their participation
unless the Corporation has agreed to pay such expenses and, in the
opinion of counsel to the Corporation, such payment shall not affect
the ability of the Registrable Shares to be qualified under the blue
sky laws of any jurisdiction.
E. SELECTION OF UNDERWRITERS. If any of the Registrable Securities
covered by a Demand Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering shall be selected by the holders of a
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majority of the Registrable Securities included in such offering; provided,
however, that such investment bankers and managers must be reasonably
satisfactory to the Corporation.
ARTICLE IV
INCIDENTAL REGISTRATIONS
A. NOT A DEMAND. A registration of Registrable Securities pursuant
to this Article IV shall not be counted as a Demand Registration under
Article III hereof.
B. NOTICE AND REQUEST FOR INCIDENTAL REGISTRATION. Whenever, after
January 1, 2000, the Corporation proposes to register any of its securities
under the Securities Act, other than pursuant to a Demand Registration or a
registration on Forms S-4 or S-8 or comparable forms (hereinafter referred to
as an "Incidental Registration"), the Corporation shall give written notice
to all holders of Registrable Securities of its intention to effect such a
registration not later than the earlier to occur of (i) the tenth day
following receipt by the Corporation of notice of exercise of other demand
registration rights or (ii) 45 days prior to the anticipated filing date.
Subject to the provisions of Paragraphs D and E of this Article IV, the
Corporation shall include in such Incidental Registration all Registrable
Securities with respect to which the Corporation has received written
requests for inclusion therein within 15 business days after the receipt by
the applicable holder of the Corporation's notice. The holders of Registrable
Securities shall be permitted to withdraw all or any part of the Registrable
Securities from an Incidental Registration at any time prior to the effective
date of such Incidental Registration. If an Incidental Registration is an
underwritten offering effected:
(i) under Paragraph D of this Article IV hereof, all Persons whose
securities are included in the Incidental Registration shall be
obligated to sell their securities on the same terms and conditions as
apply to the securities being issued and sold by the Corporation; or
(ii) under Paragraph E of this Article IV hereof, all Persons whose
securities are included in the Incidental Registration shall be
obligated to sell their securities on the same terms and conditions as
apply to the securities being sold by the Person or Persons who
initiated the Incidental Registration under said paragraph.
C. INCIDENTAL REGISTRATION EXPENSES. The Corporation shall pay all
Registration Expenses related to such registration, or incurred as a result
of the participation in an Incidental Registration of the holders of
Registrable Securities, whether or not the Registration Statement with
respect to such registration has become effective, and all other expenses
incurred by the Corporation in complying with this Article IV. All Selling
Expenses related to such registration shall be borne by the participating
sellers (including the Corporation, if a seller), in proportion to the number
of shares sold by each, or by such sellers as they may agree.
D. PRIORITY ON UNDERWRITTEN PRIMARY REGISTRATION. If an Incidental
Registration is an underwritten primary registration on behalf of the
Corporation, and the managing underwriters advise the Corporation in writing
that in their opinion the total number or dollar amount of securities
requested to be included in such registration exceeds the number or dollar
amount of securities which can be sold in such offering, the Corporation
shall include in such registration:
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(i) first, all securities the Corporation proposes to sell; and
(ii) second, the Registrable Securities and such other securities
(provided such securities are of the same class as the securities being
sold by the Corporation) requested to be included in such registration
in excess of the number of securities the Corporation proposes to sell
which, in the opinion of such underwriters, can be sold (allocated pro
rata among the holders of such Registrable Securities and other
securities on the basis of the number of securities requested to be
included therein by each such holder).
E. PRIORITY ON UNDERWRITTEN SECONDARY REGISTRATION. If an Incidental
Registration is an underwritten secondary registration on behalf of holders of
the Corporation's securities, and the managing underwriters advise the
Corporation in writing that in their opinion the number of securities requested
to be included in such registration exceeds the number of securities which can
be sold in such offering, the Corporation shall include in such registration:
(i) first, all securities requested to be included in such
registration by the securityholders initiating such registration; and
(ii) second, up to the full number of Registrable Securities and
such other securities (provided such securities are of the same class
as the securities being sold by the Corporation) requested to be
included in such registration in excess of the number of securities the
securityholders initiating such registration propose to sell which, in
the opinion of such underwriters, can be sold (allocated pro rata
among the holders of such Registrable Securities and other securities
on the basis of the number of securities requested to be included
therein by each such holder).
F. SELECTION OF UNDERWRITERS. If any Incidental Registration is an
underwritten offering, the Corporation shall have the right to select the
investment banker or investment bankers and manager or managers to administer
the offering.
ARTICLE V
HOLDBACK AGREEMENTS
A. RESTRICTIONS ON PUBLIC SALE BY HOLDER OF REGISTRABLE SECURITIES.
Each holder of Registrable Securities whose Registrable Securities are covered
by a Registration Statement filed pursuant to Article III or IV hereof agrees,
if requested by the managing underwriters, not to effect any public sale or
distribution of securities of the Corporation of the same class as the
securities included in such Registration Statement, including a sale pursuant to
Rule 144 under the Securities Act (except as part of such underwritten
registration) during the ten-day period prior to, and during the 90-day period
beginning on, the closing date of each underwritten offering (or best efforts
underwritten offering in the case of a Registration Statement filed under
Article III) of Registrable Securities made pursuant to such Registration
Statement, to the extent timely notified in writing by the Corporation or the
managing underwriters. The foregoing provisions shall not apply to any holder of
Registrable Securities if such holder is prevented by applicable statue or
regulation from entering any such agreement; provided, however, that any such
holder shall undertake, in its request to participate in any such underwritten
offering, not to effect any public sale or distribution of the applicable class
of Registrable Securities commencing on the date of sale of such applicable
class of
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Registrable Securities unless it has provided 45 days' prior written notice
of such sale or distribution to the underwriter or underwriters.
B. RESTRICTIONS ON PUBLIC SALE BY THE CORPORATION AND OTHERS. The
Corporation agrees:
(i) not to effect any public or private sale or distribution of its equity
securities, or any securities convertible into or exchangeable or
exercisable for such equity securities, including a sale pursuant to
Regulation D under the Securities Act, during the ten-day period prior
to, and during the 90-day period beginning on, the closing date of
each underwritten offering made pursuant to a Registration Statement
filed under Section 3 hereof, without the consent of the managing
underwriters of such underwritten offering, to the extent timely
notified in writing by a holder of Registrable Securities or the
managing underwriters (except as part of such underwritten
registration or pursuant to registrations on Form S-4 or S-8 or any
successor form to such Forms); and
(ii) to cause each officer and director of the Corporation who is a holder
of its equity securities, or any securities convertible into or
exchangeable or exercisable for such equity securities to agree not to
effect any public sale or distribution of any such securities during
such period, including a sale pursuant to Rule 144 under the
Securities Act (except as part of such underwritten registration, if
permitted, or with the consent of the managing underwriter of such
underwritten offering).
ARTICLE VI
REGISTRATION PROCEDURES
Whenever the holders of Registrable Securities have requested that any
Registrable Securities be registered pursuant to this Agreement, the Corporation
shall use its best efforts to effect such registration to permit the sale of
such Registrable Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Corporation shall as expeditiously
as possible:
A. prepare and file with the SEC, not later than six months after
receipt of a request to file a Registration Statement for a Demand Registration,
a Registration Statement on a form for which the Corporation then qualifies
which is satisfactory to the Corporation and the holders of a majority of the
Registrable Securities being registered (unless the offering is made on an
underwritten basis, including on a best efforts underwriting basis, in which
event the managing underwriter or underwriters shall determine the form to be
used) and which form shall be available for the sale of the Registrable
Securities in accordance with the intended method or methods of distribution
thereof, and use its best efforts to cause such Registration Statement to become
effective; provided, however, that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, including documents
incorporated by reference after the initial filing of the Registration
Statement, the Corporation shall furnish to the holders of the Registrable
Securities covered by such Registration Statement and the underwriters, if any,
copies of all such documents proposed to be filed, which documents will be
subject to the review of such holders and underwriters, and the Corporation
shall not file any Registration Statement or amendment thereto or any Prospectus
or any supplement thereto (including such documents incorporated by reference)
to which
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the holders of a majority of the Registrable Securities covered by such
Registration Statement or the underwriters, if any, shall reasonably object;
B. prepare and file with the SEC such amendments and post-effective
amendments to the Registration Statement as may be necessary to keep the
Registration Statement effective for a period of not less than six months, or
such shorter period which will terminate when all Registrable Securities covered
by such Registration Statement have been sold or withdrawn; cause the Prospectus
to be supplemented by any requested Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
C. notify the selling holders of Registrable Securities and the
managing underwriters, if any, promptly, and (if requested by any such Person)
confirm such advice in writing,
(i) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to the Registration
Statement or any post-effective amendment, when the same has become
effective;
(ii) of any request by the SEC for amendments or supplements to the
Registration Statement or the Prospectus or for additional
information;
(iii)of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(iv) if at any time the representations and warranties of the Corporation
contemplated by Paragraph o below cease to be true and correct in all
material respects;
(v) of the receipt by the Corporation 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; and
(vi) of the happening of any event which makes any statement made in the
Registration Statement, the Prospectus or any document incorporated
therein by reference untrue or which requires the making of any
changes in the Registration Statement, the Prospectus or any document
incorporated therein by reference in order to make the statements
therein not misleading;
D. make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
E. if requested by the managing underwriters or a holder of
Registrable Securities being sold, immediately incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters and the holders of a majority of the Registrable Securities
being sold and their respective counsel reasonably conclude should be
included in the Registration Statement, so that such Registration Statement
conforms in both form and substance to the requirements of the Securities
Act, including without limitation with respect to the number of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such
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underwriters and with respect to any other terms of the underwritten offering
of the Registrable Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective amendment as
soon as notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
F. promptly prior to the filing of any document which is to be
incorporated by reference into the Registration Statement or the Prospectus
(after initial filing of the Registration Statement) provide copies of such
document to counsel to the selling holders of Registrable Securities and to the
managing underwriters, if any, make the Corporation's representatives available
for discussion of such document and make such changes in such document prior to
the filing thereof as counsel for such selling holders or underwriters may
reasonably request;
G. furnish to each selling holder of Registrable Securities and each
managing underwriter, without charge, at least one signed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference);
H. deliver to each selling holder of Registrable Securities and the
underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such Persons may reasonably request (and the Corporation hereby consents to
the use of the Prospectus or any amendment or supplement thereto by each of the
selling holders of Registrable Securities and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto);
I. prior to any public offering of Registrable Securities, register or
qualify or cooperate with the selling holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions as any seller or
underwriter reasonably requests in writing and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the Registration Statement; provided,
however, that the Corporation shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject;
J. cooperate with the selling holders of Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not bearing
any restrictive legends; and 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 Registrable Securities
to the underwriters;
K. use its best efforts to cause the Registrable Securities covered by
the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the disposition of
such Registrable Securities.
L. upon the occurrence of any event contemplated by clause (vi) of
Paragraph C of this Article VI, prepare a supplement or post-effective amendment
to the Registration Statement or the Prospectus or any document incorporated
therein by reference or file any other required document so
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that, as thereafter delivered to the purchasers of the Registrable
Securities, the Prospectus shall not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading;
M. cause all Registrable Securities covered by the Registration
Statement to be listed on each securities exchange on which similar
securities issued by the Corporation are then listed if requested by the
holders of a majority of such Registrable Securities or the managing
underwriters, if any;
N. provide a transfer agent and registrar for all Registrable
Securities and a CUSIP number for all Registrable Securities, in each case
not later than the effective date of such registration statement;
O. enter into such agreements (including an underwriting agreement
reasonably satisfactory to the Corporation, containing customary
representations, warranties and agreements) and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of such
Registrable Securities and in such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
registration:
(i) make such representations and warranties to the holders of such
Registrable Securities and the underwriters, if any, in such form,
substance and scope as are customarily made by issuers to underwriters
in primary underwritten offerings and covering matters including but
not limited to, those set forth in the Merger Agreement;
(ii) obtain opinions of counsel to the Corporation and updates
thereof (which counsel and opinions, in form, scope and substance,
shall be reasonably satisfactory to the managing underwriters, if
any, and the holders of a majority of the Registrable Securities
being sold) addressed to each selling holder and the underwriters,
if any;
(iii) obtain "cold comfort" letters and updates thereof from the
Corporation's independent certified public accountants addressed to
the selling holders of Registrable Securities and the underwriters,
if any, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters to
underwriters in connection with primary underwritten offerings;
(iv) if an underwriting agreement is entered into, cause the same
to set forth in full the indemnification and contribution provisions
and procedures of Article VIII hereof, or language at least as
favorable to the holders of the Registrable Securities, with respect
to all parties to be indemnified pursuant to said Article; and
(v) deliver such documents and certificates as may be requested
by the holders of a majority of the Registrable Securities being
sold and the managing underwriters, if any, to evidence compliance
with clause (i) of this Paragraph o and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Corporation.
The obligations under this Paragraph o above shall be performed at each closing
under such underwriting or similar agreement or as and to the extent required
thereunder.
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P. make available for inspection by a representative of the sellers
of Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement, and any attorney, accountant or
other agent retained by the sellers or underwriter, all financial and other
records, pertinent corporate documents and properties of the Corporation, and
cause the Corporation's officers, directors and employees to supply all
information reasonably requested by any such representative, underwriter,
attorney, accountant or agent solely for use in connection with such
registration statement; provided, however, that any records, information or
documents that are designated by the Corporation in writing as confidential
shall be kept confidential by such Persons pursuant to such reasonable
confidentiality agreements as the Corporation may request;
Q. otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to its
security holders, earnings statements satisfying the provisions of Section
11(a) of the Securities Act, no later than 45 days after the end of any
twelve-month period (or 90 days, if such period is a fiscal year): (i)
commencing at the end of any fiscal quarter in which Registrable Securities
are sold to underwriters in an underwritten offering, or, if not sold to
underwriters in such an offering; and (ii) beginning with the first month of
the Corporation's first fiscal quarter commencing after the effective date of
the Registration Statement, which statements shall cover said twelve-month
periods.
ARTICLE VII
REGISTRATION AND SELLING EXPENSES
For purposes of this Agreement, all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities (all such expenses
being herein referred to as "Selling Expenses"), and all expenses incident to
the Corporation's performance of or compliance with this Agreement, including
without limitation:
A. all registration and filing fees (including with respect to filings
required to be made with the National Association of Securities Dealers, Inc.);
B. fees and expenses of compliance with securities or blue sky laws
(including fees and disbursements of counsel for the underwriters in connection
with blue sky qualifications of the Registrable Securities and determination of
their eligibility for investment under the laws of such jurisdictions as the
managing underwriters or holders of a majority of the Registrable Securities
being sold may designate);
C. printing, messenger, telephone and delivery expenses;
D. fees and disbursements of counsel for the Corporation, the
underwriters and for the sellers of the Registrable Securities;
E. fees and disbursements of all independent certified public
accountants of the Corporation (including the expenses of any "cold comfort"
letters required by or incident to such performance);
F. fees and disbursements of underwriters (excluding Selling Expenses);
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G. securities acts liability insurance if the Corporation so desires or
if the underwriters or selling holders of Registrable Securities so require;
H. reasonable fees and expenses of any special experts retained by
selling holders of Registrable Securities, by the Corporation at its own
initiative or at the request of the managing underwriters in connection with
such registration; and
I. fees and expenses of other Persons retained by the Corporation;
(all such expenses being herein called "Registration Expenses") shall be borne
as provided in this Agreement; it being understood and agreed that the
Corporation shall, in any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit conducted at the
end of the Corporation's fiscal year in the ordinary course of business, and the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange and securities association.
ARTICLE VIII
INDEMNIFICATION
A. INDEMNIFICATION BY CORPORATION. The Corporation agrees to
indemnify, to the full extent permitted by law, each holder of Registrable
Securities, its officers, directors, employees and Agents and each Person who
controls such holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses caused by any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as
the same are caused by or contained in any information furnished in writing
to the Corporation by such holder expressly for use therein or by such
holder's failure to deliver a copy of the Registration Statement or
Prospectus after the Corporation has furnished such holder with a sufficient
number of copies of the same. The Corporation shall also indemnify
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their officers and
directors and each Person who controls such Persons (within the meaning of
the Securities Act) to the same extent as hereinabove provided with respect
to the indemnification of the holders of Registrable Securities.
B. INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. In
connection with any Registration Statement in which a holder of Registrable
Securities is participating, each such holder will furnish to the Corporation
in writing such information and affidavits as the Corporation reasonably
requests for use in connection with any Registration Statement or Prospectus
and agrees to indemnify, to the full extent permitted by law, the
Corporation, its directors and officers and each Person who controls the
Corporation (within the meaning of the Securities Act) against any losses,
claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of a material fact or any omission or alleged
omission of a material fact required to be stated in the Registration
Statement or Prospectus or preliminary Prospectus or necessary to make the
statements therein not misleading, to the extent, but only to the extent,
that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder to the Corporation
specifically for inclusion in such Registration Statement or Prospectus. In
no event shall the liability
12
of any selling holder of Registrable Securities hereunder be greater in
amount than the dollar amount of the proceeds received by such holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation. The Corporation shall be entitled to receive indemnities from
underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to the same extent
as provided above with respect to information so furnished in writing by such
Persons specifically for inclusion in any Prospectus or Registration
Statement.
C. CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder shall (i) give prompt notice to the indemnifying
party of any claim with respect to which it seeks indemnification and (ii)
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided, however,
that any Person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but
the fees and expenses of such counsel shall be at the expense of such Person
unless (a) the indemnifying party has agreed to pay such fees or expenses, or
(b) the indemnifying party shall have failed to assume the defense of such
claim and employ counsel reasonably satisfactory to such Person, or (c) in
the reasonable judgment of any such Person and the indemnifying party, based
upon advice of their respective counsel, a conflict of interest may exist
between such Person and the indemnifying party with respect to such claims
(in which case, if the Person notifies the indemnifying party in writing that
such Person elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such claim on behalf of such Person). If such defense is not
assumed by the indemnifying party, the indemnifying party shall not be
subject to any liability for any settlement made without its consent (but
such consent will not be unreasonably withheld). No indemnifying party shall
be required to consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation. An indemnifying party who
is not entitled to, or elects not to, assume the defense of a claim will not
be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event the
indemnifying party shall be obligated to pay the fees and expenses of such
additional counsel or counsels.
D. CONTRIBUTION. If the indemnification provided for in this Article
VIII is unavailable or insufficient to hold harmless an indemnified party
under Paragraphs A or B immediately preceding, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in said
Paragraphs A or B, in such proportion as is appropriate to reflect the
relative fault of the Corporation, on the one hand, and the participating
holders of Registrable Securities, on the other, in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault 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 Corporation on the one hand or such holders on the other, and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
parties agree that it would not be just and equitable if contributions
pursuant to this Paragraph D were to be determined by pro rata allocation or
by any other method of allocation that does not take account of the equitable
considerations referred to in the prior provisions of this Paragraph D. The
amount paid by an
13
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the prior provisions of this Paragraph D shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
that is the subject of this Paragraph D. Notwithstanding the provisions of this
Paragraph D, no participating holder of Registrable Securities shall be required
to contribute any amount in excess of the amount by which the net proceeds
received from the sale of its shares exceeds the amount of any damages that it
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. For purposes of this Paragraph D no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
ARTICLE IX
RULE 144
The Corporation covenants that it shall file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder, and it shall take such further action
as any holder of Registrable Securities may reasonably request, all to the
extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any holder of Registrable
Securities, the Corporation shall deliver to such holder a written statement as
to whether it has complied with such information and requirements.
ARTICLE X
PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Person may participate in any underwritten registration hereunder
unless such Person (i) agrees to sell such Person's 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 required under the terms of such underwriting arrangements.
ARTICLE XI
MISCELLANEOUS
A. REMEDIES. Each holder of Registrable Securities, in addition to
being entitled to exercise all rights provided herein or granted by law,
including recovery of damages, shall be entitled to specific performance of its
rights under this Agreement. The Corporation agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Agreement and hereby agrees to waive the defense in
any action for specific performance that a remedy at law would be adequate.
14
B. TERM. The registration rights granted under Article III hereof
shall terminate on the tenth anniversary of the date hereof, and the
registration rights granted under Article IV hereof shall terminate on the
third anniversary of the maturity of the Note.
C. NOTICES. All notices, requests or instructions hereunder shall be
in writing and delivered personally or sent by registered or certified mail,
postage prepaid, as follows:
(i) if to the Corporation:
15502 Xxxxxx
Xxxxxx, Xxxxxxxxxx 00000
(ii) if to the Stockholders:
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Any of the above addresses may be changed at any time by notice given as
provided above; provided, however, that any such notice of change of address
shall be effective only upon receipt.
D. ENTIRE AGREEMENT. This Agreement and the documents referred to
herein contain the entire agreement of the parties hereto with respect to the
transactions contemplated hereby, and supersede all prior understandings,
arrangements, and agreements with respect to the subject matter hereof. No
modification hereof shall be effective unless in writing and signed by the
party against which it is sought to be enforced.
E. FURTHER ACTION. Each of the parties hereto shall use such party's
best efforts to take such actions as may be necessary or reasonably requested
by the other party hereto to carry out and consummate the transactions
contemplated by this Agreement.
F. SUCCESSORS AND ASSIGNS. The registration rights granted to the
Stockholders under Article III and under Article IV may be transferred to a
transferee who acquires any Shares, which transfer shall be effective when
the Corporation is given written notice by the transferor at the time of such
transfer stating the name and address of the transferee and identifying the
securities with respect to which the rights under Article III and IV are
being assigned.
G. NOTICE OF SHARES. All references herein to numbers of shares of
Registrable Securities shall be subject to appropriate adjustment for stock
splits, stock dividends and recapitalizations of the Corporation.
H. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable in the case
of agreements made and to be performed entirely within such State.
I. CAPTIONS. The captions appearing herein are for the convenience
of the parties only and shall not be construed to affect the meaning of the
provisions of this Agreement.
J. COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
eSynch Corporation
By:
-----------------------------------------
--------------------------------------------
Xxxxxx Xxxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxxx, as Trustee of The Xxxxxxx
Xxxxxxxxx S Corporation Trust
--------------------------------------------
Xxxxxx Xxxxxxxxx, as Trustee of The Xxxxxxxx
Xxxxxxxxx S Corporation Trust
EXHIBIT C
NONEXCLUSIVE LICENSE AGREEMENT
Oxford Management Corporation (Oxford Management), a Nevada
corporation, with a principal place of business at 000 Xxxx 00xx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, and Oxford Media Corporation (Oxford Media), a Delaware
corporation, with a principal place of business at 00000 Xxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxx 00000, agree as follows:
Oxford Management is the owner of proprietary software and source code
related to the Oxford Management movies-on-demand hotel pay-for-view system.
Effective as of January 13, 1999, and for the consideration of $1.00 and other
good and valuable consideration, Oxford Management grants to Oxford Media a
fully paid, nonexclusive, worldwide license under the proprietary software and
source code to make, use, sell, and lease products using and/or incorporating
the proprietary software and source code. The license shall be perpetual and
shall be assignable at any time with the business and goodwill of Oxford Media
Corporation.
OXFORD MANAGEMENT CORPORATION
By:
----------------------------------------
Norton Xxxxxxxxx, Chairman
-------------------------------------------
Date
OXFORD MEDIA CORPORATION
By:
----------------------------------------
Xxxx Xxxxxxxx, Corporate Secretary
-------------------------------------------
Date
January 13, 1999
C-1
