EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
July 18, 2000
To SWI Holdings, LLC:
This will confirm that in consideration of the provisions contained in the
Agreement and Plan of Reorganization dated the date hereof (the "Reorganization
Agreement") between Alloy Online, Inc. ("Parent"), a Delaware corporation, Alloy
Acquisition Sub, Inc. ("Acquisition Sub"), a Delaware corporation and wholly-
owned subsidiary of Parent, Xxxxx Marketing, Inc. (the "Company"), a Delaware
corporation, and you, as the sole stockholder of the Company (the
"Stockholder"), Parent hereby covenants and agrees with you as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.01 par value, of the
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Parent, as constituted as of the date of this Agreement.
"Escrow Agreement" shall mean the Escrow Agreement of even date
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herewith by and between Parent, the Company and State Street Bank and Trust
Company as escrow agent thereunder (the "Escrow Agent").
"Escrow Shares" shall mean the Merger Shares held pursuant to the
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provisions of the Escrow Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Holder" shall mean, as of any date, the Company and each other Person
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to whom the Stockholder or another Holder shall have assigned any rights
hereunder in accordance with the provisions of Section 8(e) and who owns
Registrable Securities as of such date.
"Lock-Up Agreement" shall mean the Investment Representation and Lock-
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up Agreements delivered to the Parent by the Stockholder pursuant to the
Reorganization Agreement.
"Merger Shares" shall mean the Common Stock issued pursuant to the
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Reorganization Agreement.
"Person" means an individual, corporation, partnership, limited
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liability company, joint venture, trust, university, or unincorporated
organization, or a government or any agency or political subdivision thereof.
"Proceeding" means an action, claim, suit, investigation or proceeding
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(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"Prospectus" means any prospectus included in a Registration Statement
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(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective Registration
Statement in reliance upon Rule 430A promulgated under the Securities Act), 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 any
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference in such Prospectus.
"Register," "Registered" and "Registration," whether or not
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capitalized, mean and refer to a registration effected by preparing and filing
a Registration Statement in compliance with the Securities Act, and the
declaration or ordering of the effectiveness of such Registration Statement.
"Registration Expenses" shall mean the expenses so described in
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Section 6.
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"Registrable Securities" shall mean, as of any date, shares of
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Restricted Stock and shares of Common Stock issuable upon conversion of the
Warrant; provided, however, that Restricted Shares that are Registrable
Securities shall cease to be Registrable Securities (x) upon the consummation of
any sale of such shares pursuant to (i) an effective Registration Statement
under the Securities Act or (ii) or Rule 144, (y) at such time, if any, as such
shares of Common Stock (which are issued or which may become issued upon
conversion or exchange of any other security) become eligible for sale under
Rule 144(k) under the Securities Act and (z) with respect to any Holder, on the
first date when all of the Registrable Securities then held by such Holder are
eligible for sale during any subsequent three-month period under Rule 144 and
under the Lock-Up Agreement.
"Registration Statement" means any registration statement filed with
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the Commission by the Company pursuant to the Securities Act and any additional
registration statement, including (in each case) the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference in such registration statement to be filed pursuant to the terms of
this Agreement.
"Restricted Stock" shall mean, as of any date, the Merger Shares less
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the Escrow Shares but including the shares released prior to such date by the
Escrow Agent to a Holder pursuant to the provisions of the Escrow Agreement.
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"Rule 144" means Rule 144 promulgated by the Commission pursuant to
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the Securities Act, as such Rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
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any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean the expenses so described in Section 6.
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"Underwritten Registration or Underwritten Offering" means a
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registration in connection with which securities of the Company are sold to an
underwriter for reoffering to the public pursuant to an effective Registration
Statement, excluding any registration statement relating to any employee benefit
plan, or with respect to any corporate reorganization or other transaction under
Rule 145 of the Securities Act.
"Warrant" shall mean the warrant issued by Parent to Stockholder to
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purchase shares of Common Stock pursuant to the Reorganization Agreement.
2. Initial Registration; Demand Registrations. (a) Parent shall use
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its best efforts to file, as promptly as practicable after the date hereof, and
in any event within thirty (30) days after the date hereof, a Registration
Statement of Form S-3 or any successor thereto for a public offering of all of
the Restricted Stock other than the shares issuable, if any, upon exercising the
Warrant (the "Initial Registration"), and use all commercially reasonable
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efforts to cause the same to be declared effective by the Commission as promptly
as practicable after such filing, and shall keep the initial Registration
Statement effective until the earlier of (i) 18 months after its effective
date, (ii) all shares of Restricted Stock have been sold thereunder or (iii) all
shares of Restricted Stock may be sold without registration under the Securities
Act.
(b) In addition to the Initial Registration, the Holders of at least
ten percent of the Registrable Securities may request that Parent file a
Registration Statement on Form X-0, Xxxx X-0, if available, or any successor
thereto for a public offering of all or any part of the Registrable Securities
held by such requesting stockholder or stockholders. Promptly upon its receipt
of any such request (a "Demand Request"), Parent shall provide a Notice of
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Registration Statement and a selling stockholder questionnaire (a "Selling
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Stockholder Questionnaire") to each Person which is a record holder of shares of
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Restricted Stock. To be included on such Registration Statement, a record
holder of Restricted Stock must return the completed Notice of Registration
Statement and Selling Stockholder Questionnaire within fifteen days of the date
of the Notice of Registration Statement and Selling Stockholder Questionnaire.
If after expiration of such fifteen day period, the record holders of Restricted
Stock have not indicated a wish to have Registrable Securities with an aggregate
price to the public of at least $5,000,000, with respect to any Registration
Statement on Form S-1, or $1,000,000, with respect to any Registration Statement
on Form S-3, in any event included in the Registration Statement, Parent shall
not be required to file a Registration Statement at such time. Notwithstanding
anything to
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the contrary contained herein, no Demand Request may be made (1) within 180 days
after the effective date of (A) the Initial Registration and (B) any
Registration Statement filed by the Company covering a public offering in which
the holders of Restricted Stock shall have been entitled to join pursuant to
Section 3 and (2) during the time that the Registration Statement filed pursuant
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to Section 2(a) hereof is effective, provided that such Registration Statement
has not been withdrawn or suspended permanently within 12 months of being
declared effective.
(c) If holders of Restricted Stock have indicated a wish to have
Registrable Securities with an aggregate contemplated price to the public of at
least the minimum amount specified in paragraph (b) above included in the
Registration Statement, Parent shall use all commercially reasonable efforts to
register under the Securities Act, for public sale in accordance with the method
of disposition described in paragraph (b) above, the number of shares of
Registrable Securities specified in such notice (and in all notices received by
Parent from other holders within 15 days after the giving of such notice by
Parent). Parent shall be obligated to register Registrable Securities pursuant
to this Section 2(c) on two occasions only, only one occasion of which may be
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pursuant to a registration on Form S-1; provided, however, that such obligation
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shall be deemed satisfied only when a Registration Statement covering all shares
of Registrable Securities specified in notices received as aforesaid for sale in
accordance with the method of disposition specified by the requesting holders
(i) shall have become effective or (ii) if such Registration Statement has been
withdrawn prior to the consummation of the offering at the request of the
Holders (other than as a result of a material adverse change in the business,
prospects or condition, financial or otherwise, of the Parent). Parent shall not
be required to effect a registration on Form S-1 if Parent is then eligible to
use Form S-3.
(d) If the intended method of disposition is an Underwritten Offering,
the holders of a majority of the shares of Registrable Securities to be sold in
such Underwritten Offering shall designate the managing underwriter thereof,
subject to the approval of Parent, which approval shall not be unreasonably
withheld.
(e) Parent (or at the option of Parent, other holders of Parent's
Common Stock) shall be entitled to include in any Registration Statement filed
pursuant to the provisions of this Section 2 shares of Common Stock to be sold
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by Parent (or such other holders) for its (or their) own account, except as and
to the extent that such method of disposition is an Underwritten Offering and in
the opinion of the managing underwriter such inclusion would adversely affect
the marketing of the Registrable Securities to be sold. For purposes of this
Section 2, in any circumstance in which all of the Registrable Securities and
other shares of Common Stock or other securities of Parent (including shares of
Common Stock issued or issuable upon conversion of any outstanding securities of
Parent) with registration rights (the "Other Shares") requested to be included
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in a registration on behalf of a Holder, Parent or other selling stockholders
cannot be so included as a result of limitations of the aggregate number of
shares of Registrable Securities and Other Shares that may be so included, the
number of shares of Registrable Securities and Other Shares that may be so
included, if any, shall be allocated first to such Holders, second to Parent for
securities being sold for its own account and third to all other holders of
Common Stock who timely exercised their piggy-back registration rights pro rata
based upon their total ownership of the aggregate number of shares requested to
be included
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in such registration by the holders of piggy-back registration rights.
(f) Parent may defer the filing (but not the preparation) of a
Registration Statement required to be filed by this Section 2(c) until a date
not later than 90 days after the date of its receipt of a Demand Request, but in
any event not more than once in any 12 month period, if:
(1) on the date hereof or at the time Parent receives the Demand
Request there is material non-public information regarding Parent
which the Board reasonably determines not to be in Parent's interest
to disclose and which Parent is not otherwise required to disclose, or
(B) the Parent is then pursuing a significant business transaction
(including but not limited to the acquisition or disposition of assets
(other than in the ordinary course of business) or any merger,
consolidation, tender offer or other similar transaction) which would
require disclosure in a Registration Statement but that the Board
reasonably determines not to be in Parent's best interest to disclose;
or
(2) prior to receiving the Demand Request, the Board had
determined to effect an Underwritten Offering and the Company had
taken substantial steps and is proceeding with reasonable diligence to
effect such Underwritten Offering.
A deferral of the filing of a Registration Statement pursuant to this
subsection (f) shall be lifted, and the requested Registration Statement shall
be filed forthwith, if, (x) in the case of a deferral pursuant to clause (1)(A),
the material non-public information is made public by Parent or is no longer
material, (y) in the case of a deferral pursuant to clause (1)(B), the
significant business transaction is disclosed by Parent or is terminated, or (z)
in the case of a deferral pursuant to clause (2), the proposed registration for
Parent's account is abandoned or not filed with the Commission within 90 days of
its receipt of the Demand Request. In order to defer the filing of a
Registration Statement pursuant to this subsection (f), Parent shall promptly
(but in any event within 10 days), upon determining to seek such deferral,
deliver to the Holders a certificate signed by an executive officer of Parent
stating that Parent is deferring such filing pursuant to this subsection (f) and
containing an approximation of the anticipated delay. Within 20 days after
receiving such certificate, the holders of a majority of the Registrable
Securities held by the Holders and for which registration was previously
requested may withdraw such Demand Request by giving written notice to Parent.
3. Piggyback Registrations. (a) Parent shall notify all holders of
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Registrable Securities in writing at least twenty (20) days prior to the filing
of any Registration Statement under the Securities Act for purposes of a public
offering of securities of Parent (including, but not limited to, Registration
Statements relating to secondary offerings of securities of Parent, but
excluding Registration Statements relating to employee benefit plans or with
respect to corporate reorganizations or other transactions under Rule 145 of the
Securities Act) and will afford each such stockholder an opportunity to include
in such Registration Statement all or part of such Registrable Securities held
by such stockholder. Each Holder wishing to include in any such Registration
Statement all or any part of the Registrable Securities held by it shall, within
fifteen (15) days after the above-described notification from Parent, so notify
Parent in writing. Such notice shall state the intended method of disposition
of the Registrable Securities by such Holder.
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If a Holder decides not to include all of its Registrable Securities in any
Registration Statement thereafter filed by Parent, such Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any such subsequent Registration Statement or Registration Statements as may be
filed by Parent with respect to offerings of its securities, all upon the terms
and conditions set forth herein.
(b) If the Registration Statement under which Parent gives notice
under this Section 3 is for an Underwritten Offering, Parent shall so advise the
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Holders of Registrable Securities. In such event, the right of any such Holder
to be included in a registration pursuant to this Section 3 shall be conditioned
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upon such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent provided
herein. All Holders proposing to distribute their Registrable Securities
through such Underwritten Offering shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
Underwritten Offering by Parent. Notwithstanding any other provision of the
Agreement, if the underwriter of any such Underwritten Offering determines in
good faith that marketing factors require a limitation of the number of shares
to be underwritten, the number of shares that may be included in the
Underwritten Offering shall be allocated, first, to Parent and second, to the
Holders and any other stockholders of Parent on a pro rata basis, based upon the
amount of such securities sought to be included in such Registration, unless
such registration is being undertaken at the demand of any other stockholder(s)
of Parent, in which event the number of shares that may be included in the
Underwritten Offering shall be allocated, first, to Parent and such
stockholder(s) in such manner at they may determine, and second, to the Holders
of Registrable Securities hereunder and any other shareholder(s) of Parent
entitled to participate therein on a pro rata basis. No such reduction shall
reduce the securities being offered by Parent for its own account to be included
in the registration and Underwritten Offering.
(c) Parent shall have the right to terminate or withdraw any
registration initiated or withdraw any registration initiated by it under this
Section 3 prior to the effectiveness of such registration whether or not any
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stockholder has elected to include securities in such registration. The
Registration Expenses of such withdrawn registration shall be borne by Parent in
accordance with Section 6 hereof.
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4. Registration Procedures. If Parent is required by the provisions of
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Section 2 or 3 to file a Registration Statement covering shares of Restricted
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Stock, Parent agrees to, as expeditiously as possible:
(a) subject to the provisions of Section 2 or 3, as applicable,
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prepare and file with the Commission such Registration Statement including such
securities and use all commercially reasonable efforts to cause such
Registration Statement to become effective;
(b) subject to the provision of Section 4(a), prepare and file
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with the Commission such amendments and supplements to such Registration
Statement and the Prospectus included therein as may be necessary or required to
keep such Registration Statement
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effective for the period of distribution contemplated hereby, and comply with
all applicable provisions of the Securities Act;
(c) use all reasonable efforts to prevent the issuance of any stop
order or other order suspending the effectiveness of such Registration Statement
and, if such an order is issued, to obtain the withdrawal thereof at the
earliest possible time and to immediately notify each holder of Restricted Stock
included in such Registration Statement of such order;
(d) furnish to each seller of Registrable Securities such number
of copies of the Prospectus included in such Registration Statement (including
each preliminary Prospectus) as such Persons reasonably may request in order to
comply with the requirements of the Securities Act;
(e) notify the holders of Registrable Securities included in the
Registration Statement upon the occurrence of any event as a result of which the
Prospectus included in such Registration Statement, as then in effect, contains
an untrue statement of 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 as promptly as practicable,
prepare, file and furnish to such holders a reasonable number of copies of a
supplement or an amendment to such Prospectus as may be necessary so that such
Prospectus does not contain an untrue statement of 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;
provided, however, that Parent may delay preparing, filing and distributing any
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such supplement or amendment if Parent determines in good faith that such
supplement or amendment might, in the reasonable judgment of Parent, (i)
interfere with or affect the negotiation or completion of a transaction that is
being contemplated by Parent (whether or not a final decision has been made to
undertake such transaction) or (ii) involve initial or continuing disclosure
obligations that are not in the best interests of Parent's stockholders at such
time; and provided, further, that (x) Parent shall give notice (a "Standstill
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Notice") of any such delay, (y) such delay shall not extend, with respect to any
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registration effected pursuant to the provisions of Section 2, for a period of
more than thirty (30) days without the written consent of the holders of a
majority of the Registered Stock included in such Registration Statement and (z)
Parent shall not exercise such right more than twice during any twelve-month
period;
(f) if required, use all commercially reasonable efforts to
register or qualify the Registrable Securities covered by such Registration
Statement under the securities or "blue sky" laws of such United States
jurisdictions as the sellers of Registrable Securities or, in the case of an
underwritten public offering, the managing underwriter or underwriters
reasonably shall request; provided, however, that Parent shall not for any such
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purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(g) use all commercially reasonable efforts to include the
Registrable Securities covered by such Registration Statement on the NASDAQ
National Market or any other securities exchange on which the Common Stock of
Parent is then listed;
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(h) if the Stockholder distributes Registrable Securities to its
members during the effective period of a Registration Statement, use all
commercially reasonable efforts to amend or supplement such Registration
Statement to reflect such distribution;
(i) in the event of an Underwritten Offering of the Registrable
Securities, enter into and perform its obligations under an underwriting
agreement, in usual and customary form reasonably acceptable to Parent, with the
managing underwriter of such offering; and
(j) keep a Registration Statement, other than the Initial
Registration Statement, filed pursuant to the provisions hereof effective until
the earliest of (i) the sale of all of the shares included thereunder and (ii)
the date that is ninety (90) days after the effective date of such Registration
Statement.
5. Obligations of Holder. In connection with the registration of the
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Restricted Stock pursuant to a Registration Statement, each holder of shares of
Restricted Stock included thereon shall:
(a) furnish to Parent such information regarding itself and the
intended method of disposition as necessary to assure compliance with federal
and applicable state securities laws or as Parent shall reasonably request;
(b) upon receipt of any notice from Parent of the happening of any
event of the kind described in Section 4(c), immediately discontinue disposition
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of Registrable Securities pursuant to the Registration Statement until
withdrawal of the stop order referred to in Section 4(c); and
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(c) not sell or otherwise transfer any Registrable Securities
during the period from the date specified in the Standstill Notice given by
Parent pursuant to Section 4(e) above that Parent has determined that it will
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delay the preparation and filing of an amendment or supplement to the Prospectus
included in the Registration Statement until the expiration date specified in
such notice.
6. Expenses. All expenses incurred by Parent in complying with
Sections 2, 3 or 4, including, without limitation, all registration and filing
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fees, printing expenses, fees and disbursements of counsel and independent
public accountants for Parent, fees and expenses incurred in connection with
complying with state securities or "blue sky" laws, fees payable to the National
Association of Securities Dealers, Inc., fees payable to any securities exchange
or over-the-counter market quotation system (i.e., NASDAQ National Market
System), the reasonable fees of one counsel to the sellers of Registrable
Securities selected by the holders of a majority of such shares participating in
the registration, and fees of transfer agents and registrars, but excluding any
Selling Expenses, are called "Registration Expenses." All underwriting discounts
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and selling commissions, fees of advisors (other than counsel) to sellers of
Restricted Stock and transfer and similar taxes are called "Selling Expenses."
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Parent will pay all
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Registration Expenses. All Selling Expenses shall be borne by the participating
sellers pro rata on the basis of the number of shares so registered.
7. Indemnification and Contribution. If any Registrable Securities are
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included in a Registration Statement under this Agreement:
(a) to the extent permitted by law, Parent shall indemnify and hold
harmless each selling Holder, the Holder's direct and indirect subsidiaries and
affiliates, and each of their partners, directors, officers, employees,
stockholders, agents and representatives (all referred to as "Holder
Indemnitees") against any losses, claims, damages, liabilities or reasonable
out-of-pocket expenses (whether joint or several) (collectively, including legal
or other expenses reasonably incurred in connection with investigating or
defending same, "Losses"), insofar as any such Losses arise out of or are based
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upon any untrue statement or alleged untrue statement of a material fact
contained in such Registration Statement or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Parent will reimburse such selling Holders
for any legal or other expenses as reasonably incurred by any such Holder
Indemnitee in connection with investigating or defending any Loss; provided,
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however, that the foregoing indemnity shall not apply to amounts paid in
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settlement of any Loss if such settlement is effected without the consent of
Parent (which consent shall not be unreasonably withheld), nor shall Parent be
obligated to indemnify any Holder Indemnitee for any Losses to the extent that
such Losses arise out of or are based upon and in conformity with written
information furnished by such Holder Indemnitee for use in such Registration
Statement; and provided, further, that Parent shall not be required to indemnify
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any Holder Indemniteeto the extent that any Loss results from such Person
selling Common Stock (i) to a Person to whom there was not sent or given, at or
prior to the written confirmation of the sale of such shares, a copy of the
Prospectus, as most recently amended or supplemented, if Parent has previously
furnished or made available copies thereof or (ii) following written notice by
Parent of an event described in Section 4(c) or 4(e).
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(b) to the extent permitted by law, each selling Holder agrees to
indemnify and hold harmless Parent, the officers, directors, employees, agents
and representatives of Parent, and each Person, if any, who controls Parent
within the meaning of the Securities Act or the Exchange Act, against all Losses
to the extent that any such Losses arise out of or are based upon and in
conformity with information furnished by such stockholder for use in such
Registration Statement; and each selling Holder agrees to reimburse all legal or
other expenses as reasonably incurred by Parent and any such officer, director,
employee, agent, representative, or controlling Person, in connection with
investigating or defending any such Loss; provided, however, that the foregoing
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indemnity shall not apply to amounts paid in settlement of any such Loss if such
settlement is effected without the consent of such Holder, which consent shall
not be unreasonably withheld; provided, further, that, in no event shall any
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indemnity under this Section 7(b) exceed the sales price of the Registrable
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Securities sold by such Holder under the applicable Registration Statement; and
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(c) promptly after receipt by an indemnified party under this Section
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7 of notice of the commencement of any Proceeding (including by reason of any
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governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 7, deliver to
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the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in and to assume the
defense thereof with counsel mutually satisfactory to the parties; provided,
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however, that an indemnified party shall have the right to retain its own
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counsel, with the reasonably incurred fees and expenses of one such counsel to
be paid by the indemnifying party, if representation of such indemnified party
by the counsel retained by the indemnifying party would be inappropriate under
applicable standards of professional conduct due to actual or potential
conflicting interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such Proceeding, to the extent prejudicial to its ability to defend such
Proceeding, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 7 with respect to such Proceeding, but the
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omission so to deliver written notice to the indemnifying party will not relieve
it of any liability that it may have to any indemnified party otherwise than
under this Section 7 of with respect to any other Proceeding.
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8. Miscellaneous.
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(a) All notices, requests, consents and other communications hereunder
shall be in writing and shall be delivered in person, mailed by certified or
registered mail, return receipt requested, or sent by telecopier or telex,
addressed as follows:
(i) if to Parent at its address or facsimile number set forth in
the Reorganization Agreement with a copy to Mintz, Levin, Xxxx, Xxxxxxx and
Popeo, P.C., 000 Xxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000,
Attention: Xxxxxxx X. Xxxx, Facsimile: (000) 000-0000;
(ii) if to the Company or another Holder of Restricted Stock, at
the address or facsimile number set forth under such stockholder's name on
the signature page hereto with a copy to Xxxxxx Godward LLP, Xxx Xxxxxxxx
Xxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000-0000, Attention: Xxxxxx X.
Xxxxxxxxx, Facsimile (000) 000-0000; and
or, in any case, at such other address or addresses as shall have been furnished
in writing to Parent (in the case of a holder of Restricted Stock) or to the
holders of Restricted Stock (in the case of Parent) in accordance with the
provisions of this paragraph.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to its conflicts of
laws provisions.
(c) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of Parent and the holders of
at least a majority of the outstanding shares of Restricted Stock.
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(d) The obligations of Parent to keep a Registration Statement which
includes Shares of Registrable Securities effective under Section 2 or Section 3
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shall terminate with respect to any Holder upon such time as all of the
Registrable Securities then held by such Holder are eligible for sale during any
single three month period under Rule 144 and under the Lock-Up Agreement.
(e) The rights hereunder of the Company or another Holder may be
assigned to a transferee of the Restricted Stock as long as: (i) Parent is,
within ten (10) days following such transfer, furnished with written notice of
the name and address of such transferee, (ii) the transferee agrees in writing
with Parent to be bound by all of the provisions hereof and (iii) such transfer
is made in accordance with the applicable requirements of the Lock-Up Agreement.
No rights under this Agreement shall be assigned to any Person to whom less than
a majority of the Restricted Stock held by transferor are transferred; it is
understood, however, that assignment rights under this Agreement are permissible
if made in connection with, distributions without consideration, such as by a
partnership to its partners or a limited liability company to its members. The
rights to cause Parent to register Registrable Securities pursuant to this
Agreement may be assigned by the Company to a transferee or assignee of
Registrable Securities without the prior consent of Parent or Acquisition Sub if
such assignment is made to a member of the Company who receives Restricted Stock
in connection with the dissolution and liquidation of the Company provided the
Company shall, within ten (10) days after such transfer, furnish to Parent
written notice of the name and address of such transferee or assignee and the
Restricted Stock with respect to which such registration rights are being
assigned and such transferee shall agree in writing to be subject to all
restrictions set forth in this Agreement and the Lock-Up Agreement by executing
and delivering to Parent a copy of the signatures pages hereof and thereof or
such other instruments of ascession to the provisions hereof and thereof as
Parent reasonably may request.
(f) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
(g) 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.
[BALANCE OF PAGE INTENTIONALLY BLANK]
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Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this Agreement shall be a
binding agreement between Parent and you.
ALLOY ONLINE, INC.
By:
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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AGREED TO AND ACCEPTED.
SWI Holdings, LLC
-----------------------------------------
(Name of Stockholder)
-----------------------------------------
(Signature)
Xxxx Xxxxx
-----------------------------------------
(Print Name)
Managing Member
-----------------------------------------
(Title, if applicable)
Stockholder's Address for Notice:
-----------------------------------------
-----------------------------------------
-----------------------------------------
[COUNTERPART SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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