EXHIBIT 2(c)
REGISTRATION RIGHTS AGREEMENT
by and among
SWWT, INC.
and the
INITIAL SECURITIES HOLDERS PARTY HERETO
Dated as of January 31, 2002
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
January __, 2002 and is by and among SWWT, INC., a Delaware corporation (the
"Company"), and the parties identified in Schedule A hereto (the "Initial
Securities Holders").
WHEREAS, the Company, E-Newco, Inc., a Delaware corporation and
wholly-owned subsidiary of the Company ("E-Newco") and SanVision Technology
Inc., a New Jersey corporation ("SVT"), have entered into that certain Second
Amended and Restated Agreement and Plan of Merger, dated as of December 18, 2001
(the "Merger Agreement"), pursuant to which E-Newco is being merged with and
into SVT, with SVT being the surviving entity and a wholly-owned subsidiary of
the Company (the "Merger");
WHEREAS, in the Merger, the Company is changing its name to "SVT Inc.";
WHEREAS, the transactions contemplated by the Merger Agreement are to
be consummated at the closing (the "Closing");
WHEREAS, the Company and SVT have agreed that entering into this
Agreement is a condition precedent to consummating the Merger;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
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1.1 Defined Terms. (a) As used in this Agreement, the following terms shall
have the following meanings:
"Agreement" shall mean this Registration Rights Agreement, as it may be
amended, supplemented or otherwise modified from time to time.
"Closing" shall have the meaning assigned to such term in the Recitals.
"Commission" shall mean the United States Securities and Exchange
Commission or any successor thereto.
"Common Stock" shall mean common stock of the Company, par value $.001
per share, and shall also include (a) any securities issued as a dividend or
distribution on such shares of Common Stock, and (b) any securities into which
such Common Stock is converted in any merger, consolidation, reclassification,
exchange transaction or any such similar transaction.
"Company" shall have the meaning assigned to such term in the Preamble.
"Company Public Sale Event" shall mean any sale by the Company of
Common Stock for its own account or any sale of Common Stock for the account of
third parties in an underwritten transaction, in each case as contemplated by
subsection 3.1 pursuant to an effective Registration Statement filed by the
Company, filed on Form S-1 or any other form for the general registration of
securities with the Commission (other than a Registration Statement filed by the
Company on either Form S-4 or Form S-8 or any registration in connection with a
standby underwriting in connection with the redemption of outstanding
convertible securities).
"Company Sale Notice" shall means a written notice pursuant to
subsection 3.1 from the Company to each Securities Holder stating that the
Company proposes to effect a Company Public Sale Event and which sets forth (i)
the expected maximum and minimum number of shares of Common Stock proposed to be
offered
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and sold, (ii) the lead managing underwriter, if applicable or selected and
(iii) the proposed method of distribution and the expected timing of the
offering.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and any rules and regulations promulgated thereunder, and any successor
federal statute, rules or regulations.
"Form S-1" shall mean such form of registration statement under the
Securities Act as in effect on the date hereof or any successor form thereto.
"Form S-3" shall mean such form of registration statement under the
Securities Act as in effect on the date hereof or any successor form thereto.
"Form S-4" shall mean such form of registration statement under the
Securities Act as in effect on the date hereof or any successor form thereto.
"Form S-8" shall mean such form of registration statement under the
Securities Act as in effect on the date hereof or any successor form thereto.
"Initial Shares" shall mean the shares of Common Stock held by the
Initial Securities Holders on the date hereof, representing in the aggregate
shares of Common Stock.
"Initial Securities Holder" shall have the meaning assigned to such
term in the Preamble.
"Losses" shall have the meaning given thereto in Section 5.7(a)(i).
"NASD" shall mean the National Association of Securities Dealers, Inc.
or any successor thereto.
"Person" shall mean an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
"Piggybacking Securities Holders" shall mean Securities Holders selling
Registrable Common in connection with a Company Public Sale Event pursuant to
subsection 3.3.
"Preliminary Prospectus" shall mean each preliminary prospectus
included in a Registration Statement or in any amendment thereto prior to the
date on which such Registration Statement is declared effective under the
Securities Act, including any prospectus filed with the Commission pursuant to
Rule 424(a) under the Securities Act.
"Prospectus" shall mean each prospectus included in a Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
Registration Statement in accordance with Rule 430A), together with any
supplement thereto, and any material incorporated by reference into such
Prospectus, all as filed with, or transmitted for filing to, the Commission
pursuant to Rule 424(b) under the Securities Act.
"Purchase Agreement" shall mean any written agreement entered into by
any Securities Holder providing for the sale of Registrable Common in the manner
contemplated by a related Registration Statement, including the sale thereof to
an underwriter for an offering to the public.
"Registrable Common" shall mean the Initial Shares and any other
securities issued as a dividend or other distribution with respect to, or in
exchange for or in replacement of, the Initial Shares; provided, however, that
any such Registrable Common shall cease to be Registrable Common when (i) a
Registration Statement with respect to the sale of such Registrable Common has
been declared effective under the
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Securities Act and such securities have been disposed of in accordance with the
plan of distribution set forth in such Registration Statement, (ii) such shares
are disposed of pursuant to Rule 144 (or any similar provisions then in force)
under the Securities Act, (iii) such Registrable Common shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer under the Securities Act shall have been delivered
by the Company and they may be resold without subsequent registration or
qualification under the Securities Act or any state securities laws then in
force, or (iv) such securities shall cease to be outstanding; provided, however,
that any securities that have ceased to be Registrable Common cannot thereafter
become Registrable Common, and any security that is issued or distributed in
respect to securities that have ceased to be Registrable Common shall not be
Registrable Common.
"Registration" shall mean a registration of securities pursuant to the
Securities Act.
"Registration Statement" shall mean any registration statement
(including the Preliminary, the Prospectus, any amendments (including any
post-effective amendments) thereof, any supplements and all exhibits thereto and
any documents incorporated therein by reference pursuant to the rules and
regulations of the Commission), filed by the Company with the Commission under
the Securities Act in connection with a Company Public Sale Event.
"Responsible Officer" shall mean, as to the Company, the chief
executive officer, the president, the chief financial officer or any executive
or senior vice president of the Company.
"Rule 144" shall mean Rule 144 promulgated by the Commission under the
Securities Act, or any successor to such Rule.
"Rule 415" shall mean Rule 415 promulgated by the Commission under the
Securities Act, or any successor to such Rule.
"Rule 424" shall mean Rule 424 promulgated by the Commission under the
Securities Act, or any successor to such Rule.
"Rule 430A" shall mean Rule 430A promulgated by the Commission under
the Securities Act, or any successor to such Rule.
"Sale Event" shall mean any sale by the Company of Common Stock
pursuant to a Company Public Sale Event or any sale by any Securities Holder of
Registrable Common participating in such Company Public Sale Event pursuant to
Section 3.3.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
any rules and regulations promulgated thereunder and, any successor federal
statutes, rules or regulations.
"Securities Holder" or "Securities Holders" shall mean the Initial
Securities Holders, their successors and any transferee thereof to whom the
rights and obligations of a Securities Holder are transferred pursuant to
subsection 5.8.
"Securities Holders' Counsel" shall mean the law firm appointed by
Securities Holders owning a majority of the Registrable Common held by
Securities Holders at the time of such appointment representing all of the
Securities Holders with respect to a proposed offering under this Agreement, at
the expense of the Company.
"Shelf Registration Statement" shall have the meaning assigned to such
term in subsection 2.1.
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"Termination Date" shall mean the later of the respective dates on
which the Company has no further obligation under the terms of this Agreement to
file or keep effective the Registration Statement or the Shelf Registration
Statement.
(b) The words "hereof, "herein' and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. Unless otherwise
specified, references to sections, subsections, schedules and exhibits are
references to such in this Agreement.
SECTION 2. SHELF REGISTRATION.
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2.1 Shelf Registration. The Company agrees that, as promptly as practical
after the date hereof, and in any event no later than 90 days after the date
hereof, the Company shall use its reasonable best efforts to prepare and file
with the Commission a "shelf" Registration Statement on Form S-1 or Form S-3 for
an offering to be made on a continuous basis pursuant to Rule 415 (or any
successor rule) (the "Shelf Registration Statement") covering all of the
Registrable Common outstanding on the date of such filing. The Company will use
its reasonable best efforts to have such Shelf Registration Statement declared
effective by the Commission on or as soon as practicable after the date hereof.
The Company shall use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective until the earlier of (A) the date the
Securities Holders can sell all their shares of the Registrable Common without
any restrictions under Rule 144 and (B) the date on which no Registrable Common
remains outstanding. The Company shall furnish to Securities Holders' Counsel,
before filing, copies of the Shelf Registration Statement, Prospectus and any
amendments or supplements thereto proposed to be filed by the Company with the
Commission.
2.2 Amendments to Registration Statement and Prospectus. The Company will use
its reasonable best efforts to keep the Securities Holders informed of the
occurrence of any of the events set forth in Section 5.3(c)(ii), 5.3(c)(iii) or
5.3(c)(v). Upon the occurrence of any such events, the Securities Holders shall
cease all offers and sales of Registrable Common pursuant to the Shelf
Registration Statement until such time as, in the case of the events set forth
in Section 5.3(c)(ii), 5.3(c)(iii) or 5.3(c)(v), the Registration Statement or
Prospectus is amended or supplemented or the Company has made such other
required filing in accordance with the next succeeding sentence and, in the case
of the event set forth in Section 5.3(c)(iii), such stop order has been
withdrawn. The Company shall, subject to permitted "black-out" periods, upon the
happening of any event of the nature described in subsection 5.3(c)(ii),
5.3(c)(iii) or 5.3(c)(v), as expeditiously as reasonably possible, prepare a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required documents and deliver copies thereof to
each Securities Holder so that, as thereafter delivered to the purchasers of the
Registrable Common being sold thereunder, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or make the statements therein, in light of the circumstances
under which they were made, not misleading.
2.3 Stop Orders. In the event of the issuance of any stop order suspending
the effectiveness of such Registration Statement or of any order suspending or
preventing the use of any related Prospectus, the Company will use its
reasonable best efforts to obtain its withdrawal at the earliest possible time.
2.4 Listing of Registrable Common. The Company will use its reasonable best
efforts to cause the Registrable Common covered by the Shelf Registration
Statement to, upon the sale of such Registrable Common pursuant to such Shelf
Registration Statement, be listed on each national securities exchange in the
United States on which the Common Stock is then listed or quoted on each
inter-dealer quotation system on which the Common Stock is then quoted.
2.5 Transfer Agent and Registrar. The Company will ensure that there are at
all times a transfer agent and registrar (which may be the same entity) for the
Registrable Common covered by the Shelf Registration Statement from and after
the effective date of such Shelf Registration Statement.
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2.6 Facilitate Issuances Pursuant to Shelf Registration Statement. The
Company will cooperate with the selling Securities Holders of Registrable Common
to facilitate the timely issuance and delivery to any purchaser which any
Securities Holder may sell Registrable Common pursuant to the Shelf Registration
Statement, certificates evidencing shares of the Registrable Common not bearing
any restrictive legends and in such denominations and registered in such names
as such selling Securities Holder may request.
2.7 Other Obligations of the Company. (a) The Company shall provide, upon
request, to any Securities Holder and to any attorney, accountant or other agent
retained by such Securities Holder, reasonable access to appropriate officers
and directors of the Company, its independent auditors and counsel to ask
questions and to obtain information (including any financial and other records
and pertinent corporate documents) reasonably requested by any such Securities
Holder, attorney, accountant or other agent in connection with the Shelf
Registration Statement or any amendment thereto; provided, however, that (i) in
connection with any such access or request, any such requesting Persons shall
cooperate to the extent reasonably practicable to minimize any disruption to the
operation by the Company of its business and (ii) any records, information or
documents shall be kept confidential by such requesting Persons, unless (A) such
records, information or documents are in the public domain or otherwise publicly
available or (B) disclosure of such records, information or documents is
required by court or administrative order or by applicable law (including,
without limitation, the Securities Act).
(b) The Company shall furnish at the Company's expense to the
Securities Holders and to any attorney, accountant or other agent retained by
such Securities Holders such number of copies of any Registration Statement and
Prospectus, including any Preliminary Prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the shares of
Registrable Common owned by them.
(c) The Company shall use its reasonable best efforts to register and
qualify the securities covered by such Shelf Registration Statement (to the
extent exemptions are not available) under the securities or "Blue Sky" laws of
such other jurisdictions as shall be reasonably requested by the Securities
Holders and to keep each such registration or qualification effective during the
period required for the sale of Registrable Common to be consummated; provided,
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdiction in which it has not already done so.
SECTION 3. COMPANY SALE EVENTS.
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3.1 Determination. The Company may at any time effect a Company Public Sale
Event pursuant to a Registration Statement filed by the Company if the Company
gives each Securities Holder a Company Sale Notice, provided that such Company
Sale Notice is given not less than 21 days prior to the initial filing of the
related Registration Statement. The obligation of the Company to give to each
Securities Holder a Company Sale Notice and to permit piggyback registration
rights to such Securities Holders with respect to Registrable Common in
connection with Company Sale Events in accordance with this Section 3 shall
terminate on the earlier of (A) the date the Securities Holders can sell all
their shares of the Registrable Common without any restrictions under Rule 144
and (B) the date on which no Registrable Common remains outstanding.
3.2 Notice. The Company Sale Notice shall offer the Securities Holders the
opportunity to participate in such offering subject to Section 3.3(b) below.
3.3 Piggyback Rights of Securities Holders. (a) If the Company shall have
delivered a Company Sale Notice, Securities Holders shall be entitled to
participate on the same terms and conditions as the Company and/or such third
parties in the Company Public Sale Event to which such Company Sale Notice
relates and to offer and sell shares of Registrable Common therein only to the
extent provided in this subsection 3.3. Each Securities Holder desiring to
participate in such offering shall notify the Company no later than ten (10)
days
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following receipt of a Company Sale Notice of the aggregate number of shares of
Registrable Common that such Securities Holder then desires to sell in the
offering.
(b) Each Securities Holder desiring to participate in a Company Public
Sale Event may include shares of Registrable Common in any Registration
Statement relating to a Company Public Sale Event to the extent that the
inclusion of such shares shall not reduce the number of shares of
Common Stock to be offered and sold by the Company and/or such third parties to
be included therein. If the lead managing underwriter selected by the Company
for a Company Public Sale Event advises the Company in writing (with a copy to
each Securities Holder) that, in its opinion, the total number of shares of
Common Stock to be sold by the Company and/or such third parties together with
the shares of Registrable Common which such holders intend to include in such
offering would reasonably be expected to materially adversely affect the price
or distribution of the Common Stock offered in such Company Public Sale Event or
the timing thereof, then there shall be included in the offering only that
number of shares of Registrable Common, if any, that such lead managing
underwriter reasonably and in good faith believes will not materially adversely
affect the price or distribution of the Common Stock to be sold in such Company
Public Sale Event; provided that if the lead managing underwriter determines
that such factors require a limitation on the number of shares of Registrable
Common to be offered and sold as aforesaid and so notifies the Company in
writing, the number of shares of Registrable Common to be offered and sold by
Securities Holders desiring to participate in the Company Public Sale Event,
shall be allocated among those Securities Holders desiring to participate in
such Company Public Sale Event on a pro rata basis based on their holdings of
Registrable Common. If any Securities Holder does not request inclusion of the
maximum number of shares of Registrable Common allocated to it pursuant to the
above-described procedure, the remaining portion of its allocation shall be
reallocated among those requesting Securities Holders whose allocation did not
satisfy their requests pro rata on the basis of the number of shares of
Registrable Common held by such Securities Holders, and this procedure shall be
repeated until all of the shares of Registrable Common which may be included in
the underwriting have been so allocated.
3.4 Discretion of the Company. In connection with any Company Public Sale
Event, subject to the provisions of this Agreement, the Company, in its sole
discretion, shall determine whether (a) to proceed with, withdraw from or
terminate such Company Public Sale Event, (b) to enter into a purchase agreement
or underwriting agreement for such Company Public Sale Event, and (c) to take
such actions as may be necessary to close the sale of Common Stock contemplated
by such offering, including, without limitation, waiving any conditions to
closing such sale which have not been fulfilled.
SECTION 4. BLACK-OUT PERIODS.
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4.1 Black-Out Periods for Securities Holders. (a) No Securities Holder shall
offer to sell or sell any shares of Registrable Common pursuant to the Shelf
Registration Statement during the 60-day period immediately following the
effective date of any Registration Statement filed by the Company in respect of
a Company Public Sale Event.
(b) No Securities Holder shall offer to sell or sell any shares of
Registrable Common pursuant to the Shelf Registration Statement, and
the Company shall not be required to supplement or amend the Shelf Registration
Statement or otherwise facilitate the sale of Registrable Common pursuant
thereto, during the 90-day period (or such lesser number of days until the
Company makes its next required filing under the Exchange Act) immediately
following the receipt by each Securities Holder of a certificate of an
authorized officer of the Company to the effect that the Board of Directors of
the Company has determined in good faith that such offer, sale, supplement or
amendment is likely to (1) interfere with or affect the negotiation or
completion of any transaction that is being contemplated by the Company (whether
or not a final decision has been made to undertake such transaction) at the time
the right to delay is exercised, or (2) involve initial or continuing disclosure
obligations that might not be in the best interest of the Company or its
stockholders. Any period described in subsection 4.l(a) or 4.l(b) during which
Securities Holders are not able to sell shares of Registrable Common pursuant to
the Shelf Registration Statement is herein referred to as a "black-out" period.
The Company shall notify each Securities Holder of the expiration or earlier
termination
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of any "black-out" period (the nature and pendency of which need not be
disclosed during such "black-out" period).
(c) The provisions of Section 4.1(a) and 4.1(b) notwithstanding,
(i) no black-out period shall commence on a date which is less
than 20 days later than the date of the termination of the then most recent
black-out period, and (ii) there shall be no more than two black-out periods
during any consecutive 12 month period.
(d) The period during which the Company is required pursuant
to subsection 2.l to keep the Shelf Registration Statement continuously
effective shall be extended by a number of days equal to the number of days, if
any, of any "black-out" period applicable to Securities Holders pursuant to this
subsection 4.1 occurring during such period, plus a number of days equal to the
number of days during such period, if any, of any period during which the
Securities Holders are unable to sell any shares of Registrable Common pursuant
to the Shelf Registration Statement as a result of the happening of any event of
the nature described in subsections 5.3(c)(ii), 5.3(c)(iii) or 5.3(c)(v).
SECTION 5. AGREEMENTS CONCERNING OFFERINGS.
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5.1 Obligations of Securities Holders. (a) Each Securities Holder shall, upon
the reasonable request of the Company, advise the Company of the number of
shares of Registrable Common then held or beneficially owned by it.
(b) It shall be a condition precedent to the obligations of the Company
to effect a Registration of any shares of Registrable Common for any
Securities Holder that such Securities Holder shall have furnished to the
Company a complete Securities Holder's Questionnaire requesting such information
regarding such Securities Holder or the Registrable Common held by such
Securities Holder and the intended method of disposition of such securities as
shall be required by law, the Commission or the NASD, and any other information
relating to such Registration reasonably required by the Company.
5.2 Obligations of the Company. Whenever required under this Agreement to
proceed with a Registration of any Registrable Common pursuant to Section 3
hereof, the Company shall, subject to the terms and conditions of this
Agreement, use its reasonable best efforts to proceed as expeditiously as
reasonably possible to:
(a) Prepare and file with the Commission a Registration Statement
with respect to such Registrable Common and use its reasonable 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, the Company will furnish to the Securities
Holders covered by such Registration Statement and to Securities Holders'
Counsel copies of any such Registration Statement or Prospectus proposed to be
filed.
(b) Prepare and file with the Commission such amendments (including
post-effective amendments) to such Registration Statement and
supplements to the related Prospectus used in connection with such Registration
Statement, and otherwise use its reasonable best efforts, to the end that such
Registration Statement reflects the plan of distribution of the securities
registered thereunder that is included in the relevant Company Sale Notice and
is effective until the completion of the distribution contemplated by such
Registration Statement or so long thereafter as a broker or dealer is required
by law to deliver a Prospectus in connection with the offer and sale of the
shares of Registrable Common covered by such Registration Statement and/or as
shall be necessary so that neither such Registration Statement nor the related
Prospectus shall contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and so that such Registration Statement and
the related Prospectus will otherwise comply with all applicable legal and
regulatory
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requirements. The Company shall not be deemed to have effected a Registration
for any purpose under this Agreement unless and until such Registration
Statement is declared effective by the Commission.
(c) Provide to any Securities Holder requesting to include Registrable
Common in such Registration Statement and any managing underwriter(s)
participating in any distribution thereof and to any attorney,
accountant or other agent retained by such Securities Holder or managing
underwriter(s), reasonable access to appropriate officers and directors of the
Company, its independent auditors and counsel to ask questions and to obtain
information (including any financial and other records and pertinent corporate
documents) reasonably requested by any such Securities Holder, managing
underwriter(s), attorney, accountant or other agent in connection with such
Registration Statement or any amendment thereto; provided, however, that (i) in
connection with any such access or request, any such requesting Persons shall
cooperate to the extent reasonably practicable to minimize any disruption to the
operation by the Company of its business and (ii) any records, information or
documents shall be kept confidential by such requesting Persons, unless (A) such
records, information or documents are in the public domain or otherwise publicly
available or (B) disclosure of such records, information or documents is
required by court or administrative order or by applicable law (including,
without limitation, the Securities Act).
(d) Furnish at the Company's expense to the participating
Securities Holders and any managing underwriter(s) and to any attorney,
accountant or other agent retained by such Securities Holders or managing
underwriter(s), such number of copies of any Registration Statement and
Prospectus, including any Preliminary Prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of the shares of
Registrable Common owned by them.
(e) Prior to any Company Public Sale Event, use its reasonable best
efforts to register and qualify the securities covered by such Registration
Statement (to the extent exemptions are not available) under securities or "Blue
Sky" laws of such other jurisdictions as shall be reasonably requested by the
Securities Holders or the managing underwriter(s) and to keep each such
registration or qualification effective during the period required for such
Company Public Sale Event to be consummated; provided that the Company shall not
be required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such states
or jurisdictions in which it has not already done so.
(f) In connection with a Company Public Sale Event, enter into and
perform its obligations under a Purchase Agreement, if the offering is an
underwritten offering, in usual and customary form, with the managing
underwriters of such underwritten offering; provided, however, that each
Securities Holder participating in such Company Public Sale Event shall also
enter into and perform its obligations under such Purchase Agreement so long as
such obligations are usual and customary obligations of selling stockholders in
a registered public offering.
(g) Use its reasonable best efforts to cause the Registrable Common
covered by the Registration Statement to be listed on each national
securities exchange in the United States on which the Common Stock is then
listed or quoted on each inter-dealer quotation system on which the Common Stock
is then quoted.
(h) Ensure that there are at all times a transfer agent and registrar
(which may be the same entity) for the Registrable Common covered by
the Registration Statement from and after the effective date of such
Registration Statement.
(i) Cooperate with the selling Securities Holders of Registrable
Common and any managing underwriters to facilitate the timely issuance and
delivery to any underwriters to which any Securities Holder may
sell Registrable Common in such offering, certificates evidencing shares of the
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Registrable Common not bearing any restrictive legends and in such denominations
and registered in such names as the managing underwriters may request.
(j) Facilitate the distribution and sale of any shares of Registrable
Common to be offered pursuant to this Agreement, including, without
limitation, by making road show presentations, holding meetings with potential
investors and taking such other reasonable actions as shall be requested by the
Securities Holders holding a majority of the shares of Registrable Common
covered by a Registration Statement or the lead managing underwriter of an
underwritten offering; provided that the Company receives reasonable notice of
such requested actions by any of the Securities Holders and the lead managing
underwriter.
5.3 Agreements Related to Offerings. Subject to the terms and conditions
hereof, in connection with the Registration Statement covering any Company
Public Sale Event, as applicable:
(a) The Company and each Securities Holder will cooperate with
the underwriters for any offering of Registrable Common proposed to be sold
pursuant to a Registration Statement, and will, unless the parties to the
Purchase Agreement otherwise agree, use its reasonable best efforts to enter
into a Purchase Agreement not inconsistent with the terms and conditions of this
Agreement and containing such other terms and conditions of a type and form
reasonable and customary for companies of similar size and credit rating
(including, but not limited to, such provisions for indemnification and
contribution and for the delivery of a "comfort letter" and legal opinion as are
customary), and use its reasonable best efforts to take all such other
reasonable actions as are necessary or advisable to permit, expedite and
facilitate the disposition of such shares of Registrable Common in the manner
contemplated by such Registration Statement in each case to the same extent as
if all the shares of Registrable Common then being offered were for the account
of the Company.
(b) Neither such Registration Statement nor any amendment or supplement
thereto will be filed by the Company until Securities Holders'
Counsel shall have had a reasonable opportunity to review the same and to
exercise its rights under subsection 5.2(c) with respect thereto. No amendment
to such Registration Statement naming any Securities Holder as a selling
security holder shall be filed with the Commission until such Securities Holder
shall have had a reasonable opportunity to review such Registration Statement as
originally filed. Neither such Registration Statement nor any related Prospectus
or any amendment or supplement thereto shall be filed by the Company with the
Commission which shall be disapproved (for reasonable cause) by the managing
underwriters named therein or Securities Holders' Counsel within a reasonable
period after notice thereof.
(c) The Company will use its reasonable efforts to keep the Securities
Holders informed of the Company's best estimate of the earliest date
on which such Registration Statement or any post-effective amendment thereto
will become effective and will notify each Securities Holder, Securities
Holders' Counsel and the managing underwriter(s), if any, participating in the
distribution pursuant to such Registration Statement promptly (i) when such
Registration Statement or any post-effective amendment to such Registration
Statement is filed or becomes effective, (ii) of any request by the Commission
for an amendment or any supplement to such Registration Statement or any related
Prospectus, or any other information request by any other governmental agency
directly relating to the offering, and promptly deliver to each Securities
Holder participating in the offering and the managing underwriter(s), if any,
copies of all correspondence between the Commission or any such governmental
agency or self-regulatory body and all written memoranda relating to discussions
with the Commission or its staff with respect to the Registration Statement or
proposed sale of shares, to the extent not covered by attorney-client privilege
or constituting attorney work product, (iii) of the issuance by the Commission
of any stop order suspending the effectiveness of such Registration Statement or
of any order preventing or suspending the use of any related Prospectus or the
initiation or threat of any proceeding for that purpose, (iv) of the suspension
of the qualification of any shares of Common Stock included in such Registration
Statement for sale in any jurisdiction or the initiation or threat of a
proceeding for that purpose, (v) of any determination by the Company that an
event has occurred (the nature and pendency of which need not be disclosed
during a 'black-out period' pursuant to subsection 4.1(b)) which makes untrue
9
any statement of a material fact made in such Registration Statement or any
related Prospectus or which requires the making of a change in such Registration
Statement or any related Prospectus in order that the same will not contain any
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, in light of the
circumstances under which they were made, not misleading, (vi) of the completion
of the distribution contemplated by such Registration Statement, and (vii) if at
any time the representations and warranties of the Company under Section 6 cease
to be true and correct in all material respects.
(d) In the event of the issuance of any stop order suspending
the effectiveness of such Registration Statement or of any order suspending or
preventing the use of any related Prospectus or suspending the qualification of
any shares of Common Stock included in such Registration Statement for sale in
any jurisdiction, the Company will use its reasonable best efforts to obtain its
withdrawal at the earliest possible time.
(e) The Company agrees to otherwise use its reasonable best efforts
to comply with all applicable rules and regulations of the Commission,
and make available to the Securities Holders, as soon as reasonably practicable,
but not later than fifteen months after the effective date of such Registration
Statement, an earnings statement covering the period of at least twelve months
beginning with the first full fiscal quarter after the effective date of such
Registration Statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act.
(f) The Company shall, subject to permitted "black-out" periods, upon
the happening of any event of the nature described in subsection
5.3(c)(ii), 5.3(c)(iii) or 5.3(c)(v), as expeditiously as reasonably possible,
prepare a supplement or post-effective amendment to the applicable Registration
Statement or a supplement to the related Prospectus or any document incorporated
therein by reference or file any other required documents and deliver a copy
thereof to each Securities Holder so that, as thereafter delivered to the
purchasers of the Registrable Common being sold thereunder, such Prospectus will
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or make the statements therein, in light of
the circumstances under which they were made, not misleading.
5.4 Certain Expenses. The Company shall pay all fees, disbursements and
expenses in connection with any Shelf Registration Statement and Registration
Statement and the performance of its obligations hereunder, including, without
limitation, to the extent applicable, all registration and filing fees,
printing, messenger and delivery expenses, fees of the Company's auditors,
listing fees, registrar and transfer agents' fees, reasonable fees and
disbursements of Securities Holders' Counsel in connection with the registration
but not the disposition of the Registrable Common (provided that the Company
shall have no obligation to reimburse the fees and disbursements of any
other counsel to any Securities Holder), fees and disbursements for counsel
for the Company, fees and expenses (including reasonable fees and disbursements
of counsel) of complying with applicable state securities or "Blue Sky"
laws and the fees of the NASD in connection with its review of any offering
contemplated in any such registration statement, but not including
underwriting discounts and commissions or brokerage commissions on any shares
of Registrable Common sold in any such offering.
5.5 Reports Under the Exchange Act. (a) From the date hereof to the
Termination Date, the Company agrees to:
(i) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act or the Exchange
Act; and
(ii) furnish to any Securities Holder, forthwith upon request
(A) a written statement by the Company that it has complied with the current
public information and reporting requirements of Rule 144 and the Exchange Act,
(B) a copy of the most recent annual or quarterly report of the Company and such
other reports and documents so filed by the Company, and (C) such other
information as may be reasonably requested in connection with any Securities
Holder availing itself of any rule or regulation of the
10
Commission which permits the selling of any such securities without Registration
or pursuant to such rule or regulation.
(b) if any Securities Holder is required to file a Form 144 with
respect to any sale of shares of Registrable Common, such Securities Holder
shall promptly deliver to the Company a copy of such completed Form 144 filed
with the Commission.
5.6 Limitations on Subsequent Registration Rights. From the date hereof to the
Termination Date, the Company shall not, without the prior written consent of
Securities Holders owning a majority of the shares of Registrable Common held by
Securities Holders at such time, enter into any agreement (other than this
Agreement) which would provide any holder or prospective holder of Common Stock
piggyback registration rights for such Common Stock unless the piggyback
registration rights provided to the Securities Holders hereunder shall have
priority in the event of any cutback.
5.7 Indemnification and Contribution. (a) In connection with (x) the Shelf
Registration Statement, subsections 5.7(a)(i), (ii) and (v), 5.7(c) and 5.5(e)
hereof shall be in full force and effect upon the effective date of the Shelf
Registration Statement, and (y) a Registration Statement which covers
Registrable Common being sold by Piggybacking Securities Holders, provisions
substantially in conformity with the following provisions shall be contained in
the related Purchase Agreement unless the parties to such Purchase Agreement
agree otherwise (references in such provisions to a Securities Holder or an
underwriter being references to a Securities Holder or an underwriter
participating in the offering covered by such Registration Statement):
(i) The Company agrees to indemnify and hold harmless each
Securities Holder and each Person, if any, who controls such Securities Holder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and each of their respective officers, directors and employees
against any losses, claims, damages or liabilities, joint or several, or actions
in respect thereof to which such Securities Holder or Persons may become
subject under the Securities Act, or otherwise (collectively, "Losses"),
insofar as such Losses arise out of, or are based upon, any untrue
statement or alleged untrue statement of any material fact contained in such
Registration Statement, any related Preliminary Prospectus or any
related Prospectus, or any amendment or supplement thereto, 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, and will reimburse such Securities Holder or
Persons for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such Losses; provided, however,
that the Company shall not be so liable to the extent that any such Losses arise
out of, or are based upon, an untrue statement or alleged untrue statement of a
material fact or an omission or alleged omission to state a material fact in
said Registration Statement in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of such Securities Holder
specifically for use therein. Notwithstanding the foregoing, the Company shall
not be liable in any such instance to the extent that any such Losses arise out
of, or are based upon, an untrue statement or alleged untrue statement or
omission or alleged omission made in any Preliminary Prospectus if (i) after the
Company had made available a sufficient number of copies of the Prospectus, such
Securities Holder failed to send or deliver a copy of the Prospectus with or
prior to the delivery of written confirmation of the sale of Registrable Common
to the Person asserting such Losses or who purchased the Registrable Common the
purchase of which is the basis of the action if, in either instance, such
delivery by such Securities Holder is required by the Securities Act and (ii)
the Prospectus would have corrected such untrue statement or alleged untrue
statement or alleged omission; and the Company shall not be liable in any such
instance to the extent that any such Losses arise out of, or are based upon, an
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in the Prospectus, if such untrue
statement or alleged untrue statement, omission or alleged omission is corrected
in an amendment or supplement to the Prospectus and if, having previously been
furnished by or on behalf of the Company with copies of the Prospectus as so
amended or supplemented, such Securities Holder thereafter fails to deliver such
Prospectus as so amended or supplemented, prior to or concurrently with the sale
of Registrable Common if such delivery by such Securities Holder is required by
the Securities Act. This indemnity agreement will be in addition to any
liability which the Company may
11
otherwise have and shall remain in full force and effect regardless of any
investigation made by or on behalf of such holder or any such Person and shall
survive the Termination Date and the transfer of Registrable Common by such
holder as otherwise permitted hereby.
(ii) Each Securities Holder severally and not jointly agrees
to indemnify and hold harmless the Company, each other Securities Holder
and each Person, if any, who controls the Company or such other Securities
Holder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, and their respective officers, directors and
employees, against any Losses to which the Company, such other Securities
Holder or such Persons may become subject under the Securities Act, or
otherwise, insofar as such Losses arise out of, or are based upon, any
untrue statement or alleged untrue statement of any material fact contained
in such Registration Statement, any related Preliminary Prospectus or
any related Prospectus, or any amendment or supplement thereto, 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, and will reimburse the Company, such other
Securities Holder or such Persons for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such Losses,
in each instance to the extent, but only to the extent, that any such Losses
arise out of, or are based upon, an untrue statement or alleged untrue statement
of a material fact or an omission or alleged omission to state a material fact
in said Registration Statement, said Preliminary Prospectus or said Prospectus,
or any said amendment or supplement thereto in reliance upon, and in conformity
with, written information furnished to the Company by or on behalf of such
Securities Holder specifically for use therein; provided, however, that the
liability of each Securities Holder under this subsection 5.7(a)(ii) shall be
limited to an amount equal to the proceeds of the sale of shares of Registrable
Common by such Securities Holder in the offering which gave rise to the
liability (net of all costs and expenses (including underwriting commissions and
disbursements) paid or incurred by such Securities Holder in connection with the
registration, if any, and sale); provided further that such indemnity with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Securities Holder, the Company or other Person or Persons from whom the Person
asserting any such Losses purchased shares of Common Stock if such Person did
not receive a copy of the Prospectus (or the Prospectus as amended or
supplemented) at or prior to the confirmation of the sale of such shares of
Common Stock to such Person in any case where such delivery is required by the
Securities Act and the untrue statement or alleged untrue statement or omission
or alleged omission of a material fact in such Preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as amended or supplemented).
(iii) The Company will indemnify and hold harmless each
underwriter and each Person, if any, who controls any such underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, and their respective officers, directors and employees, against
any Losses to which such underwriter or Persons may become subject under the
Securities Act, or otherwise, insofar as such Losses arise out of, or are based
upon, any untrue statement or alleged untrue statement of any material fact
contained in such Registration Statement, any related Preliminary Prospectus or
any related Prospectus, or any amendment or supplement thereto, 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, and will reimburse such underwriter or Persons for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such Losses; provided, however, that (i) the Company shall not be
so liable to the extent that any such Losses arise out of, or are based upon,
an untrue statement or alleged untrue statement of a material fact or an
omission or alleged omission to state a material fact in said Registration
Statement, said Preliminary Prospectus or said Prospectus or any said amendment
or supplement in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of such underwriter specifically for
use therein; and (ii) such indemnity with respect to any Preliminary prospectus
shall not inure to the benefit of any underwriter (or any Person controlling
such underwriter) from whom the Person asserting any such Losses purchased
shares of Common Stock if such Person did not receive a copy of the Prospectus
(or the Prospectus as amended or supplemented) at or prior to the confirmation
of the sale of such shares of Common Stock to such Person in any case where such
delivery is required by the Securities Act and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact in such
Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as
amended or
12
supplemented); provided, further, that the Company shall only be required to
provide the indemnification described in this subsection 5.7(a)(iii) to an
underwriter and each Person, if any, who controls such underwriter, and their
respective officers, directors and employees, if such underwriter agrees to
indemnification provisions substantially in the form set forth in subsection
5.7(b).
(iv) Each Securities Holder will severally and not jointly
indemnify and hold harmless each underwriter and each Person, if any, who
controls such underwriter within the meaning of Section 15 of the Securities Act
or section 20 of the Exchange Act, and their respective officers, directors and
employees, against any Losses to which such underwriter or such Persons may
become subject under the Securities Act, or otherwise, insofar as such Losses
arise out of, or are based upon, any untrue statement or alleged untrue
statement of any material fact contained in such Registration Statement, any
related Preliminary Prospectus or any related Prospectus, or any amendment or
supplement thereto, 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, and will reimburse such
underwriter or such Persons for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such Losses, in each
case to the extent, but only to the extent, that any such Losses arise out of,
or are based upon, an untrue statement or alleged untrue statement of a material
fact or an omission or alleged omission to state a material fact in said
Registration Statement in reliance upon, and in conformity with, written
information furnished to the Company by or on behalf of such Securities Holder
specifically for use therein; provided, however, that such Securities Holder
shall only be required to provide the indemnification described in this
subsection 5.7(a)(iv) to an underwriter and each Person, if any, who controls
such underwriter if such underwriter agrees to indemnification provisions
substantially in the form set forth in subsection 5.7(b); and provided, further,
that such Securities Holder shall not be liable in any such case to the extent
that any such Losses arise out of, or are based upon, an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus if (i) such underwriter failed to send or deliver a copy of the
Prospectus with or prior to the delivery of written confirmation of the sale of
Registrable Common to the Person asserting such Loss who purchased the
Registrable Common which is the subject thereof where such delivery is required
by the Securities Act and (ii) the Prospectus would have corrected such untrue
statement or omission or alleged untrue statement or alleged omission; and such
Securities Holder shall not be liable in any such case to the extent that any
such Losses arise out of, or are based upon, an untrue statement or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact in the Prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and if, having previously been furnished by or on
behalf of such Securities Holder with copies of the Prospectus as so amended or
supplemented, such underwriter thereafter fails to deliver such Prospectus as so
amended or supplemented, prior to or concurrently with the sale of Registrable
Common to the Person asserting such Loss who purchased such Registrable Common
which is the subject thereof or where such delivery is required by the
Securities Act, and provided, further, that the liability of such Securities
Holder under this subsection 5.7(a)(iv) shall be limited to an amount equal to
the proceeds of the sale of shares of Common Stock by such Securities Holder in
the offering which gave rise to the liability (net of all costs and expenses
(including underwriting commissions and disbursements) paid or incurred by such
Securities Holder in connection with the registration, if any, and sale).
(v) Promptly after any Person entitled to indemnification
under this subsection 5.7 or such Purchase Agreement receives notice of any
claim or the commencement of any action, the indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party pursuant to the
indemnification provisions of this subsection 5.7 of such Purchase Agreement,
notify the indemnifying party in writing of the claim or the commencement of
such action; provided, however, that the failure or delay to so notify the
indemnifying party shall not relieve it from any liability which it may have to
the indemnified party hereunder unless and to the extent such failure or delay
has materially prejudiced the rights of the indemnifying party and shall not, in
any event, relieve it from any liability which it may have to the indemnified
party other than pursuant to the indemnification provisions of this subsection
5.7 or such Purchase Agreement. If any such claim or action shall be brought
against an indemnified party, and it has notified the indemnifying party thereof
in accordance with the terms hereof, the indemnifying party shall be entitled to
13
participate in the defense of such claim, or, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified party,
upon written notice to the indemnified party of such assumption. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, (i) the indemnifying party shall not be
liable to the indemnified party pursuant to the indemnification provisions
hereof or of such Purchase Agreement for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation, (ii) the indemnifying
party shall not be liable for the costs and expenses of any settlement of such
claim or action unless such settlement was effected with the consent of the
indemnifying party (which consent shall not be unreasonably withheld or delayed)
and (iii) the indemnified party shall be obligated to cooperate with the
indemnifying party in the investigation of such claim or action; provided,
however, that any indemnified party hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim assumed by the
indemnifying party, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (a) the employment of such counsel has
been specifically authorized in writing by the indemnifying party, (b) the
indemnifying party shall have failed to assume the defense of such claim from
the Person entitled to indemnification hereunder and failed to employ counsel
within a reasonable period following such assumption, or (c) in the reasonable
judgment of the indemnified party, based upon advice of its counsel, a material
conflict of interest may exist between such indemnified party and the
indemnifying party with respect to such claims or there may be one or more
material legal defenses available to it which are different from or additional
to those available to the indemnifying party (in which case, if the indemnified
party notifies the indemnifying party in writing that the indemnified party
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 the indemnified party). Notwithstanding the foregoing, the
Securities Holders (together with their respective controlling Persons and
officers, directors and employees) and the underwriters (together with their
respective controlling Persons and officers, directors and employees) shall,
each as a separate group, have the right to employ at the expense of the Company
only one separate counsel for each such group to represent such Securities
Holders and such underwriters (and their respective controlling Persons and
officers, directors and employees) who may be subject to liability arising out
of any one action (or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances) in
respect of which indemnity may be sought by such Securities Holders and
underwriters against the Company pursuant to the indemnification provisions of
this subsection 5.7 or such Purchase Agreement. If such defense is not assumed
by the indemnifying party, the indemnifying party will not be subject to any
liability for any settlement made without its consent (but such consent will not
be unreasonably withheld or delayed). No indemnifying party will consent to
entry of any judgment or enter into any settlement that 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. All fees and expenses to be paid by the indemnifying party hereunder
shall be paid a commercially reasonable time after they are billed to the
indemnified party, subject to receipt of a written undertaking from the
indemnified party to repay such fees and expenses if indemnity is not ultimately
determined to be available to such indemnified party under this subsection 5.7.
(b) As a condition to agreeing in any Purchase Agreement to the
indemnification provisions set forth in subsections 5.7(a)(iii) and
5.7(a)(iv) in favor of an underwriter participating in the offering covered by
the related Registration Statement, its controlling Persons, if any, and their
respective officers, directors and employees, the Company and the Securities
Holders participating in an offering pursuant to such Registration Statement may
require that such underwriter agree in the Purchase Agreement to provisions
substantially in the form set forth in subsection 5.7(a)(v) and to severally
indemnify and hold harmless the Company, each Securities Holder participating in
such offering, each Person, if any, who controls the Company or such Securities
Holder within the meaning of the Securities Act, and their respective officers,
directors and employees against any Loss to which the Company, such Securities
Holder or such Persons may become subject under the Securities Act, or
otherwise, insofar as such Losses arise out of, or are based upon, any untrue
statement or alleged untrue statement of any material fact contained in such
Registration Statement in which such underwriter is named as an underwriter, any
related Preliminary Prospectus or any related
14
Prospectus, or any amendment or supplement thereto, 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, and to reimburse the Company, such Securities Holder or such Persons
for any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Losses in each case to the extent, but only
to the extent, that any such Loss arises out of, or are based upon, an untrue
statement or alleged untrue statement of a material fact in said Registration
Statement, said Preliminary Prospectus or said Prospectus or any said amendment
or supplement in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of such underwriter specifically for
use therein.
(c) In order to provide for just and equitable contribution between
the Company and such Securities Holders in circumstances in which the
indemnification provisions of this subsection 5.7 or the related Purchase
Agreement are for any reason insufficient or inadequate to hold the indemnified
party harmless, the Company and such Securities Holders shall contribute to the
aggregate Losses (including any investigation, legal and other fees and expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suitor proceeding or any claim as asserted, but after deducting any
contribution actually received from Persons other than the Company and such
Securities Holders) to which the Company and one or more of its directors or its
officers who sign such Registration Statement or such Securities Holders or any
controlling Person of any of them, or their respective officers, directors or
employees may become subject, under the Securities Act, under any other statute,
at common law or otherwise, insofar as such Losses or actions in respect thereof
arise out of, or are based upon, any untrue statement or alleged untrue
statement of any material fact contained in such Registration Statement or any
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. Such contributions shall be in such amounts that the
portion of such Losses for which each such Securities Holder shall be
responsible under this subsection 5.7(c) shall be limited to the portion of such
Losses which are directly attributable to an untrue statement of a material fact
or an omission to state a material fact in said Registration Statement in
reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of any such Securities Holder specifically for use
therein, and the Company shall be responsible for the balance of such Losses;
provided, however, that the liability of each such Securities Holder to make
such contribution shall be limited to an amount equal to the proceeds of the
sale of shares of Registrable Common by such Securities Holder in the offering
which gives rise to the liability (net of all cost and expenses (including
underwriting commissions and disbursements) paid or incurred in connection with
the registration, if any, and sale). As among themselves, such Securities
Holders agree to contribute to amounts payable by other such Securities Holders
in such manner as shall, to the extent permitted by law, give effect to the
provisions in subsection 5.7(a)(ii) and those provisions in the Purchase
Agreement comparable to such subsection 5.7(a)(ii). The Company and such
Securities Holders agree that it would not be just and equitable if their
respective obligations to contribute pursuant to this subsection were to be
determined by pro rata allocation (other than as set forth above) of the
aggregate Losses by reference to the proceeds realized by such Securities Holder
in a sale pursuant to said Registration Statement or said Prospectus or by any
other method of allocation which does not take account of the considerations set
forth in this subsection 5.7(c). No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution under this subsection from any Person who was
not guilty of such fraudulent misrepresentation.
(d) The Company and the Securities Holders participating in a Company
Public Sale Event pursuant to a Registration Statement agree that, if the
underwriters participating in a Company Public Sale Event are agreeable, the
Purchase Agreement, if any, relating to such Registration Statement shall
contain provisions to the effect that in order to provide for just and equitable
contribution between such underwriters on the one hand and the Company and such
Securities Holders on the other hand in circumstances in which the
indemnification provisions of such Purchase Agreement are for any reason
insufficient or inadequate to hold the indemnified party harmless, the Company
and such Securities Holders on the one hand and such underwriters on the other
hand will contribute on the basis herein set forth to the aggregate Losses,
(including any investigation, legal and other expenses incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
claims asserted, but after deducting any contribution actually received from
15
Persons other than the Company and such Securities Holders and such
underwriters) to which the Company and one or more of its directors or its
officers who sign such Registration Statement or such Securities Holders or such
underwriters or any controlling Person of any of them, or their respective
officers, directors or employees may become subject, under the Securities Act,
under any other statute, at common law or otherwise insofar as such Losses,
arise out of, or are based upon an untrue statement or alleged untrue statement
of any material fact contained in such Registration Statement, any related
Preliminary Prospectus or any related Prospectus, or any amendment or supplement
thereto, 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. Such contribution shall be in such
proportions as is appropriate to reflect the relative benefits received by the
Company and such Securities Holders on the one hand and such underwriters on the
other hand from the offering of the shares of Common Stock covered by such
offering. The relative benefits received by the Company and such Securities
Holders on the one hand and such underwriters on the other hand shall be deemed
to be in the same proportion as the aggregate total net proceeds from the
offering (before deducting expenses) received by the Company and such Securities
Holders bear to the total underwriting discounts and commissions received by
such underwriters for such offering. Notwithstanding the provisions set forth
above, no underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the shares of Common Stock
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution under the provision set forth above from any Person who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of the Company and the Securities Holders
under the provisions of this subsection 5.7 and provisions in any Purchase
Agreement substantially similar to subsections 5.7(a), 5.7(b) 5.7(c) or 5.7(d)
shall survive the termination of any or all of the other provisions of this
Agreement or such Purchase Agreement.
5.8 Transfer of Rights Under this Agreement; Transfers of Registrable Common.
(a) During the period from the date hereof to the Termination Date, the rights
and obligations of a Securities Holder under this Agreement may be transferred
by a Securities Holder to a transferee of Registrable Common (subject to the
provisos to the definitions of Registrable Common); provided however, that,
within a reasonable period of time (but in no event less than two (2) business
days) prior to such transfer, (i) the transferring Securities Holders shall have
furnished the Company and the other Securities Holders written notice of the
name and address of such transferee and the number of shares of Registrable
Common with respect to which such rights are being transferred and (ii) such
transferee shall furnish the Company and the Securities Holders (other than the
transferring Securities Holders) a copy of a duly executed agreement by which
such transferee (A) assumes all of the obligations and liabilities of its
transferor hereunder, (B) enjoys all of the rights of its transferor hereunder
and (C) agrees itself to be bound hereby.
(b) If the stock certificates of a transferring Securities Holder
bear a restrictive legend pursuant to subsection 5.9, the stock certificates
of its transferee to whom the rights hereunder are being transferred shall,
subject to such subsection 5.9, also bear such a restrictive legend.
(c) Except with respect to transfers pursuant to paragraph (a) above,
and subject to the provisions of paragraph (b) above, a transferee of
Registrable Common shall neither assume any liabilities or obligations nor enjoy
any rights hereunder and shall not be bound by any of the terms hereof.
(d) Each Securities Holder hereby agrees that any transfer of
shares of Registrable Common by such Securities Holder shall be made (i) in
compliance with, or in a transaction exempt from, the registration requirements
set forth in the Securities Act and (ii) in compliance with all other applicable
laws. The Company may request, as a condition to the transfer of any Registrable
Common, that the transferring Securities Holders provide the Company with (A)
evidence that the proposed transferee is an "accredited
16
investor" as deemed in Rule 501 under the Securities Act and appropriate
"private placement" representations pursuant to Section 4(2) of the Securities
Act, and (B) an opinion of securities counsel reasonably satisfactory to it with
regard to compliance with this subsection (d).
5.9 Restrictive Legend. Each certificate evidencing shares of Registrable
Common shall, unless and until such shares are sold or otherwise transferred
pursuant to an effective Registration Statement or the Shelf Registration
Statement under the Securities Act or unless, in the absence of such a
Registration Statement or Shelf Registration Statement, the Company receives
an opinion of counsel reasonably satisfactory to it that the restrictive legend
set forth below may be removed without violation of applicable law (including,
without limitation, the Securities Act), be stamped or otherwise imprinted with
a conspicuous legend in substantially the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE SOLD OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE
REGISTRATION STATEMENT COVERING SUCH SECURITIES OR SUCH SALE OR
TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT AND ANY SIMILAR REQUIREMENTS OF ANY APPLICABLE
STATE SECURITIES LAW."
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
---------------------------------------------
In connection with each Registration Statement, the Company shall, on the
respective date of effectiveness of each such Registration Statement with the
Commission, certify to each Securities Holder in a certificate of a Responsible
Officer of the Company to the effect that the representations and warranties set
forth below are true and correct at and as of such effective date. In connection
with a Company Public Sale Event in which Securities Holders participate, except
as otherwise may be agreed upon by such participating Securities Holders and the
Company, the Company shall represent and warrant in the Purchase Agreement
relating to such Company Public Sale Event to the Securities Holders and any
underwriters participating in such Sale Event as follows (except as otherwise
indicated, each reference in this Section to the "Registration Statement" shall
refer to the Shelf Registration Statement, or a Registration Statement in
respect of any Company Public Sale Event in which Securities Holders
participate, as the case may be, including all information deemed to be a part
thereof, as amended, and each reference to "the Prospectus" shall refer to the
related Prospectus):
(a) At the time of filing, the Registration Statement (i) is on a form
for which the Company then qualifies, which form is available for the sale of
the shares of Registrable Common in accordance with the intended method
or methods of distribution thereof and which form covers the registration of at
least such number of shares of Registrable Common as shall have been requested
to be included therein (subject to any cutbacks determined by an underwriter
pursuant to the terms of this Agreement), (ii) complies in all material respects
with the applicable form and with the applicable requirements of the Securities
Act and includes all financial statements and other information required by the
Commission to be filed therewith, and (iii) does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein in light of
the circumstances under which they were made not misleading; provided, however,
that the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement in reliance upon and in
conformity with the information furnished in writing to the Company by or on
behalf of any Securities Holder specifically for use in connection with the
preparation thereof or any information furnished in writing to the Company by or
on behalf of any underwriter specifically for use in connection with the
preparation thereof, other than that the Company has no knowledge of any such
untrue statement or omission in respect of such information.
17
(b) (i) When the Registration Statement became (in the case of a
Registration Statement filed pursuant to Rule 415) or shall become effective,
the Registration Statement did or will comply in all material respects with the
applicable requirements of the Securities Act, (ii) when the Prospectus is filed
in accordance with Rule 424(b), the Prospectus (and any supplements thereto)
will comply in all material respects with the applicable requirements of the
Securities Act, (iii) the Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, and (iv) the Prospectus, if not filed pursuant to Rule 424(b), did
not or will not, and on the date of any filing pursuant to Rule 424(b), the
Prospectus (together with any supplement thereto) will not, include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or omitted from
the Registration Statement, or the Prospectus (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing to the
Company by or on behalf of any Securities Holder specifically for use in
connection with the preparation of the Registration Statement or the Prospectus
(or any supplement thereto) or any information furnished in writing to the
Company by or on behalf of any underwriter specifically for use in connection
with the preparation of the Registration Statement or the Prospectus (or any
supplement thereto), other than that the Company has no knowledge of any such
untrue statement or omission in respect of such information.
(c) (i) The public accountants who certified the Company's financial
statements in the Registration Statement are independent certified
public accountants within the meaning of the Securities Act; (ii) the historical
consolidated financial statements, together with the related schedules and
notes, forming part of the Registration Statement and the Prospectus comply in
all material respects with the requirements of the Securities Act and have been
prepared, and present fairly the consolidated financial condition, results of
operations and changes in financial condition of the Company and its
consolidated subsidiaries at the respective dates and for the respective periods
indicated, in accordance with generally accepted accounting principles applied
consistently throughout such periods (except as specified therein); and (iii)
the historical consolidated financial data set forth in the Prospectus is
derived from the accounting records of the Company and its consolidated
subsidiaries, and is a fair presentation of the data purported to be shown; and
the pro forma consolidated financial statements (if any), together with the
related notes, forming part of the Registration Statement and the Prospectus,
comply in all material respects with the requirements of Regulation S-X under
the Securities Act.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF THE SECURITIES HOLDERS.
--------------------------------------------------------
Each participating Securities Holder shall, in connection with a Company
Public Sale Event, if required by the terms of a Purchase Agreement, if
any, relating to such Company Public Sale Event, for itself severally and not
jointly represent and warrant to the underwriter or underwriters and each other
Securities Holder participating in such Company Public Sale Event as follows:
(a) Such Securities Holder has all requisite power and authority to
enter into and carry out the terms of this Agreement and such Purchase
Agreement and the other agreements and instruments related to such
agreements to which it is a party.
(b) Each of this Agreement and such Purchase Agreement has been duly
authorized, executed and delivered by or on behalf of such Securities
Holder and constitutes the legal, valid and binding obligation of such
Securities Holder, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles.
(c) Such Securities Holder, immediately prior to any sale of shares
of Registrable Common pursuant to such Purchase Agreement, will have good
title to such shares of Registrable Common, free and clear of all liens,
encumbrances, equities or claims (other than those created by this Agreement);
and,
18
upon payment therefor, good and valid title to such shares of Registrable Common
will pass to the purchaser thereof, free and clear of any lien, charge or
encumbrance created or caused by such Securities Holder.
(d) Such Securities Holder has not taken and will not take, directly
or indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result in, under the Exchange Act or
other applicable law, stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of shares of Registrable Common.
(e) Written information furnished by or on behalf of such Securities
Holder to the Company expressly for use in the Registration Statement
or related Prospectus or amendment thereof or supplement thereto will not
contain as of the effective date of such Registration Statement or as of the
date of any Prospectus or as of the date of any amendment thereof or supplement
thereto any untrue statement of a material fact or omit to state any material
fact required be stated or necessary to make the statements in such information
not misleading.
SECTION 8. DELIVERY OF COMFORT LETTERS AND LEGAL OPINIONS.
----------------------------------------------
(a) On the date that a Registration Statement relating to a
Company Public Sale Event in which the Securities Holders participate is
declared effective by the Commission, the Company shall comply with the
following:
(i) The Company shall have received, and delivered to the
Securities Holders, a copy of a "comfort letter" or letters, or updates thereof
according to customary practice, of the independent certified public accountants
who have certified the Company's financial statements included in the
Registration Statement covering substantially the same matters with respect
to the Registration Statement (including the Prospectus) and with respect to
events subsequent to the date of the Company's financial statements as are
reasonably customarily covered in accountants' letters delivered to underwriters
in underwritten offerings of securities. The Company will use its reasonable
best efforts to cause such "comfort letters" to be addressed to such Securities
Holders.
(ii) The Securities Holders participating in such offering shall
have received an opinion and any updates thereof of outside counsel to the
Company reasonably satisfactory to such Securities Holders and any underwriters
or purchasers covering substantially the same matters as are customarily covered
in opinions of issuer's counsel delivered to underwriters in underwritten
offerings of securities, addressed to each of such Securities Holders and any
underwriters or purchasers participating in such offering and dated the closing
date thereof.
SECTION 9. MISCELLANEOUS.
-------------
9.1 Notices. Any notice, demand, claim, request, waiver or consent or other
communication required or permitted to be given under the provisions of this
Agreement shall be in writing and shall be deemed to have been duly delivered if
delivered by any of the following means of delivery, and shall be deemed to have
been duly delivered and received on the date (or the next business day if
delivery is not made on a business day) of personal delivery or facsimile
transmission or on the date (or the next business day if delivery is not made on
a business day) of receipt, if mailed by registered or certified mail, postage
prepaid and return receipt requested, or on the date (or the next business day
if delivery is not made on a business day) of a stamped receipt, if sent by an
overnight delivery service, and sent to the following addresses (or to such
other address as any party may request by notifying the other parties listed
below in accordance with this Section):
19
(a) If to the Company:
SWWT, Inc.
x/x Xxxx Xxxxx Xxxxxxxx XX, X.X.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
XxXxxxxxx Will & Xxxxx
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Telecopy: (000) 000-0000
(b) If to the Securities Holders:
At the address of each such Securities Holder as set
forth on the books and records of the Company (or
such other address as such Securities Holder may
otherwise notify the Company in writing).
9.2 Amendments and Waivers. This Agreement may not be amended or modified or
any provision hereof waived without (i) a resolution of the board of directors
of the Company, (ii) the written consent of East River Ventures, LP, and (iii)
the written consent of Xxxxxx Xxxxx; provided, however, that any amendment,
modification or waiver of this Agreement that disproportionately and adversely
affects any party hereto shall require the prior written consent of such party;
provided further, that it is understood and agreed that the grant of
registration rights to third parties on substantially the terms provided for in
this Agreement shall not be deemed to disproportionately or adversely affect any
party hereto. Subject to the foregoing, any amendments or waivers of this
Agreement effected in accordance herewith shall be binding on all of the parties
hereto, including those not signing such amendment or waiver.
9.3 Termination. This Agreement and the respective obligations and agreements
of the parties hereto, except as otherwise expressly provided herein, shall
terminate on the Termination Date.
9.4 Survival of Representations and Warranties. Except as they may by their
terms relate to an earlier date, all representations and warranties made
hereunder and in any document, certificate or statement delivered pursuant
hereto or in connection herewith execution and delivery of this Agreement and
the termination of any or all of the provisions of this Agreement.
9.5 Headings. The descriptive headings of the several sections and subsections
of this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
9.6 Counterparts. This Agreement may be executed in two or more counterparts,
each of which when executed and delivered shall be deemed an original, and all
of which when taken together shall be considered one and the same instrument,
and this Agreement shall become effective when such counterparts have been
signed by each of the parties hereto and delivered to the other parties. The
parties hereto agree that signatures of the parties and their duly authorized
officers may be exchanged by facsimile transmission, and that such signatures
shall be binding to the same extent, and have the same force and effect, as the
exchange of original written signatures.
20
9.7 Governing Law. This agreement shall be governed by, and construed in
accordance with, the laws of the state of Delaware without regard to choice of
law provisions.
9.8 Adjustment of Shares. Each reference to a number of shares of Common Stock
in this Agreement shall be adjusted proportionately to reflect any stock
dividend, subdivision, split or reverse split or the like affected with respect
to all outstanding shares of Common Stock.
9.9 No Inconsistent Agreements. The Company will not on or after the date of
this Agreement enter into, and is not presently a party to, any agreement with
respect to its securities which is inconsistent with the rights granted to the
Securities Holders in this Agreement or otherwise conflicts with the provisions
hereof. The rights granted to the Securities Holders pursuant to this Agreement
shall be superior to, and take precedence over, any similar rights granted to
any other Person by the Company subsequent to the date hereof.
9.11 Severability. Any provisions of this Agreement prohibited or rendered
unenforceable by any applicable law of any jurisdiction shall as to such
jurisdiction be ineffective to the extent of such prohibition or unenforceable,
without invalidating the remaining provisions hereof, any such prohibition or
unenforceable in any jurisdiction shall not invalidate or render unenforceable
such provision in any other jurisdiction.
9.12 Successors and Assigns. This Agreement shall inure to the benefit of and
be binding upon the successors and permitted assigns to each of the parties
hereunder as otherwise provided herein.
9.13 Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto in respect of the matters referred to herein
and supersedes all prior agreements and understandings among the parties hereto
with respect to the subject matter hereof.
9.14 Termination if Merger is not Consummated. Notwithstanding any provision of
this Agreement, or any rights that the Securities Holders may have hereunder, if
the Closing does not occur for any reason, this Agreement shall be terminated,
shall be deemed null and void ab initio, and the Company shall have no
obligations or liabilities whatsoever to any Person under any of the terms of
this Agreement.
[Signature Page Follows]
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SWWT, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxx
Title: President
XXXXXX XXXXX
/s/ Xxxxxx Xxxxx
----------------
Xxxxxx Xxxxx
XXX XXXXXXXXXXX
/s/ Xxx Xxxxxxxxxxx
-------------------
Xxx Xxxxxxxxxxx
XXXX X. XXXXXXXXX
/s/ Xxxx X. Xxxxxxxxx
---------------------
Xxxx X. Xxxxxxxxx
22
XXXXXX X. XXXXXXXXX XX.
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
----------------------------
Xxxxxx X Xxxxxxxxx, Xx.
XXXXXXX XXXXXXXXXX
/s/ Xxxxxxx Xxxxxxxxxx
----------------------
Xxxxxxx Xxxxxxxxxx
EAST RIVER VENTURES II, L.P.
By: /s/Xxxxxx X. Xxxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager
ERV ASSOCIATES II, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager
CJM Associates, LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
MSD VENTURES, L.P.
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: General Counsel
VBM EQUITIES, LLC
By: /s/ J. Xxxxxxx Xxxxx
--------------------
Name: J. Xxxxxxx Xxxxx
Title: Manager
23
XXXXXXXX INVESTMENTS
LIMITED PARTNERS
By: /s/Xxxx X. Xxxxxxx
------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
MCG-SVT, LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
FUNDUS INC.
By: /s/ Xxx Xxxxxxxxxxx
-------------------
Name: Xxx Xxxxxxxxxxx
Title: President
JNA Holdings Ltd.
By: /s/ Xxxxxx Xxxxxxxxxxxxxx
-------------------------
Name: Xxxxxx Xxxxxxxxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
------------------
Xxxxxxx Xxxxxx
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
-----------------
Xxxxxx Xxxxxx
24
ANNEX A
Name/Address
------------
(a) Xxxxxx Xxxxx
Xxxx Xxxxxx
Xxx Xxxxxxxxxxx
SVT, Inc.
00 Xxxx Xxxxxx
0xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
25
(b) Oscar Capital Management,LLC
Address
000 Xxxxx Xxx.
00xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
(c) Xxxxxx X. Xxxxxxxxx, Xx.
Address
Oscar Capital Management
000 Xxxxx Xxx.
00xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx, Xx.
Telecopy: (000) 000-0000
(d) Xxxxxxx Xxxxxxxxxx
Address
Oscar Capital Management
000 Xxxxx Xxx.
00xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
(e) East River Ventures II, L.P.
Address
East River Ventures
000 Xxxxxxx Xxx.
00xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
(f) ERV Associates II, LLC
Address
East River Ventures
000 Xxxxxxx Xxx.
00xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
26
(g) CJM Associates, LLC
Address
New Economy Group, LLC
Xxx Xxxxxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
(h) MSD Ventures, L.P.
Address
MSD Capital, LP
000 Xxxxx Xxxxxx
00xx. Xxxxx
Xxx Xxxx, XX 00000-0000
(i) VBM Equities, LLC
Address
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
(j) Huizenga Investments Limited Partners
Address
c/o Xxxxx Xxxxxxx
000 X. Xxx Xxxx Xxxx.
Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
(k) MCG-SVT, LLC
Address
New Economy Group, LLC
Xxx Xxxxxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
27
(l) Fundus Inc.
Address
Caledonian House
GeorgeTown
Grand Cayman, Cayman Islands
(m) JNA Holdings Ltd.
Address
17 Gr. Xxxxxxxxxx Xxxxxx
X.X. Xxx 00000
0000 Xxxxxxxx, Xxxxxx
(x) Xxxx X. Xxxxxxxxx
Address
c/o Allen & Co.
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
(o) Xxxxxxx Xxxxxx
Address
28
