EXHIBIT 10.30
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of January 8, 2002, between XXXXX
Online, Inc. (the "Company") between and among each of the Holders (as such term
is defined below) listed on Schedule A hereto.
WHEREAS, the Company has offered for sale up to 2,000,000 shares (the
"Shares") of common stock, par value $0.01 per share (the "Common Stock") and
warrants ("Warrant") to purchase a number of shares of Common Stock ("Warrant
Shares") equal to 20% of the number of Shares purchased, (the "Offering"), as
further described in the Common Stock Purchase Agreement of even date herewith
(the "SPA");
WHEREAS, the Company has agreed to register the Common Stock and the
Warrant Shares offered through the Offering on the terms and conditions provided
herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Automatic Registration Statement.
(a) Within thirty (30) days after January 8, 2002 (the "Final
Closing Date"), the Company shall file with the Securities and Exchange
Commission (the "SEC") a Registration Statement on Form S-3 or such other
appropriate form in accordance with the Securities Act of 1933, as amended (the
"Securities Act"), covering the Common Stock and the Warrant Shares
(collectively, the "Registrable Securities"). If a Registration Statement
covering the Registrable Securities is not filed with the SEC within thirty (30)
days of the Final Closing Date (the "Registration Date"), for each thirty (30)
day period (or pro-rata for any portion thereof) following the Registration Date
during which no Registration Statement is filed with respect to the Registrable
Securities, the Company will pay to each Holder, as liquidated damages, an
amount equal to 1.0% of the aggregate amount paid to the Company by such Holder
on the date it purchased shares pursuant to the SPA for shares of Common Stock
still held by such Holder. The amounts payable as liquidated damages pursuant to
this paragraph shall be payable in lawful money of the United States, and
amounts payable as liquidated damages shall be paid monthly within ten (10)
business days of the last day of each month following the Registration Date
until the Registration Statement is filed with the SEC. Amounts payable as
liquidated damages hereunder shall cease when a Holder no longer holds Common
Stock.
(b) The Company shall use all reasonable efforts to have such
registration statement declared effective within sixty (60) days after such
filing, and to maintain the effectiveness and use of such registration statement
for a period of no less than the earlier of (i) two years following the
effective date thereof, or (ii) such time when all Common Stock covered by such
registration statement have been sold. If a Registration Statement covering the
Registrable Securities is not declared effective by the SEC within one hundred
twenty (120) days
after the filing date (subject to extension for an additional thirty (30) day
period in the case of any registration statement which receives full review by
the SEC staff), then the Company shall make pro-rata payments to each Holder, as
liquidated damages, in an amount equal to 1.0% of the aggregate amount paid by
such Holder on the date it purchased shares pursuant to the SPA for shares of
Common Stock still held by such Investor, for any 30-day period or pro rata for
any portion thereof following the date by which such Registration Statement
should have been effective (the "Blackout Period"). The amounts payable as
liquidated damages pursuant to this paragraph shall be paid monthly within ten
(10) business days of the last day of each month following the commencement of
the Blackout Period until the termination of the Blackout Period. Such payment
shall be made to each Investor in lawful money of the United States. The Company
shall not be obligated to pay any amounts payable as liquidated damages
hereunder to any Holder (i) from and after such time as such Holder no longer
holds Common Stock (ii) to the extent any such Investor has elected to exclude
all of its Registrable Securities from a registration statement.
2. Piggyback Registration Statement. If, at any time before the automatic
registration above, the Company proposes to file any registration statement
under the Securities Act for purposes of a public offering of securities of the
Company (including, but not limited to, registration statements relating to
secondary offerings of securities of the Company, but excluding registration
statements relating to employee benefit plans or with respect to corporate
reorganizations or other transactions under Rule 145 of the Securities Act or
initial public offerings) it will give written notice by registered mail, at
least thirty (30) days prior to the filing of each registration statement, to
the Holders of this Warrant of its intention to do so. If the Holder notifies
the Company within twenty (20) days after receipt of any such notice of its or
their desire to include any such securities in such proposed registration
statement, the Company shall afford the Holders the opportunity to have any such
Warrant Shares registered under such registration statement.
3. Obligations of the Company. In connection with the filing of any
registration statement herein, the Company shall:
2.1 Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
2.2 Furnish to the Holders such numbers of copies of a prospectus,
including a 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 Registrable Securities owned by them.
2.3 Use its reasonable best efforts to register and qualify the
securities covered by such registration statement under such other securities or
"blue sky" laws of such jurisdictions as shall be reasonably requested by the
Holders; provided, however, that the Company shall not
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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.
2.4 Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
2.5 Cause all Registrable Securities covered by such registration
statement to be listed on each securities exchange on which similar securities
listed by the Company are then listed.
3. Obligations of the Holders.
Each Holder of Registrable Securities shall furnish to the Company
such information regarding such Holder, the number of Registrable Securities
owned and proposed to be sold by it, the intended method of disposition of such
securities and any other information as shall be required to effect the
registration of such Holder's Registrable Securities, and cooperate with the
Company in preparing the registration statement and in complying with the
requirements of the Securities Act.
4. Registration Expenses.
The Company shall bear and pay all expenses incurred in connection
with any registration, filing or qualification of Registrable Securities,
including without limitation all registration, listing, filing and qualification
fees, printers and accounting fees, but excluding (i) underwriting discounts and
commissions relating to the Registrable Securities and (ii) legal fees and
disbursements of counsel retained by the Holders.
5. Suspension of Effectiveness.
If the Company shall furnish to all Holders a certificate signed by
the President or Chief Executive Officer of the Company stating that, in the
good faith judgment of the Board of Directors of the Company, it is necessary to
suspend the effectiveness of any registration statement filed hereunder, the
Company shall have the right, exercisable one time only in any consecutive
twelve (12) month period, to suspend the effectiveness of the registration
statement with respect to such offering for a period of not more than an
aggregate of sixty (60) days.
6. Indemnification.
6.1 To the extent permitted by law, the Company will indemnify each
Holder, its directors, officers, shareholders, employees, agents and affiliates,
legal counsel for the
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Holders, and each person controlling such Holder within the meaning of the
Securities Act, with respect to which registration, qualification or compliance
of Registrable Securities has been effected pursuant to this Agreement, against
any losses, claims, damages, liabilities or actions in respect thereof
(collectively, "Damages"), arising out of or based on any untrue statement or
alleged untrue statement of a material fact contained in a Registration
Statement filed pursuant hereto, prospectus offering circular or other document,
or any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading, or
any violation or alleged violation by the Company of the Securities Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), or any state
securities laws or any rule or regulation promulgated under such laws and
relating to action or inaction required of the Company in connection with any
such registration, qualification or compliance; and the Company will pay each
such Holder any legal and other expenses reasonably incurred by them in
connection with investigating or defending any such claim, loss, damage,
liability or action; provided, however, that the indemnity contained in this
Section 6.1 shall not apply to: (i) amounts paid in settlement of any such
Damages if settlement is effected without the consent of the Company (which
consent shall not unreasonably be withheld); (ii) any such Damages arising out
of or a based upon any untrue statement or omission based upon information
furnished to the Company by such Holder and stated to be for use in connection
with the offering of securities of the Company; or (iii) any such Damages
arising out of or based upon such Holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto.
6.2 To the extent permitted by law, each Holder will, if Registrable
Securities held by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected pursuant to this
Agreement, indemnify the Company, each of its directors, officers, shareholders,
employees, agents and affiliates, each legal counsel and independent accountant
of the Company, each person who controls the Company within the meaning of the
Securities Act, and each other such Holder, each of its directors, officers,
shareholders, employees, agents and affiliates, legal counsel, and each person
controlling such other Holder within the meaning of the Securities Act, against
all Damages arising out of or based upon arising any untrue statement or alleged
untrue statement of a material fact contained in a registration statement filed
pursuant hereto, prospectus offering circular or other document, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, or any
violation or alleged violation by such Holder of the Securities Act, the
Exchange Act, or any state securities laws or any rule or regulation promulgated
under such laws and relating to action or inaction required of such Holder in
connection with any such registration, qualification or compliance; and such
Holder will pay the Company or such other Holders any legal and other expenses
reasonably incurred by them in connection with investigating or defending any
such claim, loss, damage, liability or action, in each case, to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission is made in such registration statement, prospectus,
offering circular or other document in reliance on and in conformity with
information furnished to the Company by such Holder and stated to be for use in
connection with the offering of securities of the Company; provided, however,
that the indemnity contained in this Section 6.2
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shall not apply to amounts paid in settlement of any such Damages if settlement
is effected without the consent of such Holder (which consent shall not
unreasonably be withheld).
6.3 Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 6, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so chooses, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain one separate counsel, with the reasonable fees and
expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 6, but the omission to
so deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 6.
6.4 If the indemnification provided for in this Section 6 is held by
a court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability, claim, damage or expense referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such Damages in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the statements or omissions
that resulted in such Damages as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
6.5 The obligations of the Company and the Holders under this
Section 5 shall survive the completion of any offering of Registrable Securities
pursuant to a registration statement under this Agreement.
7. Notices.
7.1 Any notice or communication required or permitted hereunder
shall be given in writing and shall be made by hand delivery, by confirmed
facsimile, by overnight courier or by registered or certified mail, addressed
(i) if to a Holder, to such Holder's address as
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set forth on Schedule A hereto, and (ii) if to the Company, to XXXXX Online,
Inc. 00 Xxxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, facsimile number (000) 000-0000,
Attn: Xxx Xxx, with a copy to Xxxxxxx Krooks & Xxxx P.C., 000 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000, facsimile number (000) 000-0000, Attn: Xxxxxxxx X. Xxxxxxx, Esq.
7.2 All such notices and other communications shall be deemed to
have been delivered and received (i) in the case of personal delivery or
facsimile, on the date of such delivery, (ii) in the case of overnight courier,
on the business day after the date when sent, and (iii) in the case of
registered or certified mail, on the third business day following such mailing.
8. Miscellaneous.
8.1 This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to the principles of the
conflict of laws thereof. The parties hereby irrevocably and unconditionally
consent to submit to the exclusive jurisdiction of the courts of the State of
New York located in New York County and any Federal court located within New
York County for any actions, suits or proceedings arising out of or relating to
this Agreement. The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement in the courts of the State of New York located in New York
County or the courts of the United States of America located in New York County,
and hereby further irrevocably and unconditionally waive and agree not to plead
or claim in any such court that any such action, suit of proceeding brought in
any such court has been brought in an inconvenient forum.
8.2 Any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and the Holders of a majority of the Registrable
Securities then outstanding. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each Holder of any Registrable Securities
then outstanding, each future Holder of all such Registrable Securities, and the
Company.
8.3 Nothing in this Agreement, express or implied, is intended to
confer upon any party other than the parties hereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement, excepts as
expressly provided herein.
8.4 If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
8.5 The headings of the Sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
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8.6 This Agreement constitutes the entire contract among the Company
and the Holders relative to the subject matter hereof and supersedes in its
entirety any and all prior agreements, understandings and discussions with
respect thereto .
8.7 The Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
COMPANY:
XXXXX ONLINE, INC.
By:___________________________
Name: Xxxxx Xxxxxxxxxx
Title: Chief Executive Officer
HOLDERS:
Caxton Equity Growth LLC
By: _______________________
Name:
Title:
Caxton Equity Growth (BVI) Ltd.
By: _______________________
Name:
Title:
Discovery Capital Partners
By: _______________________
Name:
Title:
Special Situations Private Equity
Fund, L.P.
By: _______________________
Name:
Title:
Special Situations Fund III, L.P.
By: _______________________
Name:
Title:
Schedule A
Number of
Holder Name Holder Address Registrable Securities
----------- -------------- ----------------------
Caxton Equity Growth LLC SEE SPA Common Stock: 26,200
Warrant Shares: 5,240
Caxton Equity Growth (BVI) Ltd. SEE SPA Common Stock: 152,300
Warrant Shares: 30,460
Caxton International Limited SEE SPA Common Stock: 321,500
Warrant Shares: 64,300
Discovery Capital Partners SEE SPA Common Stock: 250,000
Warrant Shares: 50,000
Special Situations Private Equity
Fund, L.P. SEE SPA Common Stock: 500,000
Warrant Shares: 100,000
Special Situations Fund III, L.P. SEE SPA Common Stock: 750,000
Warrant Shares: 150,000
