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Exhibit 10.8
Form of Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of November ___, 1998 (the
"Agreement") between SpatiaLight, Inc., a New York corporation (the "Company"),
and {_____}, a Lender.
ARTICLE I
CERTAIN DEFINITIONS
1.1 "Business Day" means any day on which the Nasdaq National Market is
open for trading.
1.2 "Closing Date" means the date of closing of the loan transaction
contemplated by the Convertible Note.
1.3 "Common Stock" means the common stock, par value $.01 per share, of
the Company, any security of the Company now outstanding or hereafter issued by
it which is convertible or exchangeable into Common Stock and any shares of
capital stock of the Company hereafter authorized which is not limited to a
fixed sum or percentage of par or stated value in respect to the rights of their
holders to participate in dividends or in the distribution of assets upon any
liquidation, dissolution or winding up of the Company.
1.4 "Convertible Notes" means the Company's 6% Convertible Secured
Notes in an aggregate not to exceed Two Million ($2,000,000) Dollars in favor of
Lender and the other Lenders participating in the Convertible Secured Loan.
1.5 "Demand Registration" has the meaning set forth in Paragraph 3.1.
1.6 "Eligible Securities" means all or any portion of the shares of
Common Stock issuable or issued (a) upon the conversion of any Convertible Note,
(b) in payment of any amount of interest due on any Convertible Note, (c) upon
the conversion of any notes outstanding as of the date hereof to Argyle Capital
Management Corporation, and (d) in each of case (a), (b) or (c), all other
securities issued with respect thereto by reason of dividends, stock splits,
combinations or similar transactions. Securities shall cease to be Eligible
Securities for all purposes of this Agreement when (i) a registration statement
with respect to the sale of such securities shall have become effective under
the Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) such securities are permitted to be sold
pursuant to Rule 144(k) (or any successor provision to such Rule) under the
Securities Act, (iii) such securities shall have been otherwise transferred
pursuant to an applicable exemption under the Securities Act, new certificates
for such securities not bearing a legend restricting further transfer shall have
been delivered by the Company and such securities shall be freely transferable
to the public without registration under the Securities Act, or (iv) a written
opinion of counsel of the Company addressed to the Stockholder owning such
securities to the effect that such securities may be sold without registration
under the Securities Act has been delivered to such Stockholder.
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1.7 "Person" means an individual, a partnership (general or limited),
limited liability company, corporation, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a
quasi-governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
1.8 "Piggyback Registration" has the meaning set forth in Paragraph
4.1.
1.9 The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing with the SEC a registration
statement in compliance with the Securities Act and the declaration or ordering
of the effectiveness of such registration statement.
1.10 "Registration Expenses" shall mean all expenses, other than
Selling Expenses (as defined below), incurred by the Company in complying with
this Agreement, including, without limitation, all registration, qualification
and filing fees, printing expenses, escrow fees, fees and disbursements of
counsel, accountants and other experts employed by the Company, blue sky fees
and expenses, the expense of any special audits incident to or required by any
such registration and the expenses contemplated by Paragraph 6.3.
1.11 "Resale Registration" shall have the meaning set forth in Article
2.
1.12 "SEC" means the Securities and Exchange Commission.
1.13 "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
1.14 "Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered on
behalf of the Stockholders.
1.15 "Selling Stockholder" means any Stockholder selling Eligible
Securities registered pursuant to Article 2, 3 or 4 hereof.
1.16 "Stockholder" means any person holding Eligible Securities to whom
the rights under this Agreement have been transferred in accordance with
Paragraph 10.3.
ARTICLE 2
RESALE REGISTRATION
The Company hereby agrees to file under the Securities Act not later
than 90 days after the Company has delivered the audited financial statements
referred to in Section 5(i) of the Convertible Note, a registration statement on
any appropriate registration form to register all Eligible Securities ("Resale
Registration"). The Company shall have the right to include in any such Resale
Registration any other securities of the Company, including, but not limited to,
any securities of the Company (the "Earlier Securities") desired to be
registered by persons or entities also having registration rights granted by the
Company.
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ARTICLE 3
DEMAND REGISTRATION
3.1 Requests for Registration. At any time after December 31, 1999, the
holders of at least a majority of the Eligible Securities then deemed
outstanding may, on not more than one occasion during the term of this
Agreement, request registration on an appropriate registration form under the
Securities Act of all or part of their Eligible Securities for purposes of
conducting an underwritten offering thereof. Any registration requested pursuant
to this Paragraph 3.1 is referred to herein as a "Demand Registration." The
request for a Demand Registration shall specify the approximate number of
Eligible Securities requested to be registered and the anticipated per share
price range for such offering.
3.2 Notice to Other Holders. Within ten days after receipt of a request
for a Demand Registration, the Company shall give written notice thereof to all
the other holders of Eligible Securities then deemed outstanding. Each of the
other holders shall have the right, within 15 Business Days after the delivery
of such notice, to request that the Company include all or a portion of such
holder's Eligible Securities in such Demand Registration.
3.3 Permitted Demand Registrations. The Stockholders shall be entitled
to request the Demand Registration only if the aggregate offering value of the
Eligible Securities requested to be registered in any such registration equals
at least $500,000. A registration shall not count as a permitted Demand
Registration until it has become effective (unless the Demand Registration has
not become effective due solely to the fault of the holders requesting such
registration).
3.4 Priority on Demand Registrations. The Company shall not include in
any Demand Registration any securities that are not Eligible Securities without
the prior written consent of the Selling Stockholders of at least a majority of
the Eligible Securities included in such registration. If the managing
underwriters in a Demand Registration advise the Company in writing that in
their opinion the number of Eligible Securities and, if permitted hereunder,
other securities requested to be included in such offering, exceeds the number
of Eligible Securities and other securities, if any, which can be sold in an
orderly manner in such offering within a price range acceptable to the Selling
Stockholders of a majority of the Eligible Securities initially requesting
registration, the Company shall include in such registration, first, the number
of Eligible Securities requested to be included by Selling Stockholders that
initially requested such registration which in the opinion of such underwriters
can be sold in an orderly manner within the price range of such offering, pro
rata among such Selling Stockholders on the basis of the amount of Eligible
Securities owned by each such Selling Stockholder, second, the number of
Eligible Securities requested to be included by Selling Stockholders that
elected to participate in such registration pursuant to Section 3.2 which in the
opinion of such underwriters can be sold in an orderly manner within the price
range of such offering, pro rata among such Selling Stockholders on the basis of
the amount of Eligible Securities owned by each such Selling Stockholder, and
third, the number of securities that are not Eligible Securities that the
Selling Stockholders agreed to include in such registration as provided above
which in the opinion of such underwriters can be sold in an orderly manner
within the price range of such offering, pro rata among such the Persons holding
such securities on the basis of the amount of such securities owned by each such
Person.
3.5 Deferral of Registration Demand in the Event of Company Offering.
In the event that prior to the time a Demand Registration is requested the
Company has in good faith commenced the
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preparation of a registration statement for an underwritten offering of its
securities (a "Company Offering") and the managing underwriter delivers a
written opinion (a "Transaction Deferral Opinion") to the requesting
Stockholders stating, in its good faith opinion, that the proposed offering
pursuant to the Demand Registration will materially and adversely affect the
Company Offering, then the Company will be permitted to defer the filing of the
registration statement pursuant to the Demand Registration until the earliest of
(a) the abandonment of the Company Offering, (b) 90 days after receipt by the
requesting Stockholders of the Transaction Deferral Opinion (unless the Company
Offering has become effective on or prior to such 90th day) and (c) if the
Company Offering has become effective on or prior to such 90th day, 120 days
after the effective date of the Company Offering (or such shorter period as may
be requested by the managing underwriter for the Company Offering). The Company
will not be permitted to defer a Demand Registration pursuant to this Paragraph
3.5 more than once in any 12-month period. If the Company defers any
registration statement pursuant to this Paragraph 3.5 and the requesting
Stockholders determine not to proceed with such registration on or prior to the
end of the permitted deferral period, the registration shall not be counted as a
permitted Demand Registration hereunder. Notwithstanding the foregoing, if a
Demand Registration is made within 60 days prior to the end of the Company's
then current fiscal year and such registration is to be effected other than on
Form S-2 or other comparable form for the registration of securities, the
Company will have the right to delay the filing of a registration statement for
150 days or until the Company receives its audited financial statements for such
fiscal year, whichever occurs first.
3.6 Restrictions on Registration. The Company shall not be obligated to
effect any Demand Registration within 120 days after the effective date of a
registration involving an underwritten public offering by the Company and in
which the Stockholders were given piggyback rights pursuant to Article 4 and in
which there was no reduction in the number of Eligible Securities requested to
be included. The Company may postpone for up to 120 days the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company's board of directors determines in its reasonable good faith judgment
that such Demand Registration would reasonably be expected to have a material
adverse effect on any proposal or plan by the Company to engage in any
acquisition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer, reorganization or similar transaction;
provided that in such event, the Stockholders initially requesting such Demand
Registration shall be entitled to withdraw such request and, if such request is
withdrawn, the Demand Registration shall not count as a Demand Registration
hereunder. The Company may delay a Demand Registration hereunder only once in
any twelve-month period.
3.7 Selection of Underwriters. The holders of a majority of the
Eligible Securities initially requesting registration hereunder shall have the
right to select the investment banker(s) and manager(s) to administer the
offering, if any, subject to the Company's approval which shall not be
unreasonably withheld.
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ARTICLE 4
PIGGYBACK REGISTRATION
4.1 Right to Piggyback. Commencing on the date hereof, whenever the
Company proposes to register any of its securities under the Securities Act for
an underwritten public offering (other than pursuant to a Demand Registration)
and the registration form to be used may be used for the registration of
Eligible Securities (a "Piggyback Registration"), the Company shall give prompt
written notice (in any event within three Business Days after its receipt of
notice of any exercise of demand registration rights other than under this
Agreement) to all holders of Eligible Securities then deemed outstanding of its
intention to effect such a registration and shall include in such registration
all Eligible Securities with respect to which the Company has received written
requests for inclusion therein within 15 Business Days after delivery of the
Company's notice. Notwithstanding the foregoing, the Company shall not be
required to effect any registration of Eligible Securities under this Paragraph
4.1 incidental to the registration of any of its securities in connection with
mergers, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans.
4.2 Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the Company, the Company will include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the Eligible
Securities requested to be included in such registration, pro rata among the
holders of such Eligible Securities on the basis of the number of shares owned
by each such holder, and (iii) third, other securities requested to be included
in such registration.
4.3 Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially requesting
such registration, the Company shall include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration, (ii) second, the Eligible Securities requested to be included in
such registration, pro rata among the holders of such Eligible Securities on the
basis of the number of shares owned by each such holder, and (iii) third, other
securities requested to be included in such registration.
4.4 Selection of Underwriters. If any Piggyback Registration is an
underwritten secondary registration on behalf of the holders of the Company's
securities, the selection of investment banker(s) and manager(s) for the
offering must be reasonably acceptable to the holders of a majority of the
Eligible Securities included in such Piggyback Registration. Such approval will
be assumed unless notice to the contrary is given by the holders of a majority
of the Eligible Securities included in such Piggyback Registration to the
Company within ten days of such holders' receipt of notice of selection by the
Company.
4.5 Other Registrations. If the Company has previously filed a
registration statement with respect to Eligible Securities pursuant to Article 3
or pursuant to this Article 4 and if such previous registration has not been
withdrawn or abandoned, the Company shall not, without the prior
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written consent of the holders of a majority of the Eligible Securities included
therein, file or cause to be effected any other registration for the
underwritten offering, issue or sale of any of its equity securities or
securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act (except on Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of at least 120 days has elapsed from the effective
date or earlier withdrawal of such previous registration.
4.6 Determination Not to Register or to Delay Registration. If at any
time after giving written notice of its intention to register any securities as
to which the Stockholders shall have the rights provided in this Article 4 and
prior to the effective date of the registration statement with respect thereto,
the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give written
notice of such determination to the Stockholders and, thereupon, (i) in the case
of a determination not to register, the Company shall be relieved of its
obligation to register any Eligible Securities in connection with such
registration and (ii) in the case of a determination to delay such registration,
the Company shall be permitted to delay registration of any Eligible Securities
requested to be included in such registration for the same period as the delay
in registering the other securities proposed to be registered by the Company,
but, in either such case, without prejudice to the rights of the holders of
Eligible Securities under Articles 2 and 3.
ARTICLE 5
HOLDBACK AGREEMENTS
5.1 Holdback by Stockholders. Each Stockholder shall not effect any
public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the five business days prior to and, if
required by the underwriter, the 90-day period (or such shorter period as the
underwriters managing the registered public offering may permit) beginning on
the effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration in which Eligible Securities are included (except as part
of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
5.2 Holdback by Company. In connection with any underwritten
registration, the Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the five business days prior to and
during the 90-day period (or such longer period as may be requested by the
underwriters managing the registered public offering) beginning on the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form), unless the underwriters
managing the registered public offering otherwise agree, and (ii) shall use its
reasonable best efforts to cause each holder of at least 5% (on a fully-diluted
basis) of its Common Stock, or any securities convertible into or exchangeable
or exercisable for Common Stock, purchased from the Company at any time after
the date of this Agreement (other than in a registered public offering or
pursuant to stock options granted under a stock option plan primarily for
employees, officers or directors) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
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ARTICLE 6
REGISTRATION EXPENSES
6.1 Registration Expenses. All Registration Expenses in connection with
any registration pursuant to this Agreement shall be borne by the Company
whether or not it has become effective and whether or not such registration has
counted as the permitted Demand Registrations (unless such registration does not
become effective due solely to the fault of the Selling Stockholders requesting
such registration). The Company shall, in any event, pay its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expense of any annual
audit or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or on
the NASD automated quotation system.
6.2 Selling Expenses. The Selling Stockholders shall be responsible for
all Selling Expenses relating to Eligible Securities registered on behalf of the
Selling Stockholders.
6.3 Fees and Disbursements of Stockholders' Counsel. In connection with
the Resale Registration, the Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Eligible Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Eligible Securities initially
requesting such registration.
6.4 Allocation of Certain Expenses. To the extent Registration Expenses
are not required to be paid by the Company, each holder of securities included
in any registration hereunder shall pay those Registration Expenses allocable to
the registration of such holder's securities so included, and any Registration
Expenses not so allocable shall be borne by all sellers of securities included
in such registration in proportion to the aggregate selling price of the
securities to be so registered.
ARTICLE 7
REGISTRATION PROCEDURES
7.1 Registration and Qualification. The Company shall, (i) pursuant to
Article 2 and (ii) whenever the Stockholders have requested that any Eligible
Securities be registered pursuant to this Agreement, use its reasonable best
efforts to effect the registration and the sale of such Eligible Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a registration statement
with respect to such Eligible Securities and use its reasonable best
efforts to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company shall furnish to the
counsel selected by the holders of a majority of the Eligible
Securities covered by such registration statement copies of all such
documents proposed to be filed, for review by such counsel for a period
of at least three business days after its receipt thereof) and keep the
registration statement continuously effective under the Securities Act
(i) in the case of the Resale Registration, until the earlier of (X)
the fifth anniversary of the Closing Date and (Y) such date as of which
all Eligible Securities shall cease to be Eligible Securities and (ii)
in the case of the Demand
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Registration and any Piggyback Registration, for a period of not less
than one year (or such shorter period as may be required until all of
the Eligible Securities so registered have been sold);
(b) notify each Selling Stockholder of the effectiveness of
each registration statement filed hereunder and prepare and file with
the SEC such amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective for the period described in
subparagraph (a) and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the
intended methods of disposition by the Selling Stockholders set forth
in such registration statement;
(c) furnish to each Selling Stockholder such number of copies
of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the
Eligible Securities owned by Selling Stockholders;
(d) use its reasonable best efforts to register or qualify
such Eligible Securities under such other securities or blue sky laws
of such jurisdictions as any Selling Stockholder reasonably requests
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Selling Stockholder to consummate
the disposition in such jurisdictions of the Eligible Securities owned
by such Selling Stockholder; provided, however, that the Company shall
not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) notify each Selling Stockholder, 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 contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such
Selling Stockholder, the Company will prepare a supplement or amendment
to such prospectus so that, as thereafter delivered to the purchasers
of such Eligible Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
(f) as soon as practicable after the Common Stock shall be
eligible for listing on the Nasdaq National Market or, failing that,
the Nasdaq SmallCap Market, use all reasonable efforts to cause all
such Eligible Securities to be listed on the Nasdaq National Market or
the Nasdaq SmallCap Market, as the case may be;
(g) provide a transfer agent and registrar for all such
Eligible Securities not later than the effective date of such
registration statement;
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(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
reasonable actions as the holders of a majority of the Eligible
Securities being sold or the underwriters, if any, reasonably request
in order to expedite or facilitate the disposition of such Eligible
Securities (including effecting a stock split or a combination of
shares);
(i) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC;
(j) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any common stock included in such
registration statement for sale in any jurisdiction, the Company shall
use its reasonable best efforts promptly to obtain the withdrawal of
such order;
(k) use its reasonable best efforts to cause such Eligible
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the sellers thereof to consummate the
disposition of such Eligible Securities; and
7.2 Furnishing Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Eligible Securities of any Selling Stockholder that such Selling
Stockholder shall furnish to the Company such information regarding itself, the
Eligible Securities held by it and the intended method of disposition of such
securities as shall be required to effect the registration of such Selling
Stockholder's Eligible Securities.
7.3 Underwriting. In the event that any registration pursuant to this
Agreement shall involve, in whole or in part, an underwritten offering, the
Company may require Eligible Securities to be included in such underwriting on
the same terms and conditions as shall be applicable to the Common Stock being
sold through underwriters under such registration. In such case, the holders of
Eligible Securities on whose behalf Eligible Securities are to be distributed by
such underwriters shall be parties to any such underwriting agreement.
ARTICLE 8
INDEMNIFICATION
8.1 In the event of any registration of any Eligible Securities
hereunder, the Company hereby agrees to indemnify and hold harmless each
Stockholder and, to the extent applicable, its directors and officers, its
partners, its trustees and each Person who controls any of such Persons against
any losses, claims, damages, liabilities and expenses, joint or several, to
which such Person may be subject under the Securities Act or otherwise insofar
as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any final prospectus included therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, or (ii)
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, and
the Company
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will promptly reimburse each such Person for any legal or any other expenses
reasonably incurred by such Person in connection with investigating or defending
any such loss, claim, damage, liability, action or proceeding; provided that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any final
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholders
expressly for use in the registration statement. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of a
Selling Stockholder or any such Person and shall survive the transfer of such
securities by the Selling Stockholders.
8.2 The Selling Stockholders agree severally and not jointly to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Paragraph 8.1 of this Article 8) the Company, each director of the
Company, each officer of the Company who shall sign such registration statement,
and each Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement in or omission from such
registration statement, any final prospectus included therein, or any amendment
or supplement thereto, but only to the extent that such statement or omission
was made in reliance upon and in conformity with written information furnished
by such Selling Stockholders to the Company expressly for use in the
registration statement; provided that the obligation to indemnify and the
contribution obligation set forth in Article 9 hereof will be limited to the
gross proceeds received by such holder from the sale of Eligible Securities.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such director, officer
or controlling Person and shall survive the transfer of the registered
securities by the Selling Stockholders and the expiration of this Agreement.
8.3 Indemnification similar to that specified in the preceding
subdivisions of this Article 8 (with appropriate modifications) shall be given
by the Company and the Selling Stockholders with respect to any required
registration or other qualification of such Eligible Securities under any
federal or state law or regulation of governmental authority other than the
Securities Act.
ARTICLE 9
CONTRIBUTION
Subject to the limitation on indemnification and contribution set forth
in Section 8.2 of Article 8, if the indemnification provided for in Article 8
hereof is unavailable to a party entitled to indemnification in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses in such proportion as
is appropriate to reflect the relative fault of the Company on the one hand and
of the Selling Stockholders on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or expenses
as well as any other relevant equitable considerations. The relative fault of
the Company on the one hand and of the Selling Stockholders on the other 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 Company, or by the
Selling Stockholders, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The indemnity and contribution obligations of each indemnifying party
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set forth herein shall be in addition to any liability or obligation such
indemnifying party may otherwise have to any indemnified party, including under
this Agreement.
ARTICLE 10
MISCELLANEOUS
10.1 No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into nor shall it, on or after the date hereof, enter into, any
agreement with respect to its capital stock that is inconsistent with the rights
granted to the Stockholders herein or otherwise conflicts with the provisions
hereof.
10.2 Modification and Amendment. This Agreement may not be changed,
modified, discharged or amended, except by an instrument signed by the
Stockholders owning at least 50% of the Eligible Securities.
10.3 Transfer of Registration Rights. The obligation of the Company to
register Eligible Securities granted to Selling Stockholders hereunder may be
assigned to one or more transferees or assignees of Selling Stockholders, as the
case may be, in connection with any transfer or assignment in a private
transaction of Eligible Securities. Any transfer of registration rights pursuant
to this Section shall be effective upon receipt by the Company of written notice
from a Selling Stockholder transferring Eligible Securities (i) stating the name
and address of the transferee, (ii) the number of Eligible Securities
transferred and (iii) the date of transfer, which notice shall be accompanied by
an agreement of the transferee stating that all of the terms and provisions of
this Agreement will be binding upon and enforceable against such transferee.
10.4 Notices All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery
service, facsimile transmission or by certified mail, return receipt requested,
postage prepaid. Notices shall be deemed given when actually received, which
shall be deemed to be not later than the next Business Day if sent by overnight
courier or facsimile transmission or after five Business Days if sent by mail.
Notice to Stockholders shall be made to the address listed on the stock transfer
records of the Company. Notice to the Company shall be made to the Company's
principal executive offices at 0-X Xxxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxx
00000, or such other address for which the Company has given written notice to
the Stockholder.
10.5 Captions. The captions or headings in this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit
the scope or intent of this Agreement.
10.6 Severability. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
10.7 Governing Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of New York, without reference to
its rules as to conflicts or choice of laws.
12
10.8 Entire Agreement. This Agreement constitutes the entire agreement
and understanding among the parties and supersedes any prior understandings
and/or written or oral agreements among them respecting the subject matter
herein.
10.9 Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument. Execution and delivery by facsimile shall constitute
good and valid execution and delivery unless and until replaced or substituted
by an original executed instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
SPATIALIGHT, INC.
By
---------------------------------
Xxxxxxx X. Xxxxxx
Authorized Signatory
Lender:
-----------------------------------
{_____}
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EXHIBIT A
Schedule of Lenders
Lender Number of Shares Investment Amount
------ ---------------- -----------------
Xxxxxx X. Xxxxxx 111,110.67 $83,333.00
Xxxxxxx X. Xxxxxx 111,110.67 $83,333.00
Xxxxxx X. Xxxxxx 111,110.67 $83,333.00
Xxxxxxx X. Xxxx 50,000.00 $37,500.00
Xxxxxx X. Xxxxx 66,666.67 $50,000.00
Xxxx X. Xxxxx 33,333.33 $25,000.00
Xxxxx X. Xxxxx, Xx. 33,333.33 $25,000.00
Xxxxx X. Xxxxx, Xx. 33,333.33 $25,000.00
Xxxxxx X. Xxxxx 66,666.67 $50,000.00
Xxxxxx X. Xxxxx 133,333.33 $100,000.00
Xxxxx Xxxxxxx Xxxxx Trust 66,666.67 $50,000.00
Xxxx Xxxxx Xxxxx Trust 66,666.67 $50,000.00
Xxxxxx Xxxxxxx Xxxxx 133,333.33 $100,000.00
FBO Xxxxxx X. Xxxxxx, M.D. 166,666.67 $125,000.00
Birmingham Hematology & Oncology Associates, SLB
Flex Prototype P/S Plan DTD 10-17-85
Xxxxxx X. Xxxxxx, M.D. 166,666.67 $125,000.00
Xxxxxxxx Limited Partnership 200,000.00 $150,000.00
Xxx Xxxxxxxx 133,333.33 $100,000.00
Xxxxxxx X. Xxxxxxxx Xxxxx Trust 133,333.33 $100,000.00
Xxxx Xxxxxxx 33,333.33 $25,000.00
Xxxxxxxxx X. Xxxx 100,000.00 $75,000.00
