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EXHIBIT 4.9
REGISTRATION RIGHTS AGREEMENT
among
OPTIMARK TECHNOLOGIES, INC.
and
THE HOLDERS OF ITS SERIES B
CONVERTIBLE PARTICIPATING
PREFERRED STOCK
- April 23, 1998 -
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TABLE OF CONTENTS
PAGE
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1. Definitions..............................................................................1
2. General; Securities Subject to this Agreement............................................3
(a) Grant of Rights...................................................................3
(b) Registrable Securities............................................................3
(c) Holders of Registrable Securities.................................................3
3. Piggy-Back Registration..................................................................3
(a) Piggy-Back Rights.................................................................3
(b) Expenses..........................................................................4
4. Holdback Agreements......................................................................4
(a) Restrictions on Public Sale by Designated Holders.................................4
(b) Restrictions on Public Sale by the Company........................................4
5. Registration Procedures..................................................................5
(a) Obligations of the Company........................................................5
(b) Seller Information................................................................7
(c) Notice to Discontinue.............................................................8
(d) Registration Expenses.............................................................8
6. Indemnification; Contribution............................................................8
(a) Indemnification by the Company....................................................8
(b) Indemnification by Designated Holders.............................................9
(c) Procedures........................................................................9
(d) Contribution.....................................................................10
(e) Limitations......................................................................10
7. Rule 144................................................................................10
8. Miscellaneous...........................................................................10
(a) Recapitalizations, Exchanges, etc................................................10
(b) No Inconsistent Agreements.......................................................11
(c) Remedies.........................................................................11
(d) Amendments and Waivers...........................................................11
(e) Notices..........................................................................11
(f) Successors and Assigns; Third Party Beneficiaries................................12
(g) Counterparts.....................................................................12
(h) Headings.........................................................................12
(i) Governing Law....................................................................12
(j) Severability.....................................................................12
(k) Entire Agreement.................................................................12
(l) Further Assurances...............................................................13
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REGISTRATION RIGHTS AGREEMENT, dated April 23, 1998 (this "Agreement"),
among OptiMark Technologies, Inc., a Delaware corporation (the "Company"), and
the purchaser(s) ("Purchasers") of the Company's Series B Convertible
Participating Preferred Stock ("Series B Stock") listed on Schedule I hereto.
This Agreement is made in connection with the Series B Stock Purchase
Agreement (the "Stock Purchase Agreement"), between the Company and the
Purchasers pursuant to which the Company has agreed to issue and sell Series B
Stock to the Purchasers. Each share of Series B Stock is convertible into one
(1) share of Common Stock, subject to potential adjustments. In order to induce
the Purchasers to purchase Series B Stock, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Company has agreed to grant registration rights with respect to the Registrable
Securities (as hereinafter defined) as set forth in this Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement in addition to other
capitalized terms defined elsewhere herein, the following terms shall have the
meanings indicated:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Affiliate" shall mean any Person who is an "affiliate" of
another designated Person, as defined in Rule l2b-2 of the General Rules and
Regulations under the Exchange Act.
"Common Stock" means the common stock, par value $.01 per share,
of the Company or any other equity securities of the Company into which such
securities are converted, reclassified, reconstituted or exchanged.
"Company" has the meaning assigned to such term in the recital
to this Agreement.
"Company Underwriter" has the meaning assigned such term in
Section 3(a) below.
"Damages" has the meaning assigned to such term in Section 6(a)
below.
"Designated Holder" means each Purchaser and any transferee of
any Purchaser to whom Registrable Securities have been transferred in accordance
with the provisions of this Agreement and the Stockholders Agreement, other than
a transferee to whom such securities have been transferred pursuant to a
Registration Statement or Rule 144 or Regulation S under the Act.
"Exchange Act" means the Securities Exchange Act of 1934 as
amended, and the rules and regulations promulgated thereunder.
"Holders' Counsel" has the meaning assigned such term in Section
5(a)(i) below.
"Indemnified Party" has the meaning assigned such term in
Section 6(c) below.
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"Indemnifying Party" has the meaning assigned such term in
Section 6(c) below.
"Inspector" has the meaning assigned such term in Section
5(a)(viii) below.
"IPO Effectiveness Date" means the date upon which the Company
commences an initial offer for sale of shares of Common Stock pursuant to an
effective Registration Statement.
"NASD" means the National Association of Securities Dealers,
Inc.
"Other Rights Holders" means (i) the holders of the Company's
Series A Convertible Participating Preferred Stock, and (ii) any other Persons
(including, without limitation, the other holders of Series B Stock and The
Nasdaq Stock Market, Inc.) holding registration rights with respect to Common
Stock whose registration rights have not expressly been made junior to the
registration rights of the Designated Holders hereunder.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"Purchaser(s)" has the meaning assigned to such term in the
recital to this Agreement.
"Records" has the meaning assigned such term in Section
5(a)(viii) below.
"Registrable Securities" means each of the following: (a) any
and all shares of Common Stock owned by the Designated Holders and issued or
issuable upon conversion of shares of Series B Stock, (b) any other shares of
Common Stock acquired or owned by any of the Designated Holders prior to the IPO
Effectiveness Date, (c) any shares of Common Stock issued or issuable to any of
the Designated Holders with respect to shares of Common Stock or shares of
Series B Stock by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization or otherwise, and shares of Common Stock issuable upon
conversion, exercise or exchange thereof, and (d) to the extent exercisable at
the time such amount of Registrable Securities is to be determined, any and all
shares of Common Stock issuable upon exercise of the VSC Warrant.
"Registration Expenses" has the meaning set forth in Section
5(d) below.
"Registration Statement" means a Registration Statement filed
by the Company pursuant to the Act.
"SEC" means the Securities and Exchange Commission or any
successor agency then having jurisdiction to enforce the Act.
"Series B Stock" has the meaning assigned to such term in the
recital to this Agreement.
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"Stock Purchase Agreement" has the meaning assigned such term
in the recital to this Agreement.
"Stockholders Agreement" means the Amended and Restated
Stockholders Agreement dated April 23, 1998, as amended from time to time,
among the Company and certain stockholders thereof.
"VSC Warrant" means the Common Stock Purchase Warrant dated
April 23, 1998 pursuant to which Virginia Surety Company, Inc. has the right to
purchase up to 500,000 shares of Common Stock at an exercise price of $10.00
per share, subject to potential adjustment.
2. General; Securities Subject to this Agreement
(a) Grant of Rights. The Company hereby grants registration
rights to the Purchasers upon the terms and conditions set forth in this
Agreement.
(b) Registrable Securities. For purposes of this Agreement,
Registrable Securities will cease to be Registrable Securities when (i) a
Registration Statement covering such Registrable Securities has been declared
effective by the SEC, and such Registrable Securities have been disposed of
pursuant to such effective Registration Statement, (ii) the entire amount of
such Registrable Securities proposed to be sold in a single sale are or, in the
opinion of counsel satisfactory to the Company and the Designated Holder, each
in their reasonable judgment, may be distributed to the public without any
limitation as to volume pursuant to Rule 144 (or any successor provision then in
effect) under the Act, or (iii) such Registrable Securities are sold,
distributed or proposed to be sold or distributed by a Person not entitled to
the registration rights granted by this Agreement.
(c) Holders of Registrable Securities. A Person is deemed to
be a holder of Registrable Securities whenever such Person owns of record
Registrable Securities. If the Company receives conflicting instructions,
notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company may act upon the basis of the instructions,
notice or election received from the record owner of such Registrable
Securities.
3. Piggy-Back Registration
(a) Piggy-Back Rights. At any time after the IPO
Effectiveness Date, if either (I) the Company proposes to file a Registration
Statement with respect to an offering by the Company of Common Stock for its own
account (other than a Registration Statement on Form S-4 or S-8 or any
successors thereto) (a "Company Registration"), or (II) the Company is required
to file a Registration Statement upon demand by and for the account of any
"Initiating Holders", as defined and provided in Section 3 of the Registration
Rights Agreement dated August 27, 1996, as amended, among the Company and the
holders of its Series A Stock (a "Demand Registration"), then the Company shall
give written notice of such proposed filing to each of the Designated Holders of
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Registrable Securities at least thirty (30) days before the anticipated filing
date, and such notice shall describe the proposed registration and distribution
and offer such Designated Holders the opportunity to register such number of
Registrable Securities as each such holder may request. The Company shall, and
shall use reasonable efforts to cause the managing underwriter(s) of a proposed
underwritten offering (the "Company Underwriter") to, permit the Designated
Holders of Registrable Securities who have requested in writing to participate
in the registration for such offering to include such Registrable Securities in
such offering on the same terms and conditions as the securities of the Company
or the Initiating Holders included therein. In connection with any offering
under this Section 3(a) involving an underwriting, the Company shall not be
required to include any Registrable Securities in such underwriting unless the
holders thereof accept the terms of the underwriting as agreed upon between the
Company and the Company Underwriter, and then only in such quantity as will not,
in the opinion of the Company Underwriter, jeopardize the success of the
offering by the Company. If in the written opinion of the Company Underwriter
the registration of all or part of the Registrable Securities which the
Designated Holders have requested to be included would materially adversely
affect such public offering, then the Company shall include in the underwriting,
to the extent of the amount that the Company Underwriter believes may be sold
without causing such adverse effect, (A) in connection with a Company
Registration, first, all of the securities to be offered for the account of the
Company; and second, as a group, (i) the Registrable Securities requested by
Designated Holders to be sold in the offering, and (ii) the Common Stock
requested by Other Rights Holders to be sold in the offering, pro rata based
upon the number of shares of Registrable Securities/Common Stock owned by such
Persons; or (B) in connection with a Demand Registration, first, as a group, (i)
the Registrable Securities requested by Designated Holders to be sold in the
offering, and (ii) the Common Stock requested by Other Rights Holders to be sold
in the offering, pro rata based upon the number of shares of Registrable
Securities/Common Stock owned by such Persons, and second, all of the securities
to be offered for the account of the Company.
(b) Expenses. The Company shall bear all Registration
Expenses (other than underwriting discounts and commissions) in connection with
any registration pursuant to this Section 3; provided, however, that each
Designated Holder participating in such registration shall bear the costs of its
own legal counsel, if any.
4. Holdback Agreements
(a) Restrictions on Public Sale by Designated Holders. Each
Designated Holder of Registrable Securities agrees not to effect any public sale
or distribution of any Registrable Securities or of any securities convertible
into or exchangeable or exercisable for such Registrable Securities, including a
sale pursuant to Rule 144 under the Act, during the 180-day period beginning on
the effective date of any Registration Statement (except as part of such
registration), if and to the extent requested by the Company in the case of a
nonunderwritten public offering or if and to the extent requested by the Company
Underwriter in the case of an underwritten public offering.
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(b) Restrictions on Public Sale by the Company. The Company
agrees not to effect any public sale or distribution of any of its Common Stock,
or any securities convertible into or exchangeable or exercisable for such
securities (except pursuant to registrations on Form S-4 or S-8 or any successor
thereto), during the period beginning on the effective date of any Registration
Statement in which the Designated Holders of Registrable Securities are
participating and ending on the earlier of (i) the date on which all Registrable
Securities registered on such Registration Statement are sold and (ii) three (3)
months after the effective date of such Registration Statement.
5. Registration Procedures
(a) Obligations of the Company. Whenever registration of
Registrable Securities has been requested pursuant to Section 3 of this
Agreement, the Company shall use its reasonable efforts to effect the
registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
(i) use its reasonable efforts to prepare and file
with the SEC a Registration Statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which form
shall be available for the sale of the Common Stock and such Registrable
Securities in accordance with the intended method of distribution thereof, and
use its reasonable efforts to cause such Registration Statement to become
effective; provided, however, that (x) before filing a Registration Statement or
prospectus or any amendments or supplements thereto, the Company shall provide
counsel selected by the Designated Holders holding a majority of the Registrable
Securities being registered in such registration ("Holders' Counsel") and any
other Inspector (as hereinafter defined) with an adequate and appropriate
opportunity to participate in the preparation of such Registration Statement and
each prospectus included therein (and each amendment or supplement thereto) to
be filed with the SEC, which documents shall be subject to the review of
Holders' Counsel. and (y) the Company shall notify the Holders' Counsel and each
seller of Registrable Securities of any stop order issued or threatened by the
SEC and take all reasonable action required to prevent the entry of such stop
order or to remove it if entered;
(ii) 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 lesser of (x) three (3) months and (y) such shorter period
which will terminate when all Registrable Securities covered by such
Registration Statement have been sold, and comply with the provisions of the 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 sellers thereof set forth in such Registration Statement;
(iii) as soon as reasonably possible, furnish to each
seller of Registrable Securities, prior to filing a Registration Statement,
copies of such Registration Statement as is proposed to be filed, and thereafter
such number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto), the prospectus
included in such Registration Statement (including each preliminary prospectus)
and such other
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documents as each such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(iv) use its reasonable efforts to register or
qualify such Registrable Securities under such other securities or "blue sky"
laws of such jurisdictions as any seller of Registrable Securities may
reasonably request, and to continue such qualification in effect in such
jurisdiction for the lesser of (x) three (3) months and (y) such shorter period
which will terminate when all Registrable Securities covered by such
Registration Statement have been sold, and do any and all other acts and things
which may be reasonably necessary or advisable to enable any such seller to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller; provided, however, that the Company shall not be required
to (x) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 5(a)(iv), (y) subject
itself to taxation in any such jurisdiction or (z) consent to general service of
process in any such jurisdiction;
(v) use its reasonable efforts to cause the
Registrable Securities covered by such Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to enable the
seller or sellers of Registrable Securities to consummate the disposition of
such Registrable Securities;
(vi) upon discovery that, or upon the happening of
any event as a result of which, the prospectus included in a Registration
Statement covering Registrable Securities contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in light of the
circumstances under which they were made, (x) promptly prepare a supplement or
amendment to such prospectus and furnish to each seller of Registrable
Securities a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, after delivery to the purchasers of
such Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in
light of the circumstances under which they were made and (y) immediately prior
to the preparation of such amendment or supplement to such prospectus, notify
each seller of Registrable Securities of the anticipated preparation thereof;
(vii) enter into and perform customary agreements
(including an underwriting agreement in customary form with the Company
Underwriter, if any) and take such other actions as are prudent and reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities;
(viii) make available for inspection by any seller of
Registrable Securities, any managing underwriter participating in any
disposition pursuant to such Registration Statement, Holders' Counsel and any
attorney, accountant or other agent retained by any such seller or any managing
underwriter (each, an "Inspector" and collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due
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diligence responsibility, and cause the Company's and its subsidiaries'
officers, directors and employees, and the independent public accountants of the
Company, to supply all information reasonably requested by any such Inspector in
connection with such Registration Statement. Records that the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (x)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in the Registration Statement, (y) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or (z) the information in such Records was known to the Inspectors
on a non-confidential basis prior to its disclosure by the Company or has been
made generally available to the public. Each seller of Registrable Securities
agrees that it shall, upon learning that disclosure of such Records is sought in
a court of competent jurisdiction, give notice to the Company and allow the
Company, at the Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(ix) if such sale is pursuant to an underwritten
offering, use its reasonable efforts to obtain a "cold comfort" letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters as Holders'
Counsel or the managing underwriter reasonably request;
(x) use its reasonable efforts to furnish, at the
request of any seller of Registrable Securities on the date such securities are
delivered to the underwriters for sale pursuant to such registration or, if such
securities are not being sold through underwriters, on the date the Registration
Statement with respect to such securities becomes effective, an opinion, dated
such date, of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to the seller making
such request, covering such legal matters with respect to the registration in
respect of which such opinion is being given as such seller may reasonably
request and are customarily included in such opinions;
(xi) otherwise use its reasonable efforts to comply
with all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable but no later than fifteen
(15) months after the effective date of the Registration Statement, an earnings
statement covering a period of twelve (12) months beginning after the effective
date of the Registration Statement, in a manner which satisfies the provisions
of Section 11(a) of the Act and Rule 158 thereunder;
(xii) cause all such Registrable Securities to be
listed on each securities exchange on which similar securities issued by the
Company are then listed, provided that the applicable listing requirements are
satisfied;
(xiii) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD; and
(xiv) use reasonable efforts to take all other steps
necessary to effect the registration of the Registrable Securities contemplated
hereby.
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(b) Seller Information. The Company may require each seller
of Registrable Securities as to which any registration is being effected to
furnish to the Company such information regarding the distribution of such
securities as the Company may from time to time reasonably request in writing.
(c) Notice to Discontinue. Each Designated Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 5(a)(vi), such
Designated Holder shall forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Designated Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5(a)(vi) and, if so
directed by the Company, such Designated Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Designated Holder's possession, of the prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this
Agreement (including, without limitation, the period referred to in Section
5(a)(ii)) by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 5(a)(vi) to and including the date
when the Designated Holder shall have received the copies of the supplemented or
amended prospectus contemplated by and meeting the requirements of Section
5(a)(vi).
(d) Registration Expenses. The Company shall pay all
expenses (other than as set forth in Section 3(b)) arising from or incident to
the performance of, or compliance with, this Agreement, including, without
limitation, (i) SEC, stock exchange and NASD registration and filing fees, (ii)
all fees and expenses incurred in complying with securities or "blue sky" laws
(including reasonable fees, charges and disbursements of counsel in connection
with "blue sky" qualifications of the Registrable Securities), (iii) all
printing, messenger and delivery expenses, (iv) the fees, charges and
disbursements of counsel to the Company and of its independent public
accountants and any other accounting and legal fees, charges and expenses
incurred by the Company (including, without limitation, any expenses arising
from any special audits incident to or required by any registration or
qualification) and (v) any liability insurance or other premiums for insurance
obtained in connection with any registration pursuant to the terms of this
Agreement, regardless of whether such Registration Statement is declared
effective. All of the expenses described in this Section 5(d) are referred to
herein as "Registration Expenses."
6. Indemnification; Contribution
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Designated Holder, its officers, directors, trustees, partners, members,
employees, advisors and agents and each Person who controls (within the meaning
of the Act or the Exchange Act) such Designated Holder from and against any and
all losses, claims, damages, liabilities and expenses, including reasonable
costs of investigation (generally, "Damages"), arising out of or based upon any
untrue, or allegedly untrue, statement of a material fact contained in any
Registration Statement, prospectus or preliminary prospectus or notification or
offering circular (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or arising out of or based
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upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information
concerning such Designated Holder furnished in writing to the Company by such
Designated Holder expressly for use therein. The Company shall also provide
customary indemnities to any underwriters of the Registrable Securities, their
officers, directors and employees and each Person who controls such underwriters
(within the meaning of the Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Designated Holders of
Registrable Securities.
(b) Indemnification by Designated Holders. In connection
with any Registration Statement in which a Designated Holder is participating
pursuant to Section 3 hereof, each such Designated Holder shall furnish to the
Company in writing such information with respect to such Designated Holder as
the Company may reasonably request or as may be required by law for use in
connection with any such Registration Statement or prospectus, and each
Designated Holder agrees to indemnify and hold harmless, to the fullest extent
permitted by law, the Company, any underwriter retained by the Company and their
respective directors, officers, employees and each Person who controls the
Company or such underwriter (within the meaning of the Act and the Exchange Act)
to the same extent as the foregoing indemnity from the Company to the Designated
Holders, but only with respect to any such information with respect to such
Designated Holder furnished in writing to the Company by such Designated Holder
expressly for use therein.
(c) Procedures. Any Person entitled to indemnification
hereunder (the "Indemnified Party") agrees to give prompt written notice to the
indemnifying party (the "Indemnifying Party") after the receipt by the
Indemnified Party of any written notice of the commencement of any action, suit,
proceeding or investigation or threat thereof made in writing for which the
Indemnified Party intends to claim indemnification or contribution pursuant to
this Agreement; provided, however, that the failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of any liability
that it may have to the Indemnified Party hereunder. If notice of commencement
of any such action is given to the Indemnifying Party as above provided, the
Indemnifying Party shall be entitled to participate in and, to the extent it may
wish, jointly with any other Indemnifying Party similarly notified, to assume
the defense of such action at its own expense, with counsel chosen by it and
satisfactory to such Indemnified Party. The Indemnified Party shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel (other than
reasonable costs of investigation) shall be paid by the Indemnified Party unless
(i) the Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party
fails to assume the defense of such action with counsel satisfactory to the
Indemnified Party in its reasonable judgment or (iii) the named parties to any
such action (including any impleaded parties) have been advised by such counsel
that either (x) representation of such Indemnified Party and the Indemnifying
Party by the same counsel would be inappropriate under applicable standards of
professional conduct or (y) there may be one or more legal defenses available to
it which are different from or additional to and in conflict with those
available to the Indemnifying Party and in such event, the Indemnifying Party
shall pay the fees and expenses of counsel to the Indemnified Party only to the
extent that such separate counsel is necessary under such applicable standards
of professional conduct in the case of the foregoing clause (x) or to the
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extent necessary to avoid any conflict in the case of the foregoing clause (y).
In either of such cases, the Indemnifying Party shall not have the right to
assume the defense of such action on behalf of such Indemnified Party. No
Indemnifying Party shall be liable for any settlement entered into without its
written consent, which consent shall not be unreasonably withheld.
(d) Contribution. If the indemnification provided for in
this Section 6 from the Indemnifying Party is unavailable to an Indemnified
Party hereunder in respect of any Damages referred to therein, then the
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount of Damages paid or payable by such Indemnified Party in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party and Indemnified Party in connection with the actions which
resulted in such Damages, as well as any other relevant equitable
considerations. The relative faults of such Indemnifying Party and Indemnified
Party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The parties
hereto agree that it would not be just and equitable if contribution pursuant to
this Section 6(d) were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to in this paragraph.
(e) Limitations. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to indemnification or contribution from any Person. Notwithstanding
anything to the contrary provided above, the total amount of Damages subject to
indemnification or contribution by any Designated Holder under this Section 6
shall not exceed the net proceeds received by such Designated Holder in the
offering to which the registration statement or prospectus relates.
7. Rule 144. From and after the IPO Effectiveness Date, the Company
covenants that it shall file any reports required to be filed by it under the
Exchange Act and that it shall take such further action as each Designated
Holder of Registrable Securities may reasonably request (including providing any
information necessary to comply with Rules 144 and 144A under the Act), all to
the extent required from time to time to enable such Designated Holder to sell
Registrable Securities without registration under the Act within the limitation
of the exemptions provided by (a) Rule 144 under the Act, as such rules may be
amended from time to time, or (b) any similar rules or regulations hereafter
adopted by the SEC. The Company shall, upon the request of any Designated Holder
of Registrable Securities, deliver to such Designated Holder a written statement
as to whether it has complied with such requirements.
8. Miscellaneous Recapitalizations, Exchanges, etc. The provisions
of this Agreement shall apply, to the full extent set forth herein with respect
to (i) the shares of Common Stock and (ii) to any and all equity securities of
the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets or otherwise) which may be issued in respect of,
in conversion of, in exchange for or in substitution of, the Common Stock, and
shall be appropriately
-10-
13
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by sale, merger or otherwise) to
enter into a new registration rights agreement with the Designated Holders on
terms substantially the same as this Agreement as a condition of any such
transaction.
(b) No Inconsistent Agreements. The Company shall not enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Designated Holders in this Agreement or grant any
additional registration rights to any Person or with respect to any securities
which are not Registrable Securities which are prior in right to or inconsistent
with the rights granted in this Agreement.
(c) Remedies. The Designated Holders, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
shall be entitled to specific performance of their rights under this Agreement.
The Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive in any action for specific performance the
defense that a remedy at law would be adequate.
(d) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by (i) the Company and (ii)
Designated Holders owning at least 75% of the Registrable Securities. Any such
written consent shall be binding upon the Company and all of the Designated
Holders.
(e) Notices. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested, courier
service, overnight mail or personal delivery as follows:
(i) if to the Company:
OptiMark Technologies, Inc.
000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxx, Xxxxxxxxxx & Xxxxx, P.C.
One Civic Center Plaza
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxxx, Esq.
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14
(ii) if to any Purchaser:
To the address of such Purchaser shown on
Schedule I hereto, or to any other address of
which a Purchaser may give notice to the Company
pursuant to this paragraph (e)
All such notices and communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; when delivered by courier
or overnight mail, if delivered by commercial courier service or overnight mail;
and five (5) Business Days after being deposited in the mail, postage prepaid,
if mailed.
(f) Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto. No Person other than the parties hereto
and their successors and permitted assigns is intended to be a beneficiary of
any of the rights granted hereunder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(j) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, it being
intended that all of the rights and privileges of the Designated Holders shall
be enforceable to the fullest extent permitted by law.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, in the Stockholders Agreement and in the Stock Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
-12-
15
(l) Further Assurances. Each of the parties shall execute
such documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Agreement on the date first written above.
COMPANY:
OPTIMARK TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Chief Executive Officer
PURCHASERS:
See attached signature pages
-13-
16
Signature Page
(to Registration Rights Agreement dated April 23, 1998)
Purchaser:
Virginia Surety Company, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Senior Vice President
The Xxxxxxx Sachs Group, L.P.
By: The Xxxxxxx Xxxxx Corporation,
its General Partner
By: /s/ J. Xxxxx Xxxxxx
Executive Vice President
Xxxxxxxxxx Family Partnership, L.P.
By: JAC Management LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Manager
OMK Partners, L.P.
By: JAC Management LLC,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxxx
Manager
/s/ Xxxxxx X. Xxxxxxxxxx
Greenwich Ventures, L.P.
By: Greenwich Ventures, L.L.C.,
its General Partner
By: /s/ Xxx Xxxxxx
Managing Partner
Vantage Ventures, C.V.
By: Greenwich Ventures, L.L.C.,
its General Partner
By: /s/ Xxx Xxxxxx
Managing Partner
Big Island, LLC
By: /s/ Xxxxx X. Xxxxxx
Manager
17
Everen Capital Corporation
By: /s/ Xxxxx X. Xxxxx
Chief Executive Officer
/s/ Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
Nihon Keizai Shimbun, Inc.
By: /s/ Xxxxx Xxxxxx
Executive Managing Director
QUICK Corp.
By: /s/
Senior Managing Director
JCB Venture Partnership IV
By: /s/ X.X. Xxxxxxxx Xx.
Commerce Partners I
By: /s/ X.X. Xxxxxxxx Xx.
/s/ Xxxxxxx X. Xxxxxx
Prairie Acorn Ventures, LLC
By: /s/
/s/ Xxxxxx X. Xxxxx
Xxxxx & Associates, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Chairman, Chief Executive Officer
Xxxxx Investment Group, LLC
By: /s/ Xxxxxxx X. Xxxxxx
President
BT Investment Partners, Inc.
By: /s/ Xxxxx Xxxxx
Managing Director
-2-
18
ML IBK Positions, Inc.
By: /s/ Xxxxx X. Xxxxxx
Vice President
Xxxxxxx Xxxxx KECALP L.P. 1997
By: KECALP, Inc., its General Partner
By: /s/ Xxxxxx X. Xxxxx
Vice President and Treasurer
Xxxxxxx Xxxxx KECALP International L.P. 1997
By: KECALP International, Inc.,
its General Partner
By: /s/ Xxxxxx X. Xxxxx
Treasurer
OptiMark Investors General Partnership
By: /s/ Xxxxx Xxxxxx
General Partner
Winslade Management Limited
By: /s/ Xxxxxxx Xxxxxxx
/s/ Xxxxx Blond
Credit Suisse First Boston OptiMark
Investors, Inc.
By: /s/
Managing Director
/s/ Xxxx X. Xxxxx
Xxxxx Xxxxxx Capital Inc.
By: /s/ Xxxxxxxxx Xxx
President
Xxxx Xxxxxxxx Xxxxxxx,
a Division of Xxxx Xxxxxxxx Incorporated
By: /s/
Chairman, President & Chief Executive Officer
/s/ Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx Xxxxxxxx-Xxxxxxx
-3-
19
Fremont Concentrated Equity Fund, LLC
By: /s/
Executive Vice President & Principal
Xxxx Capital Management LLC
Perth Capital, LLC
By: /s/
Orincon Technologies, Inc.
By: /s/ Xxxxxx X. X'Xxxx
Chief Financial Officer
Community Investment Partners III L.P., LLLP
By: /s/ Xxxxxx X. Xxxxxxxxx
Chairman, CIP Management, Inc.
First Union Investors, Inc.
By: /s/
Senior Vice President
J Partners
By: /s/ Xxxxxxx Xxxxxxx XX
Partner
X.X. Xxxxxxxx & Co., L.L.C.
By: /s/
Xxx and Xxxxx Xxxx Living Trust
UA DTD 5/3/95
By: /s/ Xxx Xxxx
Trustee
Xxxx Family Trust April 1, 1997
By: /s/ Xxxxx & Xxxxxxx Xxxx
Trustee
X.X. Xxxxxxxx & Co.
By: /s/ ___ X. Xxxxxxxx
Chairman
/s/ Xxxx X. Xxxxxx
-4-
20
Xxxxxxx Xxxxxx Xxxxx Inc.
By: /s/ X. X. Xxxxxx
President
Xxxxxxxxxx & Co. Inc.
By: /s/
Chairman and CEO
Xxxx Family Trust
By: /s/ Xxxxx Xxxx
Trustee
O'Neil Data Systems, Inc.
By: /s/
Chairman
Haven Capital Management Inc.
Profit Sharing Plan C
By: /s/ Xxxxx X. Xxxxx
Trustee
By:/s/ Xxxxxxx Xxx
Trustee
/s/ Xxxxxxx Xxx
/s/ Xxxxx X. Xxxxx
Xxxxxxxxx & Xxxxx
By: /s/
Chief Financial Officer
AGE Investments, Inc.
By: /s/ Xxxxxx X. Xxxxxx
Sole Director
Banc Boston Capital Inc.
By: /s/ Xxxx Xxxxxx Xxxxxx
Vice President
CIBC Wood Gundy Capital Corp.
By: /s/ Xxxx Xxxxx
Managing Director
-5-
21
Schedule I
(to Registration Rights Agreement dated April 23, 1998)
NUMBER OF
EFFECTIVE SHARES OF
CERT. DATE OF SERIES B STOCK
NO. NAME AND ADDRESS OF PURCHASER PURCHASE PURCHASED
----- ------------------------------------------ ----------- --------------
(First Closing:)
B-1 Virginia Surety Company, Inc. 4/23/98 2,000,000
000 Xxxxx Xxxxxx Xx., 00xx Xxxxx ---------
Xxxxxxx, XX 00000
TOTAL FIRST CLOSING: 2,000,000 $20,000,000
-----------------------------------------------------------------------------------------------
(Second Closing:)
B-2 The Xxxxxxx Sachs Group, L.P. 6/1/98 1,000,000
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
B-3 Greenwich Ventures, L.P. 6/1/98 74,550
0000 Xxxxx Xxxxxx, #000
Xxxxx Xxxxxxx, XX 00000
B-4 Vantage Ventures, C.V. 6/1/98 25,450
0000 Xxxxx Xxxxxx, #000
Xxxxx Xxxxxxx, XX 00000
B-5 Xxxxxxxxxx Family Partnership, L.P. 6/1/98 31,000
0 Xxxxx Xxxxxxxx Xxxxx, #0000
Xxxxxxx, XX 00000
B-6 OMK Partners, L.P. 6/1/98 247,800
0 Xxxxx Xxxxxxxx Xxxxx, #0000
Xxxxxxx, XX 00000
B-7 Xxxxxx Xxxxxxxxxx 6/1/98 52,000
0 Xxxxx Xxxxxxxx Xxxxx, #0000
Xxxxxxx, XX 00000
B-8 Big Island, LLC 6/1/98 180,000
0000 X. Xxxxxxxx Xxxxxx, Xxxxx #0
Xxxxxx, XX 00000
B-9 Everen Capital Corporation 6/1/98 250,000
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
22
NUMBER OF
EFFECTIVE SHARES OF
CERT. DATE OF SERIES B STOCK
NO. NAME AND ADDRESS OF PURCHASER PURCHASE PURCHASED
----- ------------------------------------------ ----------- --------------
B-10 Xxxxxxx X. Xxxxxx 6/1/98 40,000
00 Xxxxxxx
Xx. Xxxxx, XX 00000
B-11 Xxxxxx X. Xxxxxx 6/1/98 10,000
155 Thorntree ---------
Xxxxxxxx, XX 00000
TOTAL SECOND CLOSING: 1,910,800 $19,108,000
-----------------------------------------------------------------------------------------------
(Third Closing:)
B-12 Nihon Keizai Shimbun, Inc. 7/1/98 800,000
0-0-0 Xxxxxxxx
Xxxxxxx-xx
Xxxxx, XX 000-0000
Xxxxx
B-13 QUICK Corp. 7/1/98 200,000
000 Xxxxxxxx Xxxx. ---------
0-0-0 Xxxxxxxx
Xxxxxxx-xx
Xxxxx, XX 000
Xxxxx
TOTAL THIRD CLOSING: 1,000,000 $10,000,000
-----------------------------------------------------------------------------------------------
(Fourth Closing:)
B-14 JCB Venture Partnership IV 7/10/98 10,000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
B-15 Commerce Partners I 7/10/98 70,500
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
B-16 Xxxxxxx X. Xxxxxx 7/10/98 10,000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
B-17 Prarie Acorn Ventures, LLC 7/10/98 12,000
000 Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
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23
NUMBER OF
EFFECTIVE SHARES OF
CERT. DATE OF SERIES B STOCK
NO. NAME AND ADDRESS OF PURCHASER PURCHASE PURCHASED
----- ------------------------------------------ ----------- --------------
B-18 Xxxxxx X. Xxxxx 7/10/98 25,000
000 Xxxxx Xxxxxxx Xxxx
Xx. Xxxxx, XX 00000
B-19 Xxxxx & Associates, Inc. 7/10/98 150,000
00000 X. Xxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
B-20 Xxxxx Investment Group, LLC 7/10/98 100,000
00000 X. Xxxxxxx Xx., Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000
B-21 BT Investment Partners, Inc. 7/10/98 500,000
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
B-22 ML IBK Positions, Inc. 7/10/98 750,000
000 Xxxxx Xx., 0xx Xxxxx
Xxx Xxxx, XX 00000
B-23 Xxxxxxx Xxxxx KECALP L.P. 1997 7/10/98 562,500
000 Xxxxx Xx., 0xx Xxxxx
Xxx Xxxx, XX 00000
B-24 Xxxxxxx Xxxxx KECALP 7/10/98 187,500
International L.P. 1997
000 Xxxxx Xx., 0xx Xxxxx
Xxx Xxxx, XX 00000
B-25 OptiMark Investors 7/10/98 66,000
General Partnership ---------
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
TOTAL FOURTH CLOSING: 2,443,500 $24,435,000
-----------------------------------------------------------------------------------------------
(Fifth Closing:)
B-26 Winslade Management Limited 8/5/98 10,000
X.X. Xxx 000
Celtic House
Victoria Street
Xxxxxxx, Isle of Man
IM99 1QZ
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24
NUMBER OF
EFFECTIVE SHARES OF
CERT. DATE OF SERIES B STOCK
NO. NAME AND ADDRESS OF PURCHASER PURCHASE PURCHASED
----- ------------------------------------------ ----------- --------------
B-27 Xxxxx Blond 8/5/98 50,000
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
B-28 Credit Suisse First Boston 8/5/98 1,000,000
OptiMark Investors, Inc.
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
B-29 Xxxx X. Xxxxx 8/5/98 30,000
00 Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
B-30 Xxxxx Xxxxxx Capital, Inc. 8/5/98 1,060,000
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
X-00 Xxxx Xxxxxxxx Xxxxxxx, a 8/5/98 100,000
Division of Xxxx Xxxxxxxx
Incorporated
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
B-32 Xxxxxx X. Xxxxxxx and/or Xxxxxxx 8/5/98 10,000
Xxxxxxxx-Xxxxxxx
c/o American Century Investments
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
B-33 Fremont Concentrated 8/5/98 50,000
Equity Fund
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
B-34 Perth Capital, LLC 8/5/98 25,000
000 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
B-35 Orincon Technologies, Inc. 8/5/98 10,000
0000 Xxxxx Xxxxxx Xxxxx ---------
Xxx Xxxxx, XX 00000
TOTAL FIFTH CLOSING: 2,345,000 $23,450,000
-----------------------------------------------------------------------------------------------
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25
NUMBER OF
EFFECTIVE SHARES OF
CERT. DATE OF SERIES B STOCK
NO. NAME AND ADDRESS OF PURCHASER PURCHASE PURCHASED
----- ------------------------------------------ ----------- --------------
(Sixth Closing:)
B-36 Community Investment Partners 9/22/98 10,000
III L.P., LLLP 00000 Xxxxxxxxxx Xx.
Xx. Xxxxx, XX 00000
B-37 First Union Investors, Inc. 9/22/98 125,000
0 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
B-38 J Partners 9/22/98 15,000
c/o Xxxxxxx Xxxxxxx XX
000 X. 00xx Xxxxxx, Xxxxx 00X
Xxx Xxxx, XX 00000
X-00 X.X. Xxxxxxxx & Xx., X.X.X. 9/22/98 25,000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
B-40 Xxx and Xxxxx Xxxx Living Trust 9/22/98 10,000
UA DTD 5/3/95
000 Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
B-41 Xxxx Family Trust Apr. 1 1997 9/22/98 5,000
000 Xxxxxxxx Xxxx., 00xx Xxxxx
Xxxxx Xxxxxx, XX 00000
B-42 X.X. Xxxxxxxx & Co. 9/22/98 10,000
X.X. Xxx 0000
Xxxxxxxx Xxxxxxxx
Xxxxx Xxxxx, XX 00000
B-43 Xxxx X. Xxxxxx 9/22/98 5,000
Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
B-44 Xxxxxxx Xxxxxx Xxxxx Inc. 9/22/98 25,000
3100 Chase Tower
000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
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26
NUMBER OF
EFFECTIVE SHARES OF
CERT. DATE OF SERIES B STOCK
NO. NAME AND ADDRESS OF PURCHASER PURCHASE PURCHASED
----- ------------------------------------------ ----------- --------------
B-45 Xxxxxxxxxx & Co. Inc. 9/22/98 15,000
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
ATTN: Xxxxxx X. Xxxxxxxxx
B-46 Xxxx Family Trust 9/22/98 15,700
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
B-47 O'Neil Data Systems, Inc. 9/22/98 20,000
00000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
B-48 Haven Capital Management Inc. 9/22/98 15,000
Profit Sharing Plan C
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
B-49 Xxxxx Xxx 9/22/98 2,500
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
B-50 Xxxxx X. Xxxxx 9/22/98 2,500
000 Xxxxx Xxxxxx ---------
Xxx Xxxx, XX 00000
TOTAL SIXTH CLOSING: 300,700 $3,007,000
-----------------------------------------------------------------------------------------------
(Seventh Closing:)
X-00 Xxxxxxxxx & Xxxxx Xxxxxxxxxx 10/13/98 25,000
Xxx Xxxx Xxxxxx ---------
Xxx Xxxxxxxxx, XX 00000
TOTAL SEVENTH CLOSING: 25,000 $250,000
-----------------------------------------------------------------------------------------------
(Eighth Closing:)
B-52 AGE Investments, Inc. 11/4/98 50,000
Xxx Xxxxx Xxxxxxxxx Xxxxxx ---------
Xx Xxxxx, XX 00000
TOTAL EIGHTH CLOSING: 50,000 $500,000
-----------------------------------------------------------------------------------------------
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27
NUMBER OF
EFFECTIVE SHARES OF
CERT. DATE OF SERIES B STOCK
NO. NAME AND ADDRESS OF PURCHASER PURCHASE PURCHASED
----- ------------------------------------------ ----------- --------------
(Ninth Closing:)
B-53 BancBoston Capital Inc. 12/3/98 75,000
000 Xxxxxxx Xxxxxx, 00xx Xxxxx ---------
Xxxxxx, XX 00000
TOTAL NINTH CLOSING: 75,000 $750,000
-----------------------------------------------------------------------------------------------
(Tenth Closing)
B-54 CIBC Wood Gundy Capital Corp. 12/22/98 850,000 $8,500,000
000 Xxxxxxxxx Xxxxxx ---------
Xxx Xxxx, XX 00000
TOTAL TENTH CLOSING: 850,000 $8,500,000
-----------------------------------------------------------------------------------------------
Summary
-------
Closing Shares $
--------------- ---------------- ---------------
1 2,000,000 $ 20,000,000
2 1,910,800 $ 19,108,000
3 1,000,000 $ 10,000,000
4 2,443,500 $ 24,435,000
5 2,345,000 $ 23,450,000
6 300,700 $ 3,007,000
7 25,000 $ 250,000
8 50,000 $ 500,000
9 75,000 $ 750,000
---------- ------------
10 850,000 $ 8,500,000
---------- ------------
Totals: 11,000,000 $110,000,000
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