REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 27, 2000, between Vizacom
Inc., a Delaware corporation (the "Company"), and each of the stockholders of
the Company set forth on the signature page hereto (the "Stockholders").
WHEREAS, this Agreement has been entered into in connection with an
Agreement and Plan of Merger, dated as of February 28, 2000 (the "Merger
Agreement"), among the Company, PWR Acquisition Corp., a Delaware corporation,
and PC Workstation Rentals, Inc. d/b/a PWR Systems, Inc., a New York
corporation, and the Stockholders.
NOW, THEREFORE, it is agreed as follows:
1. Defined Terms. Each of the following terms shall have the following
meanings (such definitions to be applicable to both the plural and singular of
the terms defined):
(a) Registerable Securities. The term "Registerable Securities"
shall mean any of the shares of Common Stock, par value $.001 per share, of
the Company ("Common Stock") received by the Stockholders pursuant to the
Merger Agreement whether on the Closing Date or thereafter and upon
conversion of the convertible notes issued pursuant to the Merger Agreement
and other securities received in connection with any stock split, stock
dividend, merger, reorganization, recapitalization, reclassification or
other distribution payable or issuable upon such shares of Common Stock.
For the purposes of this Agreement, securities will cease to be
Registerable Securities when (A) a registration statement under the
Securities Act of 1933, as amended (the "Securities Act"), covering such
Registerable Securities has been declared effective by the Securities and
Exchange Commission and such registration statement has been continuously
effective for a period of nine (9) months after the expiration of the
period specified in section 2(b) of the Lock-up Agreements of even date
herewith between the Company and each of Stockholders, (B) such
Registerable Securities are distributed to the public pursuant to the
Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act, including, but not limited to, Rules
144 and 144A promulgated under the Securities Act, or (C) such Registerable
Securities have been otherwise transferred and the Company, in accordance
with applicable law and regulations, has delivered new certificates or
other evidences of ownership for such securities which are not subject to
any stop transfer order or other restriction on transfer.
(b) Rightsholders. The term "Rightsholders" shall include the
Stockholders, all successors and assigns of the Stockholders, and all
transferees of Registerable Securities where such transfer affirmatively
includes the transfer and assignment of the
rights of the transferor Rightsholder under this Agreement with respect
to the transferred Registerable Securities.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and
subsection, paragraph, clause, schedule and exhibit references are to this
Agreement unless otherwise specified.
(d) Capitalized terms used herein but not otherwise defined shall
have the meanings given to them in the Merger Agreement.
2. Registration Rights.
(a) Demand Registration.
(i) Right to Demand. Subject to Paragraph 2(a)(ii) hereof, at any
time on or after the Closing Date and on or prior to four years from the
Closing Date, the Initiating Holders (as defined in paragraph 2(a)(vi)
below) may make a written request (each, a "Demand Request") to the Company
for registration under the Securities Act of all or part of their
Registerable Securities (each, a "Demand Registration"). Within ten days
after receipt of a Demand Request, the Company shall deliver a written
notice (the "Notice") of such Demand Request to all other Rightsholders,
and subject to the limitations of this Section 2, use its commercially
reasonable best efforts to effect, as soon as practicable, the registration
under the Securities Act of all Registerable Securities that the
Rightsholders request to be registered in a written request ("Tag-Along
Request") received by the Company. Each and every Demand Request shall be
required to specify the aggregate amount of the Registerable Securities to
be included in such Demand Registration, the amount of Registerable
Securities to be registered for each of the Initiating Holders and the
intended method(s) of disposition thereof, including whether or not such
Demand Registration or portion thereof is to relate to an underwritten
offering, the name of the managing underwriter(s), if any, and the terms of
any such underwriting. Each and every Tag-Along Request shall be required
to specify the amount of Registerable Securities to be registered in the
Demand Registration and the intended method(s) of disposition thereof,
including whether or not the Registerable Securities subject to such
Tag-Along Request or portion thereof is to relate to an underwritten
offering, the name of the managing underwriter(s), if any, and the terms of
any such underwriting.
(ii) Number of Demand Registrations; Expenses. Subject to the
provisions of Paragraph 2(a)(iii) hereof, the holders of Registerable
Securities shall be entitled, in the aggregate, to one Demand Registration,
the Registration Expenses (as defined in Section 4 hereof) of which,
subject to the provisions of Section 4, shall be borne by the Company, but
the Company shall not be responsible for the payment of any underwriter's
discount,
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commission or selling concession in connection with the sale of
any of the Registerable Securities. The Company shall not be deemed to
have effected a Demand Registration unless and until such Demand
Registration is declared effective.
(iii) Priority on Demand Registrations.
(A) Whenever the Company shall effect a Demand
Registration in connection with an underwritten offering by one or
more Initiating Holders, no other securities including other
Registerable Securities, shall be included in such Demand
Registration, including other Securities, Registerable unless (1) the
managing underwriter(s) with respect to such Demand Registration shall
have advised the Company and each Initiating Holder whose Registerable
Securities were included in the Demand Request, in writing, that the
inclusion of such other securities would not adversely affect such
underwritten offering or (2) each of the Initiating Holders shall each
have consented in writing to the inclusion of such other securities.
In the event of such written advice of the managing underwriter(s) or
unanimous consent of such Initiating Holders, the Company will include
in such Demand Registration securities in the following order of
priority until the maximum number of securities included in the
written advice of the managing underwriter(s) or unanimous consent of
such Initiating Holders shall be reached: (1) first, pro rata on an
aggregate basis (based upon the amount of Registerable Securities)
among the Registerable Securities included in the Demand Request which
are subject to the underwritten offering and the Registerable
Securities of other Rightsholder who have given a Tag-Along Request
with respect to such Demand Registration where the method of
distribution shall be pursuant to an underwritten offering, and (2)
second, pro rata (based upon the amount of securities owned which
carry registration rights) among all other securities to which the
Company has granted registration rights and for which a request for
inclusion in the Demand Registration shall have been made.
(B) Whenever the Company shall effect a Demand
Registration in connection with an offering of Registerable Securities
of Initiating Holders for which the intended method(s) of distribution
shall not include an underwritten offering, and the holders of a
majority of the Registerable Securities which were subject to the
Demand Request shall advise the Company in writing that, in the
opinion of such Initiating Holders, the number of securities proposed
to be sold in such Demand Registration would adversely affect such
offering, and the Board of Directors of the Company concurs with such
conclusion, the Company will include in such Demand Registration
securities in the following order of priority until the maximum number
of securities included in the written advice of such Initiating
Holders shall be reached: (1) first, pro rata on an aggregate basis
(based upon the amount of Registerable Securities) among the
Registerable Securities
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included in the Demand Request, (2) second, pro rata (based upon the
amount of Registerable Securities the Registerable Securities of the
other Rightsholders who have given a Tag-Along Request with respect
to such Demand Registration, and (3) third, pro rata (based upon the
amount of securities owned which carry registration rights) among
all other securities to which the Company has granted registration
rights and for which a request for inclusion in the Demand
Registration shall have been made.
(C) In the event that Initiating Holders and other
holders of registration rights granted by the Company in connection
with the Merger Agreement who have given a Tag-Along Request are
unable to have registered the full amount of Registerable Securities
which they requested to be registered pursuant to a Demand Request or
Tag-Along Request, pursuant to the provisions of Section 4(a)(iii)(B),
such Initiating Holders and other Rightsholders shall retain the right
to one Demand Registration with respect to such unregistered
Registerable Securities subject to such Demand Request and Tag-Along
Request.
(iv) Delay in Effecting Demand Registration. Notwithstanding
anything in the foregoing to the contrary, the Company shall not be
obligated to effect a Demand Registration at any time when the Company, in
the good faith judgment of its Board of Directors made no later than 30
days after the giving of the Demand Request with respect to such Demand
Registration, reasonably believes that the filing thereof at the time
requested, or the offering of securities pursuant thereto, would be
materially detrimental to the interests of Company or its stockholders. The
effectuation of a Demand Registration cannot be suspended, pursuant to the
provisions of the preceding sentence, on more than one occasion in any
twelve-month period or for more than 120 days after the date of the Board's
determination referenced in the preceding sentence.
(v) Approval of Underwriter by the Company and Placement Agent.
If the Demand Registration is to involve an underwritten offering, the
managing underwriter(s) and each selling agent selected by those
Rightsholders participating in each such underwritten offering shall be
subject to the written approval of the Company, which approval may not be
unreasonably withheld.
(vi) "Initiating Holders" Defined. For purposes of this
Agreement, the term "Initiating Holders" shall mean, on any given date,
those Rightsholders holding Registerable Securities which would aggregate
50% or more of the total Registerable Securities that would be outstanding
on such date.
(b) Piggy-Back Registration.
(i) Right to Piggy-Back Registration. If at any time on or after
the Closing Date and on or prior to four years from the Closing Date, the
Company proposes to file a
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registration statement under the Securities Act with respect to an offering
by the Company or any other party of any class of equity security similar to any
Registerable Securities (other than a registration statement on Form S-4 or S-8
or any successor form or a registration statement filed solely in connection
with an exchange offer, a business combination transaction or an offering of
securities solely to the existing stockholders or employees of the Company),
then the Company, on each such occasion, shall give written notice (each, a
"Company Piggy-Back Notice") of such proposed filing to all of the Rightsholders
owning Registerable Securities at least 20 days before the anticipated filing
date of such registration statement, and such Company Piggy-Back Notice also
shall be required to offer to such Rightsholders the opportunity to register
such aggregate number of Registerable Securities as each such Rightsholder may
request. Each such Rightsholder shall have the right, exercisable for the 10
days immediately following the giving of the Company Piggy-Back Notice, to
request, by written notice (each, a "Holder Notice") to the Company, the
inclusion of all or any portion of the Registerable Securities of such
Rightsholders in such registration statement. The Company shall use reasonable
efforts to cause the managing underwriter(s) of a proposed underwritten offering
to permit the inclusion of the Registerable Securities which were the subject of
all Holder Notices in such underwritten offering on the same terms and
conditions as any similar securities of the Company included therein.
Notwithstanding anything to the contrary contained in this Paragraph 2(b), if
the managing underwriter(s) of such underwritten offering or any proposed
underwritten offering delivers a written opinion to the Rightsholders of
Registerable Securities which were the subject of all Holder Notices that the
total amount and kind of securities which they, the Company and any other person
intend to include in such offering is such as to materially and adversely affect
the success of such offering, then the amount of securities to be offered for
the accounts of such Rightsholders and persons other than the Company shall be
eliminated or reduced pro rata (based on the amount of securities owned by such
Rightsholders and other persons which carry registration rights) to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount recommended by such managing underwriter(s) in its
written opinion.
(ii) Number of Piggy-Back Registrations; Expenses. The
obligations of the Company under this Section 2 shall be unlimited with
respect to each Rightsholder. Subject to the provisions of Section 4
hereof, the Company will pay all Registration Expenses in connection with
any registration of Registerable Securities effected pursuant to this
Section 2, but the Company shall not be responsible for the payment of any
underwriter's discount, commission or selling concession in connection
therewith.
(iii) Withdrawal or Suspension of Registration Statement.
Notwithstanding anything contained to the contrary in this Section 2(b),
the Company shall have the absolute right, whether before or after the
giving of a Company Piggy-Back Notice or Holder Notice, to determine not to
file a registration statement to which the Rightsholders shall have the
right to include their Registerable Securities therein pursuant to this
Section 2(b), to withdraw such registration statement or to delay or
suspend pursuing the effectiveness of such registration statement. In the
event of such a determination after the giving of a Company Piggy-Back
Notice, the Company shall give notice of such
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determination to all Rightsholders and, thereupon, (i) in the case of a
determination not to register or to withdraw such registration statement,
the Company shall be relieved of its obligation under this Section 2 to
register any of the Registerable Securities in connection with such
registration and (ii) in the case of a determination to delay the
registration, the Company shall be permitted to delay or suspend the
registration of Registerable Securities pursuant to this Section 2 for the
same period as the delay in the registration of such other securities. No
registration effected under this Section 2(b) shall relieve the Company of
its obligation to effect any registration upon demand otherwise granted to
a Rightsholder under any other agreement with the Company.
3. Registration Procedures.
(a) Obligations of the Company. The Company will, in connection
with any registration pursuant to Section 2 hereof, as expeditiously as
possible:
(i) prepare and file with the Commission a registration
statement under the Securities Act on any appropriate form chosen by
the Company, in its sole discretion, which shall be available for the
sale of all Registerable Securities to be included for sale in
accordance with the intended method(s) of distribution thereof set
forth in all applicable Holder Notices, and use its commercially
reasonable best efforts to cause such registration statement to become
effective as soon thereafter as reasonably practicable but in no event
more than 100 days after receipt of such notices or requests;
provided, that, (A) after such filing, the Company shall, as
diligently as practicable, provide to each such Rightsholders such
number of copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus), all exhibits
thereto and documents incorporated by reference therein and such other
documents as such Rightsholder may reasonably request in order to
facilitate the disposition of the Registerable Securities owned by
such Rightsholder and included in such registration statement; (B) the
Company shall modify or amend the registration statement as it relates
to such Rightsholder as reasonably requested by such Rightsholder on a
timely basis, and shall reasonably consider other changes to the
registration statement (but not including any exhibit or document
incorporated therein by reference) reasonably requested by such
Rightsholder on a timely basis, in light of the requirements of the
Securities Act and any other applicable laws and regulations; and (C)
that the obligation of the Company to effect such registration and/or
cause such registration statement to become effective, may be
postponed for (x) such period of time when the financial statements of
the Company required to be included in such registration statement are
not available (due solely to the fact that such financial statements
have not been prepared in the regular course of business of the
Company) or (y) any other bona fide corporate purpose, but then only
for a period not to exceed 120 days;
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(ii) prepare and file with the Commission such amendments
and post-effective amendments to a registration statement
as may be necessary to keep such registration statement effective for
up to nine months; and cause the related prospectus to be supplemented
by any required prospectus supplement, and as so supplemented to be
filed to the extent required pursuant to Rule 424 promulgated under
the Securities Act, during such nine-month period; and otherwise
comply with the provisions of the Securities Act with respect to the
disposition of all Registerable Securities covered by such
registration statement during the applicable period in accordance with
the intended method(s) of disposition of such Registerable Securities
set forth in such registration statement, prospectus or supplement to
such prospectus;
(iii) notify the Rightsholders whose Registerable
Securities are included in such registration statement and the
managing underwriter(s), if any, of an underwritten offering of any of
the Registerable Securities included in such registration statement,
and confirm such advice in writing, (A) when a prospectus or any
prospectus supplement or post-effective amendment has been filed, and,
with respect to a registration statement or any post-effective
amendment, when the same has become effective, (B) of any request by
the Commission for amendments or supplements to a registration
statement or related prospectus or for additional information, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of a registration statement or the initiation of any
proceedings for that purpose, (D) if at any time the representations
and warranties of the Company contemplated by clause (A) of Paragraph
3(a)(x) hereof cease to be true and correct, (E) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of any of the Registerable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose and (F) of the happening of any event which makes any
statement made in the registration statement, the prospectus or any
document incorporated therein by reference untrue or which requires
the making of any changes in the registration statement or prospectus
so that such registration statement, prospectus or document
incorporated by reference will not contain any untrue statement of
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(iv) make reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement at the earliest possible moment and to prevent the entry of
such an order;
(v) use reasonable efforts to register or qualify the
Registerable Securities included in such registration statement under
such other securities or blue sky laws of such jurisdictions as any
Rightsholder whose Registerable Securities are included in such
registration statement reasonably requests in
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writing and do any and all other acts and things which may be
necessary or advisable to enable such Rightsholder to consummate the
disposition in such jurisdictions of such Registerable Securities;
provided, that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Paragraph 3(a)(v),
(B) subject itself to taxation in any such jurisdiction or (C) take
any action which would subject it to general service of process in
any such jurisdiction;
(vi) cooperate with the Rightsholder whose Registerable
Securities are included in such registration statement and the
managing underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Registerable Securities to
be sold thereunder, not bearing any restrictive legends, and enable
such Registerable Securities to be in such denominations and
registered in such names as such Rightsholder or any managing
underwriter(s) may reasonably request at least two business days prior
to any sale of Registerable Securities;
(vii) comply with all applicable rules and regulations
of the Commission and promptly make generally available to its
security holders an earnings statement covering a period of twelve
months commencing, (A) in an underwritten offering, at the end of any
fiscal quarter in which Registerable Securities are sold to
underwriter(s), or (B) in a non-underwritten offering, with the first
month of the Company's first fiscal quarter beginning after the
effective date of such registration statement, which earnings
statement in each case shall satisfy the provisions of Section 11(a)
of the Securities Act;
(viii) enter into such customary agreements (including
an underwriting agreement in customary form) and take all such other
actions reasonably requested by the Rightsholders holding a majority
of the Registerable Securities included in such registration statement
or the managing underwriter(s) in order to expedite and facilitate the
disposition of such Registerable Securities and in such connection,
whether or not an underwriting agreement is entered into and whether
or not the registration is an underwritten registration, (A) make such
representations and warranties, if any, to any underwriter(s) with
respect to the registration statement, prospectus and documents
incorporated by reference, if any, in form, substance and scope as are
customarily made by issuers to underwriter(s) in underwritten
offerings and confirm the same if and when requested, (B) obtain
opinions of counsel to the Company and updates thereof addressed to
each such underwriter(s), if any, with respect to the registration
statement, prospectus and documents incorporated by reference, if any,
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Rightsholders and underwriter(s), (C) obtain a "cold
comfort" letter and updates thereof from the
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Company's independent certified public accountants addressed to the
underwriter(s), if any, which letters shall be in customary form and
cover matters of the type customarily covered in "cold comfort"
letters by accountants in connection with underwritten offerings, and
(D) deliver such documents and certificates as may be reasonably
requested by the managing underwriter(s), if any, to evidence
compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company;
each such action required by this Paragraph 3(a)(x) shall be done at
each closing under such underwriting or similar agreement or as and
to the extent required thereunder; and
(ix) if requested by the holders of a majority of the
Registerable Securities included in such registration statement, use
its commercially reasonable best efforts to cause all Registerable
Securities which are included in such registration statement to be
listed, subject to notice of issuance, by the date of the first sale
of such Registerable Securities pursuant to such registration
statement, on each securities exchange, if any, on which securities
similar to the Registered Securities are listed.
(b) Obligations of Rightsholders. In connection with any
registration of Registerable Securities of a Rightsholder pursuant to
Section 2 hereof:
(i) The Company may require that each Rightsholder
whose Registerable Securities are included in such registration
statement furnish to the Company such information regarding the
distribution of such Registerable Securities and such Rightsholder as
the Company may from time to time reasonably request in writing; and
(ii) Each Rightsholder, upon receipt of any notice from
the Company of the happening of any event of the kind described in
clauses (B), (C), (E) and (F) of Paragraph 3(a)(iii) hereof, shall
forthwith discontinue disposition of Registerable Securities pursuant
to the registration statement covering such Registerable Securities
until such Rightsholder's receipt of the copies of the supplemented or
amended prospectus contemplated by clause (A) of Paragraph 3(a)(iii)
hereof, or until such Rightsholder is advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may
be resumed, and until such Rightsholder has received copies of any
additional or supplemental filings which are incorporated by reference
in or to be attached to or included with such prospectus, and, if so
directed by the Company, such Rightsholder will deliver to the Company
(at the expense of the Company) all copies, other than permanent file
copies then in the possession of such Rightsholder, of the current
prospectus covering such Registerable Securities at the time of
receipt of such notice; the Company shall have the right to demand
that such Rightsholder or other holder
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verify its agreement to the provisions of this Paragraph 3(b)(ii) in
any Holder Notice of the Rightsholder or in a separate document
executed by the Rightsholder.
4. Registration Expenses. All expenses incident to the performance of or
compliance with this Agreement by the Company, including, without imitation, all
registration and filing fees of the Commission, National Association of
Securities Dealers, Inc. and other agencies, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registerable
Securities), rating agency fees, printing expenses, messenger and delivery
expenses, internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the fees and expenses incurred in connection with the listing, if any, of the
Registerable Securities on any securities exchange and fees and disbursements of
counsel for the Company and the Company's independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incidental to such performance), Securities Act or other
liability insurance (if the Company elects to obtain such insurance), the fees
and expenses of any special experts retained by the Company in connection with
such registration and the fees and expenses of any other person retained by the
Company (but not including any underwriting discounts or commissions
attributable to the sale of Registerable Securities or other out-of-pocket
expenses of the Rightsholders, or the agents who act on their behalf, unless
reimbursement is specifically approved by the Company) will be borne by the
Company. All such expenses are herein referred to as "Registration Expenses."
5. Indemnification: Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each
Rightsholder, its officers and directors, and its legal counsel
accountants, and underwriters, and each person who controls such
Rightsholder (within the meaning of the Securities Act), if any, and any
agent thereof against all losses, claims, damages, liabilities and expenses
(including reasonable attorney's fees and expenses of investigation)
incurred by such party pursuant to any actual or threatened suit, action,
proceeding or investigation to which they may be subject under the
Securities Act or any other federal or any state securities laws, arising
out of or are based upon (i) any untrue or alleged untrue statement of a
material fact contained in any registration statement, prospectus or
preliminary prospectus, (ii) any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading, except insofar as
the same arise out of or are based upon, any such untrue statement or
omission based upon information with respect to such Rightsholder furnished
in writing to the Company by such Rightsholder expressly for use therein or
(iii) any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any state securities laws or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state
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securities laws relating to the Registration Statement.
(b) Indemnification by Rightsholder. In connection with any
registration statement in which a Rightsholder is participating, each such
Rightsholder will be required to furnish to the Company in writing such
information with respect to such Rightsholder as the Company reasonably
requests for use in connection with any such registration statement or
prospectus, and each Rightsholder agrees to the extent it is such a holder
of Registerable Securities included in such registration statement, and
each other such holder of Registerable Securities included in such
Registration Statement will be required to agree, to indemnify, to the full
extent permitted by law, the Company, the directors and officers of the
Company and each person who controls the Company (within the meaning of the
Securities Act) any agent thereof, its legal counsel, accountants and
underwriters, against any losses, claims, damages, liabilities and expenses
(including reasonable attorney's fees and expenses of investigation)
incurred by such party pursuant to any actual or threatened suit, action,
proceeding or investigation to which they may be subject under the
Securities Act or any other federal or any state securities laws, arising
out of or based upon (i) any untrue or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact
necessary, to make the statements contained in any registration statement,
prospectus, or preliminary prospectus (in the case of a prospectus, in the
light of the circumstances under which they are made) not misleading, to
the extent, but only to the extent, that such untrue statement or omission
is based upon information relating to such Rightsholder or other holder
furnished in writing to the Company expressly for use therein or (ii) any
violation or alleged violation by such Rightsholder of the Securities Act,
the Exchange Act, any state securities laws or any rule or regulation
promulgated under the Securities Act, the Exchange Act or any state
securities laws relating to the Registration Statement.
(c) Conduct of Indemnification Proceedings. Promptly after
receipt by an indemnified party under this Section 5 of written notice of
the commencement of any action, proceeding, suit or investigation or threat
thereof made in writing for which such indemnified party may claim
indemnification or contribution pursuant to this Agreement, such
indemnified party shall notify in writing the indemnifying party of such
commencement or threat; but the omission so to notify the indemnifying
party shall not relieve the indemnifying party from any liability which the
indemnifying party may have to any indemnified party (i) hereunder, unless
the indemnifying party is actually prejudiced thereby, or (ii) otherwise
than under this Section 5. In case any such action, suit or proceeding
shall be brought against any indemnified party, and the indemnified party
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein and the
indemnifying party shall assume the defense thereof, with counsel
reasonably satisfactory to the indemnified party, and the obligation to pay
all expenses relating thereto. The indemnified party shall have the right
to employ separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such
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indemnified party unless (i) the indemnifying party has agreed to pay such
fees and expenses, (ii) the indemnifying party shall have failed to assume
the defense of such action, suit or proceeding or to employ counsel
reasonably satisfactory to the indemnified party therein or to pay all
expenses relating thereto or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include both the indemnified
party and the indemnifying party and the indemnified party shall have been
advised by counsel that there may be one or more legal defenses available
to the indemnified party which are different from or additional to those
available to the indemnifying party and which may result in a conflict
between the indemnifying party and such indemnified party (in which case,
if the indemnified party notifies the indemnifying party in writing that
the indemnified party elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right
to assume the defense of such action or proceeding on behalf of the
indemnified party; it being understood, however, that the indemnifying
party shall not, in connection with any one such action, suit or proceeding
or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys at any time for all indemnified
parties, which firm shall be designated in writing by the indemnified
party).
(d) Contribution. If the indemnification provided for in this
Section 5 from the indemnifying party is unavailable to an indemnified
party hereunder in respect of any losses, claims, damages, liabilities or
expenses referred to therein, then the 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 (i) in such proportion as is appropriate
to reflect the relative benefits received by the indemnifying party on the
one hand and the indemnified party on the other or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
received by the indemnifying party on the one hand and the indemnified
party on the other but also the relative fault of the indemnifying party
and indemnified party, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and the
indemnified parties 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 parties, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the losses, claims, damages. liabilities and expenses referred to
above shall be deemed to include, subject to the limitation set forth in
Section 5(e), any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Paragraph 5(d) were determined by pro rata
allocation or by any other
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method of allocation which does not take into account the equitable
considerations referred to in clauses (i) and (ii) of the immediately
preceding paragraph. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(e) Limitation. Anything to the contrary contained in this
Section 5(e) or in Section 6 notwithstanding, no holder of Registerable
Securities shall be liable for indemnification and contribution payments
aggregating an amount in excess of the maximum amount received by such
holder in connection with any sale of Registerable Securities as
contemplated herein.
(f) Survival. The obligations of the Company and the
Rightsholders under this Section 5 shall survive the completion of any
offering of Registerable Securities in a registration statement under this
Agreement.
6. Reports Under the Exchange Act of 1934. With a view to making available
to Rightsholders the benefits of Rule 144 promulgated under the Securities Act
or any other rule or regulation of the Commission that may at any time permit a
Rightsholder to sell securities of the Company to the public without
registration, the Company agrees to furnish to any Rightsholder, so long as the
Rightsholder owns any Registerable Securities, forthwith upon request (i) a
written statement by the Company that it has complied, if true, with the
reporting requirements of Commission Rule 144, the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company, and (iii)
such other information as may be reasonably requested by any Rightsholder in
connection with any rule or regulation of the Commission that permits the
selling of any Registerable Securities without registration or pursuant to such
form. The Company agrees to use its best efforts to timely comply with the
reporting requirements set forth in Commission Rule 144(c)(1), the Securities
Act and the Exchange Act.
7. Participation in Underwritten Registration. No Rightsholder may
participate in any underwritten registration hereunder unless such Rightsholder
(i) agrees to sell such Rightsholder's securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and to comply with Regulation M under the Exchange Act and
(ii) completes and executes all questionnaires, appropriate and limited powers
of attorney, escrow agreements, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangement;
provided, that all such documents shall be consistent with the provisions of
Section 3 hereof.
8. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
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9. Entire Agreement. This Agreement and the documents and instruments and
other agreements among the parties hereto as contemplated by or referred to
herein, (a) constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof and (b) are not intended to confer upon any other person any rights or
remedies hereunder, except as set forth herein.
10. Severability. In the event that any provision of this Agreement or the
application thereof becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
Each of the parties hereto irrevocably consents to the exclusive jurisdiction of
any state or federal court within the State of New York, in connection with any
matter based upon or arising out of this Agreement or the matters contemplated
herein, agrees that process may be served upon them in any manner authorized by
the laws of the State of New York for such persons and waives and covenants not
to assert or plead any objection which they might otherwise have to such
jurisdiction and such process.
12. Assignment. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other parties. Notwithstanding the foregoing, the rights to cause the
Company to register Registerable Securities pursuant to Section 2 may be
assigned (but only with all related obligations) by a Rightsholder to a
transferee or assignee of such securities that (i) is a subsidiary, parent,
partner, limited partner, retired partner or stockholder of a Rightsholder, (ii)
is a Rightsholder's spouse or member of such Rightsholder's immediate family, or
a custodian, trustee (including a trustee of a voting trust), executor or other
fiduciary for the account of the Rightsholder's spouse or members of the
Rightsholder's immediate family, a trust for the Rightsholder's own self, a
charitable remainder trust or an entity that is controlled by one or more of the
Rightsholder's immediate family, or (iii) after such assignment or transfer,
holds at least 250,000 shares of Registerable Securities (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations), provided; (a) the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee or assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 2; and (c)
such assignment
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shall be effective only if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act.
13. Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented
without the written consent of each of the parties hereto. Any of the
Stockholders or the Company may, by written notice to the others, (i) waive any
of the conditions to its obligations hereunder or extend the time for the
performance of any of the obligations or actions of the other, (ii) waive any
inaccuracies in the representations of the other contained in this Agreement or
in any documents delivered pursuant to this Agreement, (iii) waive compliance
with any of the covenants of the other contained in this Agreement and (iv)
waive or modify performance of any of the obligations of the other. No action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action or compliance with any representation,
warranty, condition or agreement contained herein. Waiver of the breach of any
one or more provisions of this Agreement shall not be deemed or construed to be
a waiver of other breaches or subsequent breaches of the same provisions.
14. Notices. All notices, demands, requests, demands and other
communications required or otherwise given under this Agreement shall be in
writing and shall be deemed to have been duly given if: (a) delivered by hand
against written receipt therefor, (b) forwarded by a third party company or
governmental entity providing delivery services in the ordinary course of
business which guarantees delivery the following business day, (c) mailed by
registered or certified mail, return receipt requested, postage prepaid, or (d)
transmitted by facsimile transmission electronically confirmed for receipt, in
full, by the other party no later than 5:00 pm, local time, on the date of
transmission, addressed as follows (i) If to the Company, to Vizacom Inc.,
Glenpointe Center East 000 Xxxxx X. Xxxx Xxxxxxxxx, Xxxxxxx, Xxx Xxxxxx 00000;
Attention: President; Facsimile: (000) 000-0000: with a copy to: Xxxxxxx &
Xxxxxxxx, LLC; 00 Xxxxxxx Xxxxxxxxx Xxxxxxxxx - Xxxxx 000; Xxxxxxx Xxxxx, Xxx
Xxxx 00000; Attention: Xxxx X. Xxxxxxx, Esq.; Facsimile: (000) 000-0000 and (ii)
if to the Stockholders, to the respective address set forth on the signature
pages hereof, with a copy to Ruskin, Moscou, Xxxxx & Faltischek, P.C., 000 Xxx
Xxxxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000; Attention: Xxxx Xxxxxx, Esq.; Facsimile:
# (000) 000-0000 or (iii) in the case of any of the parties hereto, at such
other address as such party shall have furnished to each of the other parties
hereto in accordance with this Section 14. Each such notice, demand, request or
other communication shall be deemed given (i) on the date of such delivery by
hand, (ii) on the first business day following the date of such delivery to the
overnight delivery service or facsimile transmission or (iii) three business
days following such mailing.
15. Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
16. Further Assurances. Each party hereto covenants and agrees with all
other parties
15
hereto to promptly execute, deliver, file and/or record such agreements,
instruments, certificates and other documents and to do and perform such
other and further acts and things as any other party hereto may reasonably
request or as may otherwise be necessary or proper to consummate and perfect the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by themselves or their duly authorized respective officers, all as of the
date first written above.
VIZACOM INC.
By: /s/ Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
President
STOCKHOLDERS
/s/ Xxxxxxx XxXxxxxx
Name: Xxxxxxx XxXxxxxx
Address:
/s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Address:
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