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EXHIBIT 2(k)(iv)
REGISTRATION RIGHTS AGREEMENT
AGREEMENT dated as of June 15, 1995, by and among Virtus Corporation,
a North Carolina corporation ("the Company"), and the Holder of Registrable
Securities of the Company (as defined below).
W I T N E S S E T H:
WHEREAS, the Company and the holders of the securities of the Company
desire to provide for the circumstances under which the Company will register
securities of the Company on behalf of the holders of such securities; and
WHEREAS, the Company is entering, has entered, and/or will enter, into
counterparts of this Agreement with certain other holders of its securities,
all of which counterparts, whenever and with whomever executed, shall
constitute one Agreement.
NOW THEREFORE, in consideration of the premises and the mutual terms
and provisions hereof, the parties hereto hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following
terms shall have the following respective meanings:
(a) "Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute enacted hereafter, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect from time to
time.
(b) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Act.
(c) The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Act and the declaration or ordering of effectiveness of
such registration statement by the Commission.
(d) "Registrable Securities" shall mean (i) shares of Common Stock
which are owned by the undersigned on the date of executing this Agreement or
which are owned by another party to this Agreement at the time of execution of
a counterpart of this Agreement, or (ii) shares of Common Stock issued or
issuable upon conversion or exercise of Convertible Securities owned by the
undersigned on the date of executing this Agreement or owned by another party
to this Agreement at the time of execution of a counterpart of this Agreement,
and (iii) shares of Common Stock issued as a dividend or other distribution
with respect to, or in exchange or in replacement of, any such Common Stock or
Convertible
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Securities (securities shall be deemed to be owned for this purpose if an
agreement for their purchase has been executed).
(e) "Holder" shall mean any person who is a party to this
Agreement or a counterpart to this Agreement and who holds Registrable
Securities and any other person holding Registrable Securities to whom these
registration rights have been transferred pursuant to Section 10 of this
Agreement; provided, however, that any person who acquires any Registrable
Securities in a distribution pursuant to a registration statement filed by the
Company under the Act or pursuant to a sale under Rule 144 under the Act shall
not be considered a Holder.
(f) "Convertible Securities" means any securities of the Company
which entitle the holder of such securities to receive upon conversion or
exercise shares of Common Stock or Convertible Securities of the Company.
2. Piggyback Registration. Subject to Section 8 of this
Agreement, if at any time the Company proposes to register any of its
securities under the Act, either for its own account or for the account of
others, in connection with the public offering of such securities solely for
cash, on a registration form that would also allow the registration of
Registrable Securities, the Company shall, each such time, promptly give each
Holder written notice of such proposal. This provision shall not apply to a
registration solely of securities issued or issuable in connection with any
stock option plan or other employee benefit plan. Upon receipt by the Company
of the written request of any Holder given within ten (10) days after mailing
of any such notice by the Company, the Company shall use its best efforts to
cause to be included in such registration under the Act all the Registrable
Securities that each such Holder has requested be registered.
3. Obligations of the Company. Whenever required under this
Agreement to use its best efforts to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration statement
covering such Registrable Securities and use its best efforts to cause such
registration statement to be declared effective by the Commission as
expeditiously as possible and to keep such registration effective until the
earlier of (i) the date when all Registrable Securities covered by the
registration statement have been sold or (ii) 180 days from the effective date
of the registration statement.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to such registration statement as may be necessary to
keep such registration statement effective during the period referred to in
Section 3(a) and to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement, and cause
the
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prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed with the Commission pursuant to Rule 424 under the
Act.
(c) Furnish to the selling Holders such numbers of copies of such
registration statement, each amendment thereto, the prospectus included in such
registration statement (including each preliminary prospectus), each supplement
thereto as they may reasonably request in order to facilitate the disposition
of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the Registrable
Securities under the securities laws of such jurisdictions in which the Company
shall register securities to be sold by the Company pursuant to the same
registration under the Act.
(e) Promptly notify each selling Holder of such Registrable
Securities at any time when a prospectus relating thereto is required to be
delivered under the Act of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading and, at the request of any such Holder, the Company will prepare
promptly a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
will not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading.
(f) Provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement.
(g) Enter into underwriting agreements and related agreements in
customary form for a primary offering.
(h) Make available for inspection by any selling Holder of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
agent retained by any such selling Holder or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the officers, directors, employees and independent accountants of the
Company to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
(i) Promptly notify the selling Holders of Registrable Securities
and the underwriters, if any, of the following events and (if requested by any
such person) confirm such notification in writing: (1) the filing of the
prospectus or any prospectus supplement and the registration statement and any
amendment or post-effective amendment thereto and, with respect to the
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registration statement or any post-effective amendment thereto, the declaration
of the effectiveness of such documents, (2) any requests by the Commission for
amendments or supplements to the registration statement or the prospectus or
for additional information, (3) the issuance of any stop order suspending the
effectiveness of the registration statement, and (4) the receipt by the Company
of any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction.
(j) Whenever any provision of this Agreement requires the Company to
furnish any information to Holder or the agents or representatives of Holder,
the Company may require any such person or entity to execute and deliver a
reasonable confidentiality agreement, agreement to refrain from trading or any
other agreement necessary or prudent to protect the Company or its officers,
directors and employees against xxxxxxx xxxxxxx liabilities and may restrict
access to confidential trade secret information.
4. Furnish Information. In the event of any registration by the
Company (whether or not the Registrable Securities of any Holder are included
therein), the Holders shall furnish to the Company such information regarding
them, the Registrable Securities and other securities of the Company held by
them, and the intended method of disposition of such Registrable Securities as
the Company shall reasonably request and as shall be required in connection
with the action to be taken by the Company. It shall be a condition precedent
to the obligation of the Company to cause any registration pursuant to this
Agreement to have become effective for the Holders to have exercised their
rights of conversion with respect to any Registrable Securities proposed to be
registered.
5. Suspension of Disposition of Registrable Securities. Each
selling Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e) or 3(i) (2), (3)
or (4) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities until such Holder's receipt of copies of a supplemented
or amended prospectus contemplated by Section 3(e) hereof, or until it is
advised in writing by the Company that the use of the prospectus may be
resumed, and has received copies of any additional or supplemental filings
which are incorporated by reference in the prospectus, or in the case of
Section 3(i) (2), (3) or (4), until the Company notifies the Holder in writing
that sales of Registrable Securities may continue. If so directed by the
Company, such Holder will deliver to the Company (at the expense of the
Company) all copies, other than permanent file copies then in such Holder's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice.
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6. Expenses of Registration.
The Holders shall bear the fees and disbursements of their own
counsel and shall bear any additional registration and qualification fees and
expenses (including underwriters' discounts and commissions), and any additional
costs and disbursements of counsel for the Company that result solely from the
inclusion of Registrable Securities held by the Holders in such registration,
with such additional expenses of the registration being borne by all selling
Holders pro rata on the basis of the total number of Registrable Securities so
registered; provided, however, that if any such cost or expense is attributable
solely to one selling Holder and does not constitute a normal cost or expense
of a registration, such cost or expense shall be allocated solely to that
selling Holder.
7. Underwriting Requirements; Priorities.
(a) The Company will have the right to select the investment
banker(s) and manager(s) to administer any offering to which this Agreement is
applicable. If a registration is an underwritten primary registration on
behalf of the Company (without regard to registration rights arising hereunder
or under any other agreement), and the managing underwriters advise the Company
in writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold at the
desired price in such offering, the Company will include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the Holders thereof on the basis of the number of Registrable Securities
owned by them and (iii) third, other securities requested to be included in
such registration, pro rata among the holders thereof on the basis of the
number of shares requested to be registered. If a registration is an
underwritten secondary registration on behalf of holders of securities of the
Company, or a combined primary and secondary offering, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold at the desired price in such offering, the Company will
include in such registration (i) first, securities the Company proposes to
sell, (ii) second, the securities requested to be included therein by holders
with contractual registration rights other than the Holders, pro rata among the
holders of such securities on the basis of the number of shares requested to be
included therein, (iii) third, the securities requested to be included therein
by Holders of Registrable Securities, pro rata among the holders of such
Registrable Securities on the basis of the number of shares requested to be
included therein, and (iv) fourth, other securities requested to be included in
such registration, including securities to be sold by holders without
contractual registration rights.
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(b) No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's securities on the
basis provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents required under the terms of such underwriting arrangements.
8. Limitation of the Company's Obligations.
(a) The Company may, in its sole discretion, (i) not comply with
this Agreement in the case of its initial public offering registered under the
Act, and (ii) terminate this Agreement after sale or other transfer, whether by
registration, under Rule 144 or otherwise, by the Holders of at least Fifty
(50%) Percent of the aggregate number of Registrable Securities held by Holders
at the time of the Company's initial public offering.
(b) The Company shall not be obligated under this Agreement to
register or include in any registration Registrable Securities that any Holder
has requested to be registered if the Company shall furnish such Holder with a
written opinion of counsel reasonably satisfactory to such Holder, that all
Registrable Securities that such Holder holds may be publicly offered, sold and
distributed without registration under the Act pursuant to Rule 144 promulgated
by the Commission under the Act without restriction as to the amount of
securities that can be sold.
9. Lockup Agreement.
(a) For so long as the Holder has the right to have Registrable
Securities included in any registration pursuant to this Agreement, the Holder
agrees in connection with any registration of the Company's securities upon the
request of the underwriters managing any underwritten offering of the Company's
securities, not to sell, make any short sale of, pledge, grant any option for
the purchase of or otherwise dispose of any Registrable Securities (other than
those included in the registration) without the prior written consent of the
Company or such underwriters, as the case may be, during the seven days prior
to and during the 90-day period beginning on the effective date of such
registration as the Company or the underwriters may specify. This provision
shall apply whether or not any Registrable Securities of the Holder are
included in the offering.
10. Transfer of Registration Rights. Provided that the Company
is given written notice by the Holder at the time of such transfer stating the
name and address of the transferee and identifying the securities with respect
to which the rights under this Agreement are being assigned, the registration
rights under this Agreement may be transferred in whole or in part at any time
to any transferee of Registrable Securities.
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11. Indemnification and Contribution. In the event any Registrable
Securities are included in a registration statement under this Agreement:
(a) To the full extent permitted by law, the Company will, and
hereby does, indemnify and hold harmless each Holder whose Registrable
Securities are included in a registration, each director, officer, partner,
employee, or agent for such Holder, any underwriter (as defined in the Act) for
such Holder, and each person, if any, who controls such Holder or underwriter
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which they may become subject under the Act
and applicable state securities laws insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based on any
untrue or alleged untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein in light of the circumstances under
which they were made or necessary to make the statements therein not misleading
or arise out of any violation by the Company of any rule or regulation
promulgated under the Act applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration; and
will reimburse each such person or entity for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld) nor
shall the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in connection with such registration statement, preliminary prospectus,
final prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by or on behalf of any such Holder, underwriter or
controlling person.
(b) To the full extent permitted by law, each Holder whose
Registrable Securities are included in a registration under this Agreement,
severally and not jointly, will indemnify and hold harmless the Company, each
of its directors, each of its officers who have signed the registration
statement, each person, if any, who controls the Company within the meaning of
the Act, and any underwriter for the Company (within the meaning of the Act),
each other selling Holder and each person, if any, who controls such other
selling Holder within the meaning of the Act against any losses, claims,
damages or liabilities, joint or several, to which the Company or any such
director, officer, controlling person, selling Holder or underwriter may become
subject, under the Act and
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applicable state securities laws, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in such registration
statement, preliminary or final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information furnished
by such Holder expressly for use in connection with such registration; and each
such Holder will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer, controlling person, selling Holder
or underwriter in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of such
Holder (which consent shall not be unreasonably withheld).
In no event shall the liability by reason of this contractual
indemnity of any selling Holder of Registrable Securities hereunder be greater
than the dollar amount of the proceeds received by such Holder upon the sale of
the Registrable Securities giving rise to such indemnification obligation. Any
Holder required to indemnify the Company as provided above shall cease to have
the right to participate in any other registration pursuant to this Agreement.
12. Remedies. In addition to being entitled to exercise all
rights provided in this Agreement as well as all rights granted by law,
including recovery of damages, the Company and each Holder of Registrable
Securities will be entitled to specific performance of its rights under this
Agreement. The Company and each Holder 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 not to raise the defense in
any action for specific performance that a remedy at law would be adequate.
13. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may be given, by written consent of the Company and the Holders of at least a
majority of the outstanding Registrable Securities.
14. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by
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hand-delivery, registered first-class mail, telex, telecopier, or air courier
guaranteeing overnight delivery:
(a) if to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company in accordance with the provisions
of this Section 14, which address initially shall be the address given to the
Company upon acquisition of the Registrable Securities, unless the Holder has
notified the Company of a change of address; and
(b) if to the Company, initially at its address set forth below
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 14:
Virtus Corporation
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx, XX 00000
Attn: President
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
15. 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.
16. Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
17. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina.
18. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
19. 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
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to herein with respect to the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter. Nothing in this Agreement shall preclude the Company from entering
into any other agreement having the same or different terms with any Holder or
any third party with respect to registration rights or related matters.
20. Parties Benefitted. Nothing in this Agreement, express or
implied, is intended to confer upon any third party any rights, remedies,
obligations or liabilities.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date set forth below.
VIRTUS CORPORATION
By:
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Title:
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Date:
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SOUTHEAST INTERACTIVE TECHNOLOGY
FUND I, LLC
By:
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Date: Title:
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