EXHIBIT 10.64
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (the "Agreement"), dated as of June 23,
2000, among xxxxxx.xxx, Inc., a Delaware corporation (the "Company"),
Commonwealth Associates, L.P. ("Commonwealth"), ComVest Capital Management, LLC
("ComVest," and with Commonwealth, the "Bridge Lenders," or each, a "Bridge
Lender") and each of the investors identified on Schedule 1 hereto (as such
schedule may be updated from time to time) and signatory hereto (each an
"Investor" and collectively, the "Investors").
WHEREAS, this Agreement is being entered into in connection with that
certain placement agency agreement, dated the date hereof, between Commonwealth
and the Company (the "Agency Agreement"), and a bridge loan extended by the
Bridge Lenders to the Company (the "Bridge Loan") and an equity investment made
by the Investors in the Company (the "Equity Investment") contemplated thereby;
and
WHEREAS, on the date hereof, the Bridge Lenders funded the Bridge Loan
and the Company issued to the Bridge Lenders 8% senior secured promissory notes
in the aggregate principal amount of $1,500,000 (the "Notes"); and
WHEREAS, as an inducement to the Bridge Lenders to fund the Bridge
Loan, the Company issued to the Bridge Lenders those certain warrants (herein,
as at any time amended, extended, restated, renewed or modified, the "Bridge
Warrants") to purchase up to 4,000,000 shares of Common Stock (the "Common
Stock"), $0.001 par value per share, of the Company (the "Bridge Warrant
Shares"); and
WHEREAS, pursuant to the terms of subscription agreements entered into
between the Company and each Investor in the Equity Investment (collectively,
the "Subscription Agreement"), each Investor will purchase (i) shares of the
Company's Series D Preferred Stock (the "Preferred Stock") that is convertible
into shares of Common Stock (the "Preferred Conversion Shares"), and (ii)
warrants ("Investor Warrants") to purchase shares of Common Stock (the "Investor
Warrant Shares"); and
WHEREAS, in connection with the Equity Investment, the Company will
issued to Commonwealth, as placement agent, certain warrants (the "Agency
Warrants") to purchase shares of Common Stock (the "Agency Warrant Shares"); and
WHEREAS, the terms of the Bridge Warrants, Preferred Stock, Investor
Warrants and Agency Warrants provide that the Bridge Warrant Shares, Preferred
Conversion Shares, Investor Warrant Shares and Agent Warrant Shares, as the case
may be, shall be entitled to registration rights; and
WHEREAS, the Company has previously entered into registration rights
agreements, the terms of each of which provide that the Company shall not grant
registration rights superior to those granted in such Existing Agreements (as
defined below).
NOW, THEREFORE in consideration of the foregoing and the mutual
promises, representations, warranties and covenants and agreements contained
herein, the Company and each of the Investors hereto, intending to be legally
bound hereby agree as follows:
1. Definitions. The following additional definitions shall apply for
purposes of this Agreement:
(a) The term "Existing Agreements" means the following outstanding
registration rights agreements of the Company, each of which provides that
the Company shall not grant registration rights superior to those granted
in such agreements: (i) Amended and Restated Registration Rights Agreement
made as of January 29, 1999 by and among the Company, Superior Consultant
Holdings Corporation, Xxxx Xxxxxxxx and Adventist Health System Sunbelt
Healthcare Corporation, as supplemented in the Registration Agreement,
dated April 18, 2000 and (ii) Registration Rights Agreement made as of July
1, 1999 by and among the Company and America Online, Inc.
(b) The term "Holder" means a Bridge Lender or Investor and any
transferee or assignee thereof to whom a Bridge Lender or Investor assigns
its rights under this Agreement and who agrees to become bound by the
provisions of this Agreement in accordance with Section 8 and, as required
to comply with Section 9(m), the parties to the Existing Agreements to the
extent necessary to avoid a breach of either such agreement.
(c) The term "Equity Investment Holder" means (i) an Investor, (ii)
Commonwealth, insofar as it is a holder of Agency Warrants or Agency
Warrant Shares or (iii) any transferee or assignee thereof to whom an
Investor or Commonwealth, with respect to the Agency Warrants or Agency
Warrant Shares, assigns rights under this Agreement and who agrees to
become bound by the provisions of this Agreement in accordance with
Section 8.
(d) The term "Bridge Loan Holder" means a Bridge Lender and any
transferee or assignee thereof to whom a Bridge Lender assigns its rights
as a Bridge Lender under this Agreement and who agrees to become bound by
the provisions of this Agreement in accordance with Section 8.
(e) The term "Person" means an individual, a limited liability company,
a partnership, a joint venture, a corporation, a trust, an unincorporated
organization, a government or any department or agency thereof.
(f) The terms "Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing one or more Registration
Statements, (as defined below) or similar document in compliance with the
Securities Act of 1933, as
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amended (the "1933 Act"), and Rule 415 thereunder or any successor rule
providing for the offering for resale of securities on a continuous or
delayed basis ("Rule 415"), and the declaration or ordering of
effectiveness of such Registration Statement or document by the United
States Securities and Exchange Commission (the "SEC").
(g) The term "Registrable Securities" means (1) the Bridge Warrant
Shares issued or issuable upon exercise of the Bridge Warrants, the
Investor Warrant Shares issued or issuable upon exercise of the Investor
Warrants and the Agency Warrant Shares issued or issuable upon exercise of
the Agency Warrants, and any other securities of the Company issuable upon
the exercise of any such Warrants; (2) the Preferred Conversion Shares, and
any other securities of the Company, issued or issuable upon the conversion
of the Preferred Stock; and (3) any shares of capital stock or other
securities issued or issuable with respect to the Bridge Warrant Shares,
the Investor Warrant Shares or the Agency Warrant Shares or the Preferred
Stock, the Bridge Warrants, the Investor Warrants or the Agency Warrants,
as a result of any stock split, stock dividend, recapitalization, exchange
or similar event or otherwise, without regard to any limitations on the
exercises of the Bridge Warrants, the Investor Warrants or the Agency
Warrants, or conversion of the Preferred Stock; provided, that any
securities deemed Registrable Securities in accordance herewith shall cease
to be Registrable Securities upon the first to occur of (i) the sale of
such securities pursuant to a Registration Statement, (ii) the sale of such
securities pursuant to Rule 144 promulgated under the 1933 Act, (iii) the
date on which all Warrant Shares and Preferred Conversion Shares owned by a
Holder may be resold in a single 90-day period pursuant to Rule 144 or (iv)
the date on which such securities become available for sale under Rule
144(k). Registrable Securities shall include only outstanding Bridge
Warrant Shares, Investor Warrant Shares, Agency Shares and Preferred
Conversion Shares, it being understood that the Company shall have no
obligation to register the initial issuance of any said shares.
(h) The term "Registration Statement" means a registration statement on
Form S-1 or Form S-3 or any similar or successor form then appropriate for
or applicable to the offer and sale of the Registrable Securities and filed
under the 1933 Act.
2. Registration.
(a) Right to Include Registrable Stock. If the Company proposes to
register any of its securities under the 1933 Act in connection with the
public offering of such securities solely for cash (other than a
registration on Form S-4 or Form S-8, or any successor or similar forms)
(the "Offering"), it will each such time promptly (but not later than 30
days before the anticipated date of filing such Registration Statement)
give written notice to each Holder, it being understood that the Bridge
Lenders will not be entitled to notice or registration under this Section
2(a) until six months from the close of the Bridge Financing. Upon the
written request of any of the Holders made within 15 days after the receipt
of any such notice (which request shall specify the Registrable Securities
intended to be disposed of by such Holders and the intended method of
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distribution thereof), the Company will use its reasonable best efforts to
effect the registration under the 1933 Act of all Registrable Securities
which the Company has been requested to register by any of the Holders in
accordance with the intended methods of distribution specified in such
request; provided that (i) if, at any time after giving written notice of
its intention to register any securities and prior to the effective date of
the Registration Statement filed in connection with such registration, the
Company determines for any reason not to proceed with such registration,
the Company may, at its election, give written notice of such determination
to the Holders and, thereupon, will be relieved of its obligation to
register any Registrable Securities in connection with such registration
and (ii) in case of a determination by the Company to delay registration of
its securities, the Company will be permitted to delay the registration of
Registrable Securities for the same period as the delay in registering such
other securities; provided, however, that the provisions of this Section 2
will not be deemed to limit or otherwise restrict the rights of the Holders
under Section 3.
(b) Mandatory Registration for the Equity Investment Holders'
Registrable Securities. Notwithstanding the foregoing, the Company shall
prepare and file with the SEC prior to six months from the final closing of
the Equity Financing (the "Filing Deadline"), a Registration Statement or
Registration Statements (as necessary) on Form S-3 covering the resale of
all of the Registrable Securities held by Equity Investment Holders and by
the Bridge Loan Holders. In the event that Form S-3 is unavailable for such
a registration, the Company shall use such other form as is available for
such a registration, subject to the provisions of Section 2(i). The Company
shall cause such Registration Statement to be declared effective by the SEC
prior to the date which is three months following the Filing Deadline (the
"Effectiveness Deadline").
(c) Demand Registrations for Holders of the Bridge Warrant Shares.
Subject to Section 2(e) hereof, if the Company shall receive, at any time
after six months from the closing of the Bridge Financing, a written
request from the Holders of at least fifty percent (50%) of the Registrable
Securities held by the Bridge Loan Holders then outstanding that the
Company file a registration statement under the Act, then the Company
shall, within 10 days of the receipt by the Company of such notice, give
written notice of such request to all Holders and shall, subject to the
limitations of subsection 2(i) below, effect as soon as practicable, and in
any event shall use its reasonable best efforts to effect within ninety
(90) days of the receipt of such request, the registration under the Act of
all Registrable Securities which the Holders request to be registered
within twenty (20) days of the mailing of such notice by the Company.
Pursuant to this Section, the Company shall register the resale of the
Registrable Securities on Form S-3, if such form is available. In the event
that Form S-3 is unavailable for such a registration, the Company shall use
such other form as is available for such a registration, subject to the
provisions of Section 2(i).
(d) If the Bridge Loan Holders initiating the registration request under
Section 2(c) hereof ("Initiating Holders") intend to distribute the
Registrable Securities
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covered by their request by means of an underwriting, they shall so advise
the Company as a part of their request made pursuant to Section 2(c) and
the Company shall include such information in the written notice referred
to in such Section 2(c). The underwriter will be selected by the Bridge
Lenders. In such event, the right of any Holder and any persons having
registration rights under the Existing Agreements to include his
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise
mutually agreed by a majority in interest of the Initiating Holders and
such Holder) to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting shall (together with
the Company) enter into an underwriting agreement in customary form with
the underwriter or underwriters approved for such underwriting by a
majority in interest of the Initiating Holders.
(e) If the Registrable Securities held by the Bridge Loan Holders shall
have been registered pursuant to Section 2(b) hereof, the Company shall not
be subject to the obligations contained in Section 2(c) hereof. The Company
is obligated to effect only two (2) registrations pursuant to Section 2(c),
so long as each such registration has been ordered effective by the SEC.
(f) Notwithstanding the foregoing, if (i) the Company shall furnish to
Holders requesting a registration statement pursuant to Section 2(c), a
certificate signed by the Company's President stating that in the good
faith judgment of the disinterested members of the Company's Board of
Directors (the "Board"), it would be seriously detrimental to the Company
and its shareholders for such registration statement to be filed and it is
therefore desirable to defer the filing of such registration statement, the
Company shall have the right to defer taking action with respect to such
filing for a period of not more than ninety (90) days after receipt of the
request of the Initiating Holders; provided, however, that the Company
shall not utilize this right more than twice in any twelve (12)-month
period or (ii) the Company shall have determined that it intends to engage
in a primary offering of new securities for the account of the Company
raising gross proceeds of at least $20 million to finance its capital needs
("Primary Financing"), the Company may defer the filing of such
registration statement for up to sixty (60) days in order to permit the
Company to file a registration statement with respect to such Primary
Financing (in respect of which "piggyback" rights shall apply upon the
terms and subject to the conditions of this Agreement), provided that the
underwriter or placement agent in such Primary Financing, as the case may
be, has a nationally recognized reputation.
(g) Priority. If the managing underwriter for a registration (other than
with respect to a Registration Statement filed pursuant to Section 2(b) and
2(c) above) involving an underwritten offering advises the Company that, in
its opinion, the number of securities of the Company (including Registrable
Securities) requested to be included in such registration by the holders
thereof exceeds the number of securities of the
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Company (the "Sale Number") which can be sold in an orderly manner in such
offering within a price range acceptable to the Company, the Company will
include (i) first, all securities of the Company that the Company proposes
to register for its own account and (ii) second, to the extent that the
number of securities of the Company to be included by the Company is less
than the Sale Number, subject to the Existing Agreements, a number of the
Registrable Securities equal to the number derived by multiplying (a) the
difference between the Sale Number and the securities proposed to be sold
by the Company, and (b) a fraction the numerator of which is the number of
Registrable Securities originally requested to be registered by the Holders
and the denominator of which shall be the aggregate number of all
securities requested to be registered by all holders of the Company's
securities (other than securities being registered by the Company itself).
The Company hereby agrees that it will not hereafter grant registration
rights to any other holder that are more favorable to such holder than the
registration rights granted hereunder, it being understood that the Company
has obligations under the Existing Agreements.
(h) Legal Counsel. Subject to Section 7 hereof, in the case of a
mandatory registration pursuant to Section 2(b), the Investors holding a
majority of the Registrable Securities, and in the case of a demand
registration pursuant to Section 2(c), the Bridge Lenders, shall have the
right to select one legal counsel to review and oversee any offering
pursuant to this Section 2 ("Legal Counsel"), which shall be Paul,
Hastings, Xxxxxxxx & Xxxxxx LLP or such other counsel as thereafter
designated as set forth in above. The Company shall reasonably cooperate
with Legal Counsel in performing the Company's obligations under this
Agreement.
(i) Ineligibility of Form S-3. In the event that Form S-3 is not
available for the registration of the resale of Registrable Securities
hereunder, the Company shall (i) register the resale of the Registrable
Securities on another appropriate form and (ii) undertake to register the
resale of the Registrable Securities on Form S-3 as soon as such form is
available, provided that the Company shall maintain the effectiveness of
the Registration Statement then in effect until such time as a Registration
Statement on Form S-3 covering the Registrable Securities has been declared
effective by the SEC.
(j) Effect of Failure to File and Obtain and Maintain Effectiveness of
Registration Statement pursuant to a Mandatory Registration. If (i) a
Registration Statement covering all the Registrable Securities held by an
Equity Investment Holder and required to be filed by the Company pursuant
to Section 2(b) of this Agreement is not (A) filed with the SEC on or
before the Filing Deadline or (B) declared effective by the SEC on or
before the applicable Effectiveness Deadline or (ii) on any day after the
Registration Statement has been declared effective by the SEC, sales of all
the Registrable Securities required to be included on such Registration
Statement cannot be made pursuant to the Registration Statement (including,
without limitation, because of a failure to keep the Registration Statement
effective, to disclose such information as is
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necessary for sales to be made pursuant to the Registration Statement, to
register sufficient shares of Common Stock), then, as the sole remedy to
any Equity Investment Holder by reason of any such delay in or reduction of
its ability to sell the underlying shares of Common Stock, (x) each of the
exercise price of the Investor Warrants and Agency Warrants (as set forth
in the applicable Warrants) and the Conversion Price relating to the
Preferred Stock (as set forth in the Certificate of Designation for the
Preferred Stock) that then constitute Registrable Securities shall be
reduced by 5% for each aggregate 30-day period (or pro rated amounts
thereof for partial 30-day periods) that (i) the Registration Statement is
not (A) filed with the SEC on or before the Filing Deadline or (B) declared
effective by the SEC following the Effectiveness Deadline and (ii) after
the Registration Statement is declared effective by the SEC, such
Registration Statement is not available for the sale of at least all of the
Registrable Securities required to be included in such Registration
Statement, (y) the number of Investor Warrant Shares or Agency Warrant
Shares that constitute Registrable Securities, as the case may be, shall be
increased to a number determined by multiplying the number of the
applicable Warrant Shares purchasable immediately prior to the applicable
exercise price reduction hereunder by a fraction, the numerator of which
shall be the exercise price per share in effect prior to the applicable
exercise price reduction hereunder and the denominator of which shall be
the exercise price as so reduced, and (z) the number of Preferred
Conversion Shares shall be increased to a number determined by multiplying
the number of such Preferred Conversion Shares issuable upon conversion of
the Preferred Stock immediately prior to the Conversion Price reduction
hereunder by a fraction, the numerator of which shall be the Conversion
Price per share in effect prior to the Conversion Price reduction hereunder
and the denominator of which shall be the Conversion Price as so reduced.
The foregoing penalties shall not be triggered during any period of time
when (i) the Placement Agent and the Subscribers (as such terms are defined
in the Agency Agreement) have the right to designate persons that
constitute a majority of the board of directors of the Company, (ii) a
Delay Period (as hereinafter defined) and the seven days following a Delay
Period or (iii) the Holder is otherwise able to sell its securities under
Rule 144 (with respect to such saleable securities).
(k) Sufficient Number of Shares Registered. In the event the number of
shares available under a Registration Statement filed pursuant to Section
2(b) or 2(c) is insufficient to cover all of the Registrable Securities
which such Registration Statement is required to cover, the Company shall
amend the Registration Statement, or file a new Registration Statement (on
the short form available therefor, if applicable), or both, so as to cover
at least 100% of the Registrable Securities (based on the market price of
the Common Stock on the trading day immediately preceding the date of
filing of such amendment or new Registration Statement), in each case, as
soon as reasonably practicable, but in any event not later than fifteen
(15) business days after the necessity therefor arises. The Company shall
cause such amendment and/or new Registration Statement to become effective
as soon as practicable following the filing thereof. For purposes of the
foregoing provision, with respect to a Registration Statement filed
pursuant to Section 2(b) hereof, the number of shares available under a
Registration
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Statement shall be deemed "insufficient to cover all of the Registrable
Securities" if the number of Registrable Securities issued or issuable upon
conversion of the Preferred Stock and exercise of the Investor Warrants and
Agency Warrants covered by such Registration Statement is greater than the
number of shares of Common Stock available for resale under the
Registration Statement to cover shares issued or issuable upon conversion
of the Preferred Stock and exercise of the Investor Warrants and Agency
Warrants. For purposes of the calculation set forth in the foregoing
sentence, any restrictions on the conversion of the Preferred Stock and the
exercise of the Investor Warrants or Agency Warrants shall be disregarded
and such calculation shall assume that the Preferred Stock is then
convertible into shares of Common Stock at the then prevailing Conversion
Price (as defined in the Company's Certificate of Designation for the
Preferred Stock) and the Investor Warrants or Agency Warrants, as the case
may be, are then exercisable for shares of Common Stock at the then
prevailing applicable Warrant Share Price (as defined in the applicable
Warrant). With respect to a Registration Statement filed pursuant to
Section 2(c) hereof, the number of shares available under a Registration
Statement shall be deemed "insufficient to cover all of the Registrable
Securities" if the number of Registrable Securities issued or issuable upon
exercise of the Bridge Warrants covered by such Registration Statement is
greater than the number of shares of Common Stock available for resale
under the Registration Statement to cover shares issued or issuable upon
exercise of the Bridge Warrants. For purposes of the calculation set forth
in the foregoing sentence, any restrictions on the exercise of the Bridge
Warrants shall be disregarded and the Bridge Warrants are then exercisable
for shares of Common Stock at the then prevailing Warrant Share Price (as
defined in the Bridge Warrant).
3. Obligations of the Company. Whenever required under this Agreement to
effect the registration of any Registrable Securities, the Company will, as
expeditiously as commercially practicable, fulfill the following obligations:
(a) The Company shall promptly prepare and file with the SEC a
Registration Statement with respect to the Registrable Securities (but in
no event later than the Filing Deadline with respect to a Registration
Statement to be filed pursuant to Section 2(b)) and use its reasonable best
efforts to cause such Registration Statement to become effective (but, in
the case of registration pursuant to Section 2(b) hereof, in no event later
than the applicable Effectiveness Deadline). The Company will keep such
Registration Statement effective for up to 21 months but not, in any event,
after such securities cease being Registrable Securities (the "Registration
Period") and subject to any Delay Periods, as defined below. Any
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein, or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
The Company shall not be required to keep a Registration Statement
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effective during any Delay Period. The term "Delay Period" shall mean with
respect to any obligation to keep any Registration Statement usable for
resales pursuant to this Section 3, the period when there exist
circumstances relating to a material pending development, including but not
limited to a pending or contemplated material acquisition or merger or
other material transaction or similar event, which would require disclosure
by the Company in such Registration Statement of material information which
the Company determines in good faith that it has a bona fide business
purpose for keeping confidential and non-public and the non-disclosure of
which in such Registration Statement might cause such Registration
Statement to fail to comply with applicable disclosure requirements. A
Delay Period shall commence on and include the date that the Company gives
written notice (a "Delay Notice") to the Holders that it is not required to
cause a Registration Statement to be declared effective or the prospectus
contained in the Registration Statement is no longer usable as a result of
a material pending development and shall end on the date when the Holders
are advised in writing by the Company that the current Delay Period has
terminated (it understood that the Company shall give such notice to all
Holders promptly upon making the determination that the Delay Period has
ended); provided, however, that the Company shall not be entitled to Delay
Periods having durations that exceed one hundred and eighty (180) days in
the aggregate during any calendar year. Any Delay Period shall extend the
period up to which the Company is obligated to keep a Registration
Statement effective set forth in the previous paragraph by the period of
such Delay Period.
(b) The Company shall prepare and file with the SEC such amendments and
supplements to such Registration Statement and the prospectus used in
connection with such Registration Statement as may, to its knowledge, be
necessary to comply with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities covered by such Registration
Statement until such time as all of such Registrable Securities shall have
been disposed of in accordance with the intended methods of disposition by
the seller or sellers thereof as set forth in such Registration Statement.
In the case of amendments and supplements to a Registration Statement which
are required to be filed pursuant to this Agreement (including pursuant to
this Section 3(b)) by reason of the Company filing a report on Form 10-K,
Form 10-Q or Form 8-K or any analogous report under the Securities Exchange
Act of 1934, as amended (the "1934 Act"), the Company shall have
incorporated such report by reference into the Registration Statement, if
applicable, or shall file such amendments or supplements with the SEC on
the same day on which the 1934 Act report is filed which created the
requirement for the Company to amend or supplement the Registration
Statement.
(c) The Company shall (1) permit Legal Counsel to review and comment
upon those sections of (i) a Registration Statement relating to the Bridge
Lenders or Investors a reasonable period prior to its filing with the SEC,
and (ii) all other sections of a Registration Statement and all amendments
and supplements to all Registration Statements, which are applicable to the
Bridge Lenders or Investors (except
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for Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current
Reports on Form 8-K and any similar or successor report and registration
statements on Form S-8) a reasonable period prior to their filing with the
SEC and (2) not file any document in a form to which Legal Counsel
reasonably objects. The Company shall not submit a request for acceleration
of the effectiveness of a Registration Statement or any amendment or
supplement thereto without the prior approval of Legal Counsel, which
consent shall not be unreasonably withheld. The Company shall furnish to
Legal Counsel, without charge, (i) any correspondence from the SEC or the
staff of the SEC to the Company or its representatives relating to any
Registration Statement, (ii) promptly after the same is prepared and filed
with the SEC, one copy of any Registration Statement and any amendment(s)
thereto, including financial statements and schedules and all exhibits and
(iii) upon the effectiveness of any Registration Statement, one copy of the
prospectus included in such Registration Statement and all amendments and
supplements thereto. The Company shall reasonably cooperate with Legal
Counsel in performing the Company's obligations pursuant to this Section 3.
(d) The Company shall furnish to each of the Holders such numbers of
copies of a prospectus, including a preliminary prospectus, in conformity
with the requirements of the 1933 Act, and such other documents as it may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by such Holders.
(e) The Company shall use its reasonable best efforts to (i) register
and qualify, unless an exemption from registration and qualification
applies, the Registrable Securities covered by a Registration Statement
under all jurisdiction's securities or "blue sky" laws in the United
States, (ii) prepare and file in those jurisdictions, such amendments
(including post-effective amendments) and supplements to such registrations
and qualifications as may be reasonably necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be reasonably necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and
(iv) take all other actions reasonably necessary or advisable to qualify
the Registrable Securities for sale in such jurisdictions; provided,
however, that the Company shall not be required in connection therewith or
as a condition thereto to (x) qualify to do business in any jurisdiction
where it would not otherwise be required to qualify but for this Section
3(e), (y) subject itself to general taxation in any such jurisdiction, or
(z) file a general consent to service of process in any such jurisdiction.
The Company shall promptly notify Legal Counsel and each Holder who holds
Registrable Securities of the receipt by the Company of any notification
with respect to the suspension of the registration or qualification of any
of the Registrable Securities for sale under the securities or "blue sky"
laws of any jurisdiction in the United States or its receipt of actual
notice of the initiation or threat of any proceeding for such purpose.
(f) As promptly as practicable after becoming aware of such event or
development, the Company shall notify Legal Counsel and each Holder in
writing of the
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happening of any event as a result of which the prospectus included in a
Registration Statement, as then in effect, includes an untrue statement of
a material fact or omission to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (provided that in
no event shall such notice contain any material, nonpublic information),
and promptly prepare a supplement or amendment to such Registration
Statement to correct such untrue statement or omission, and deliver copies
of such supplement or amendment to Legal Counsel and each Holder as they
may reasonably request. The Company shall also promptly notify Legal
Counsel and each Holder in writing (i) when a prospectus or any prospectus
supplement or post-effective amendment has been filed, and when a
Registration Statement or any post-effective amendment has become
effective, (ii) of any request by the SEC for amendments or supplements to
a Registration Statement or related prospectus or related information, and
(iii) of the Company's reasonable determination that a post-effective
amendment to a Registration Statement would be appropriate.
(g) The Company shall use its reasonable best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any of
the Registrable Securities for sale in any jurisdiction, however, if such
an order or suspension is issued, the Company shall obtain the withdrawal
of such order or suspension at the earliest possible moment and to notify
Legal Counsel and each Holder who holds Registrable Securities being sold
of the issuance of such order and the resolution thereof or its receipt of
actual notice of the initiation or threat of any proceeding for such
purpose.
(h) At the reasonable request of any Holder and at the expense of such
Holder, the Company shall furnish to such Holder, on the date of the
effectiveness of the Registration Statement and thereafter from time to
time on such dates as any of the Holders may reasonably request (i) a
letter, dated such date, from the Company's independent certified public
accountants in form and substance as is customarily given by independent
certified public accountants to underwriters in an underwritten public
offering, provided that the Holder provides a due diligence letter in
accordance with SAS 72 and such a letter may otherwise be delivered in
accordance with the then prevailing professional practice, and (ii) an
opinion, dated as of such date, of counsel representing the Company for
purposes of such Registration Statement, in form, scope and substance as is
customarily given in an underwritten public offering, addressed to the
Holders.
(i) The Company shall cause all the Registrable Securities covered by a
Registration Statement to be listed on each securities exchange on which
securities of the same class or series issued by the Company are then
listed, if any, if the listing of such Registrable Securities is then
permitted under the rules of such exchange. The Company shall pay all fees
and expenses in connection with satisfying its obligation under this
Section 3(i).
11
(j) The Company shall make documents, files, books, records, officers,
directors and employees of the Company reasonably available to any Holder,
Legal Counsel and one firm of accountants or other agents retained by the
Holders and provided the underwriters, if any, shall have agreed to be
bound by the provisions of this Section 3(j), to such underwriters
(collectively the "Inspectors"), and make such other accommodations as are
reasonably necessary for the Inspectors, if any, to perform a due diligence
review of the Company; provided, however, that all such information
("Confidential Information") will be kept confidential and not utilized by
the Inspectors except as contemplated herein and except as required by law
or court order. The term "Confidential Information" does not include
information that (i) is already in possession of such other party (other
than that which is subject to another confidentiality agreement or
fiduciary duty), (ii) becomes generally available to the public, or (iii)
becomes available on a non-confidential basis from a source other than the
Company. Each Holder agrees that it shall, upon learning that disclosure of
such Confidential Information is sought in or by a court or governmental
body of competent jurisdiction or through other means, give prompt notice
to the Company and allow the Company, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective
order for, the information deemed confidential.
(k) The Company shall hold in confidence and not make any disclosure of
information concerning any Holder provided to the Company unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to
avoid or correct a misstatement or omission in any Registration Statement,
(iii) the release of such information is ordered pursuant to a subpoena or
other final, non-appealable order from a court or governmental body of
competent jurisdiction, (iv) such information has been made generally
available to the public other than by disclosure in violation of this
Agreement or any other agreement or (v) such Holder consents to the form
and content of any such disclosure. The Company agrees that it shall, upon
learning that disclosure of such information concerning any Holder is
sought in or by a court or governmental body of competent jurisdiction or
through other means, give prompt written notice to such Holder and allow
such Holder, at the Holder's expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, such
information.
(l) The Company shall cooperate with each of the Holders who hold
Registrable Securities being offered, and to the extent applicable, to
facilitate the timely preparation and delivery of certificates (not bearing
any restrictive legend) representing the Registrable Securities to be
offered pursuant to a Registration Statement and enable such certificates
to be in such denominations or amounts, as the case may be, as the Holders
may reasonably request and registered in the names of the transferee
thereof, provided that the Holder certifies that the sale was made in
accordance with the plan of distribution contained in the prospectus and
the transferee was delivered a current prospectus as required under the
1933 Act.
12
(m) The Company shall provide a transfer agent and registrar of all such
Registrable Securities not later than the effective date of such
Registration Statement.
(n) If requested by any Holder, the Company shall (i) as soon as
practicable incorporate in a prospectus supplement or post-effective
amendment such information as such Holder requests to be included therein
relating to the sale and distribution of Registrable Securities, including,
without limitation, information with respect to the number of Registrable
Securities being offered or sold, the purchase price being paid therefor
and any other terms of the offering of the Registrable Securities to be
sold in such offering; (ii) as soon as practicable make all required
filings of such prospectus supplement or post-effective amendment after
being notified of the matters to be incorporated in such prospectus
supplement or post-effective amendment; and (iii) supplement or make
amendments to any Registration Statement if reasonably requested by any
Holder of such Registrable Securities.
(o) The Company shall otherwise comply with all applicable rules and
regulations of the SEC in connection with any registration hereunder.
(p) Within two (2) business days after a Registration Statement which
covers applicable Registrable Securities is ordered effective by the SEC,
the Company shall deliver, and shall cause legal counsel for the Company to
deliver, to the transfer agent for such Registrable Securities (with copies
to the Holders whose Registrable Securities are included in such
Registration Statement) confirmation that such Registration Statement has
been declared effective by the SEC in the form attached hereto as
Exhibit A.
(q) The Company and each Holder shall provide such opinions,
certifications, indemnifications, and take such other actions, including,
without limitation, entering into such agreements (including underwriting
agreements), as are reasonably required and appropriate, to permit the
Holders to make a public offering of the Registrable Securities requested
to be registered on customary terms, in which event the Company's
obligations hereunder shall be conditioned on performance by the Holders of
their obligations under such arrangements.
4. Furnish Information. The Company's obligation to cause any Registration
Statement to become effective in connection with distribution of any Registrable
Securities pursuant to this Agreement is contingent upon each Holder, with
reasonable promptness, furnishing to the Company such information regarding
itself, the Registrable Securities held by it, and the intended method of
disposition of such securities, as is required pursuant to Regulation S-K
promulgated under the 1933 Act, to effect the registration of the Registrable
Securities.
5. Indemnification. In the event of any registration under this Agreement:
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(a) The Company will indemnify and hold harmless each Holder and its
officers, directors, partners and affiliates (and their officers, directors
and partners), any underwriter (as defined in the 0000 Xxx) for each Holder
and each person (and its officers, directors, partners and affiliates), if
any, who controls any Holder or underwriter within the meaning of the 1933
Act or the 1934 Act (each a "Company Indemnified Person"), against any
losses, claims, damages, or liabilities (joint or several) to which they
may become subject under the 1933 Act, or the 1934 Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any of the
following statements, omissions or violations (collectively a "Violation"):
(i) any untrue statement or alleged untrue statement of a material fact
contained in such Registration Statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto or (ii) the omission or alleged omission to state
therein a material fact required to be stated therein, or necessary in
order to make the statements therein, in light of the circumstances under
which they were made, not misleading, and the Company will pay to each such
Company Indemnified Person, as incurred, any legal or other expenses
reasonably incurred by or on behalf of him in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection (a)
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 will 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 (1) a Violation which occurs solely as the result of the written
information furnished by any Holder, underwriter or controlling person
seeking indemnification hereunder, as applicable, expressly for inclusion
in the Registration Statement or (2) with respect to any underwriter and
controlling person of such underwriter (and their respective officers and
directors), a Violation which results from the fact that there was not sent
or given to a person who bought Registrable Securities, at or prior to the
written confirmation of the sale, a copy of the final prospectus, as then
amended or supplemented, if the Company had previously furnished copies of
such prospectus hereunder and such prospectus corrected the misstatement or
omission forming the basis of the Violation.
(b) Each Holder will indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the Registration
Statement, each person, if any, who controls the Company within the meaning
of the 1933 Act, any underwriter and any controlling person of any such
underwriter or other holder (each a "Holder Indemnified Person"), against
any losses, claims, damages, or liabilities (joint or several) to which any
of the foregoing persons may become subject, under the 1933 Act, or the
1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or action in respect thereto) arise out of or are
based upon any Violation, in each case to the extent (and only to the
extent) that such Violation occurs solely as a result of the written
information furnished by each Holder expressly for inclusion in the
applicable Registration Statement; and such Holder will pay, as incurred,
any legal or
14
other expenses reasonably incurred by any Holder Indemnified Person
intended to be indemnified pursuant to this subsection (b), in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that any Holder's liability pursuant to this
subsection (b) shall be limited to the amount of the net proceeds received
by such Holder from the sale of the Registrable Securities sold by it, and
further provided that the indemnity agreement contained in this subsection
(b) does 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.
(c) Promptly after receipt by an indemnified party under this Section 5
of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to
be made against any indemnifying party under this Section 5, deliver to the
indemnifying party a written notice of the commencement of such action and
the indemnifying party will have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; provided, however, that an
indemnified party (together with all other indemnified parties which may be
represented without conflict by one counsel) will have the right to retain
one separate counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of the indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to
actual or potential differing interests between the indemnified party and
any other party represented by such counsel in the same proceeding. If the
indemnifying party shall fail to defend the action, the indemnified party
may conduct its own defense and shall be entitled to reimbursement for the
costs of such defense. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action shall not relieve such indemnifying party of any liability to the
indemnified party under this Agreement, except to the extent that the
indemnifying party is actually prejudiced by such failure. The omission so
to deliver written notice to the indemnifying party does not relieve it of
any liability that it may have to any indemnified party otherwise than
under this Agreement. No indemnifying party under this Agreement will enter
into any settlement or consent to any entry of judgment which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to the indemnified party of a release from all liability in
respect of such claim or litigation.
(d) If the indemnification provided for in this Section 5 is held by a
court of competent jurisdiction to be unavailable to an indemnified party
or is insufficient to indemnify an indemnified party with respect to any
loss, liability, claim, damage, or expense referred to therein, then the
indemnifying party, in lieu of or in addition to, as appropriate,
indemnifying such indemnified party hereunder, will contribute to the
amount paid or payable by such indemnified party as a result of such loss,
liability, claim, damage, or expense in such proportion as is appropriate
to reflect the relative fault of the indemnifying party on the one hand and
of the indemnified party on the other in
15
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and
of the indemnified party will be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by
the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information, and opportunity to
correct or prevent such statement or omission. The obligation of any Holder
to make a contribution pursuant to this Section 5 (d) shall be limited to
the net proceeds received by such Holder from the sale of the Registrable
Securities sold by it, less any amounts paid pursuant to Section 5(b).
(e) The obligations of the Company and each of the Holders under this
Section 5 will survive the completion of any offering of Registrable
Securities in a Registration Statement under this Agreement, and otherwise.
6. Expenses of Registration. All expenses of the Company incurred in
connection with any registration, qualification or compliance pursuant to this
Agreement, including, without limitation, all registration, filing and
qualification fees, printing expenses, fees and disbursements of counsel for the
Company and expenses of any special audits incidental to or required by such
registration, qualification or compliance will be borne by the Company. In
addition, the Company shall reimburse the Holders for the reasonable fees and
disbursements of Legal Counsel in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3 of this Agreement which amount shall
be limited to $15,000.
7. Assignment of Registration Rights. The rights under this Agreement shall
be automatically assignable by any Holder to any transferee of all or any
portion of Registrable Securities if: (i) such Holder agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement is
furnished to the Company within a reasonable time after such assignment; (ii)
the Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (a) the name and address of such transferee or
assignee, and (b) the securities with respect to which such registration rights
are being transferred or assigned; (iii) immediately following such transfer or
assignment the further disposition of such securities by the transferee or
assignee is restricted under the 1933 Act and applicable state securities laws;
(iv) at or before the time the Company receives the written notice contemplated
by clause (ii) of this sentence the transferee or assignee agrees in writing
with the Company to be bound by all of the provisions contained herein; and (v)
such transfer shall have been made in accordance with the applicable
requirements of the Equity Investment, including, without limitation, applicable
lock-up agreements.
8. Amendments and Consents. The terms of the Agreement may be amended,
modified or waived by agreement of the Corporation, Commonwealth and the
Committee (as defined in the Subscription Agreement) to the extent they relate
to the
16
Equity Investment Holders and by the Corporation and the Bridge Investors to the
extent they relate to Bridge Loan Holders. All consents to be made by the Equity
Investment Holders pursuant to this Agreement shall be made by Commonwealth and
the Committee and all consents to be made by the Bridge Investors pursuant to
this Agreement shall be made by the Bridge Investors. Any amendment, waiver or
consent effected in accordance with this Section 8 will be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities, and the Company. No consideration shall be offered
or paid to any Person to amend or consent to a waiver or modification of any
provision of this Agreement or provide consent unless the same consideration
also is offered to all of the parties to this Agreement. The Company is entitled
to rely upon and assume the accuracy and completeness of the certificate
supplied by Commonwealth and the Committee affirming that all requisite
approvals and authorizations were obtained before any such amendment,
modification, waiver or consent was made.
9. Miscellaneous.
(a) Further Assurances. The Company and each of the Holders agree to
execute and deliver such other documents or agreements as may reasonably be
necessary or desirable for the implementation of this Agreement and the
consummation of the transactions contemplated hereby.
(b) Owner of Registrable Securities. A Person is deemed to be a holder
of Registrable Securities whenever such Person owns or is deemed to be
owner of record of such 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 shall act upon
the basis of instructions, notice or election received from the registered
owner of such Registrable Securities.
(c) Submission to Jurisdiction. The parties hereto hereby irrevocably
submit to the non-exclusive jurisdiction of any federal or state court
located within the Borough of Manhattan, State of New York over any dispute
arising out of or relating to this Agreement or any of the transactions
contemplated hereby and each party hereby irrevocably agrees that all
claims in respect of such dispute or any suit, action or proceeding related
thereto may be heard and determined in such courts. The parties hereby
irrevocably waive, to the fullest extent permitted by applicable law, any
objection which they may now or hereafter have to the laying of venue of
any such dispute brought in such court or any defense of inconvenient forum
for the maintenance of such dispute. Each of the parties hereto agrees that
a judgment in any such dispute may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(d) Consent to Service of Process. Each of the parties hereto hereby
consents to process being served by any party to this Agreement in any
suit, action or proceeding by the mailing of a copy thereof in accordance
with the provisions of Section 10(i) hereof.
17
(e) Entire Agreement; Amendments and Waivers. This Agreement, the
Investor Warrants, the Agency Warrants, the Certificate of Designation of
the Preferred Stock and the Subscription Agreement represent the entire
understanding and agreement among the parties hereto with respect to the
subject matter hereof and can be amended, supplemented or changed, and any
provision hereof can be waived, only by written instrument making specific
reference to this Agreement signed by the parties hereto. The waiver by any
party hereto of a breach of any provision of this Agreement shall not
operate or be construed as a further or continuing waiver of such breach or
as a waiver of any other or subsequent breach. No failure on the part of
any party to exercise, and no delay in exercising, any right, power or
remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of such right, power or remedy by such party preclude any
other or further exercise thereof or the exercise of any other right, power
or remedy. All remedies hereunder are cumulative and are not exclusive of
any other remedies provided by law.
(f) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to
the principles of conflict of laws thereunder which would specify the
application of the law of another jurisdiction.
(g) Headings; Interpretive Matters. The section headings of this
Agreement are for reference purposes only and are to be given no effect in
the construction or interpretation of this Agreement. No provision of this
Agreement will be interpreted in favor of, or against, any of the parties
hereto by reason of the extent to which any such party or its counsel
participated in the drafting thereof or by reason of the extent to which
any such provision is inconsistent with any prior draft hereof or thereof.
(h) Notices. All notices and other communications under this Agreement
shall be in writing and shall be deemed given when delivered personally,
telecopied or mailed by certified mail, return receipt requested, to the
parties at the address or telecopier number indicated in the signature
pages and Schedule I hereof. All notices are effective upon receipt or upon
refusal if properly delivered.
(i) Rule 144 Requirements. The Company covenants that it will file the
reports required to be filed by it under the 1933 Act and the 1934 Act, and
the rules and regulations adopted by the SEC thereunder, provided, however,
the Company may delay any such filing but only pursuant to Rule 12b-25
under the 1934 Act; and it will take such further action as any Holder of
Registrable Securities may reasonably request (including, without
limitation, promptly obtaining and required legal opinions, if any, from
Company counsel necessary to effect the sale of Registrable Securities
under Rule 144 (and paying the related fees and expenses of such counsel),
all to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the 1933 Act within the
limitation of the exemptions provided by (a) Rule 144 under the Act, as
such Rule may be amended from time to time, or (b) any similar rule or
18
regulation hereafter adopted by the SEC. Upon the request of any Holder of
Registrable Securities, the Company will deliver to such Holder a written
statement as to whether it has complied with such requirements. In the
event of any breach by the Company of its covenants and obligations
hereunder, then, as the sole relief for damages to any Holder by reason of
any delay or inability to sell the underlying shares of Common Stock (which
remedy shall be the exclusive remedy available at law or in equity) (x) the
exercise price of the Bridge Warrants, Investor Warrants and Agency
Warrants (as set forth in the applicable Warrants) and the Conversion Price
relating to the Preferred Stock (as set forth in the Certificate of
Designation) shall be reduced by 5% for each aggregate 30-day period (or
pro rated amounts thereof for partial 30-day periods) that the Holder is
delayed from selling, or unable to sell, Registrable Securities under Rule
144 due to (i) the Company's failure to promptly provide the requisite
legal opinion as described above or (ii) the Company's failure to comply
with the filing and other requirements under Rule 144 necessary to make
such Rule available to the Holders, (y) the number of Bridge Warrant
Shares, Investor Warrant Shares and Agency Warrant Shares shall be
increased to a number determined by multiplying the number of applicable
Warrant Shares purchasable immediately prior to the applicable exercise
price reduction hereunder by a fraction, the numerator of which shall be
the exercise price per share in effect prior to the applicable exercise
price reduction hereunder and the denominator of which shall be the
exercise price as so reduced, and (z) the number of Preferred Conversion
Shares shall be increased to a number determined by multiplying the number
of Preferred Conversion Shares issuable upon conversion of the Preferred
Stock immediately prior to the applicable Conversion Price reduction
hereunder by a fraction, the numerator of which shall be the Conversion
Price per share in effect prior to the Conversion Price reduction hereunder
and the denominator of which shall be the Conversion Price as so reduced.
The foregoing penalties shall not apply to any breach by the Company of its
covenants and obligations hereunder which (i) may be occurring for up to 10
days during any 90-day period, (ii) during any Delay Period or (iii) if
such securities are otherwise able to be sold under an effective
registration statement or Rule 144(k). In addition, the foregoing penalties
shall not apply if the Company is subject to the penalties specified in
Section 2(j) hereof.
(j) Severability. If any provision of this Agreement is invalid or
unenforceable, the balance of this Agreement shall remain in effect.
(k) Binding Effect; Assignment. Subject to Section 7, this Agreement
shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. Nothing in this Agreement
shall create or be deemed to create any third-party beneficiary rights in
any person not a party to this Agreement except as provided below and in
Section 8. Upon any assignment, the references in this Agreement to any
Holder shall also apply to any such assignee unless the context otherwise
requires.
19
(l) Termination. The obligations of the Company contained in Section 2
hereof shall expire and be of no force and effect on June 23, 2005.
(m) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
(n) No Inconsistent Agreement; Coordination with Existing Agreements.
The rights granted to the Holders pursuant to this Agreement are not
intended to, and shall not be interpreted to, violate the rights granted
under the Existing Agreements ("Prior Rights"), and should any conflict
between the Prior Rights and the rights hereunder arise, the rights
hereunder shall be interpreted in a manner that does not violate the Prior
Rights and therefore, with respect to the conflicting provision, shall be
deemed subordinate to the Prior Rights. The Company will not hereafter
enter into any agreement with respect to its securities which violates the
rights granted to the Holders in this Agreement.
[The rest of this page has been intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have executed or have caused
this Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first written above.
xxxxxx.xxx, Inc.
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO
Notice address:
The foregoing Agreement is
hereby accepted as of the date
first above written:
COMMONWEALTH ASSOCIATES, L.P.
By Xxxxxx X. Xxxxx
---------------------------
Title: CFO
COMVEST VENTURE PARTNERS, L.P.
By Xxxxxx X. Xxxxx
---------------------------
Title: CFO
21
