EXHIBIT 10.1
VISION ACQUISITION III, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of May
2, 2008 by and among VISION ACQUISITION III, INC., a Delaware corporation (the
"Company"), and each INVESTOR executing an omnibus signature page or a copy
hereof (collectively, the "Investors" and each, an "Investor").
WHEREAS, the Investors desire to purchase from the Company, and the
Company desires to issue and sell to the Investors (the "Offering"), a minimum
of 40 units (the "Units") each Unit consisting of 10,000 shares (the "Shares")
of its common stock, par value $0.0001 per share (the "Common Stock"), upon the
terms set forth in the Company's Confidential Private Placement Memorandum,
dated March 24, 2008 (the "Memorandum"); and
WHEREAS, to induce the Investors to purchase shares of Common Stock,
the Company has agreed to undertake to register, if, as and when required
hereunder, the Common Stock under the terms set forth herein.
NOW, THEREFORE, the parties hereto hereby covenant and agree as
follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the following respective meanings:
"Commission Comments" means written comments pertaining solely to Rule
415 which are received by the Company from the SEC, and a copy of which shall
have been provided by the Company to the Investor, to a filed Registration
Statement which limit the amount of shares which may be included therein to a
number of shares which is less than such amount sought to be included thereon as
filed with the SEC.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
SEC thereunder, all as the same shall be in effect at the time.
"Public Sale" shall mean any sale of securities to the public pursuant
to (i) an offering pursuant to an effective registration statement under the
Securities Act or (ii) the provisions of Rule 144 (or any similar rule or rules
then in effect) under the Securities Act.
"Register," "registered" and "registration" shall mean a registration
effected by preparing and filing a registration statement or statements or
similar documents in compliance with the Securities Act and the declaration or
ordering of effectiveness of such registration statement or document by the SEC.
"Registrable Securities" shall mean (i) all shares of Common Stock
represented by the Shares purchased by the Investors, (ii) all shares of Common
Stock issued as a dividend or other distribution with respect to, or in exchange
for or in replacement of, any of the foregoing shares of Common Stock and (iii)
any other shares of Common Stock otherwise acquired by an Investor. As to any
particular shares of Common Stock constituting Registrable Securities, such
shares shall cease to be Registrable Securities when they are eligible for a
Public Sale.
"Requisite Period" shall mean, with respect to a firm commitment
underwritten public offering, the period commencing on the effective date of the
registration statement and ending on the date each underwriter has completed the
distribution of all securities purchased by it, and, with respect to any other
registration, the period commencing on the effective date of the registration
statement and ending on the earlier of (i) the date on which the sale of all
Registrable Securities covered thereby is completed, and (ii) the date on which
all Registrable Securities become publicly traded and freely tradeable without
volume restrictions pursuant to Rule 144.
"Rule 415" means Rule 415 promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC having substantially the same
effect as such Rule.
"SEC" shall mean the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the applicable time.
"Shares" shall mean all of the shares of Common Stock purchased by
Investors.
"Stockholders" shall mean all Investors.
2. Automatic Registration.
Within 30 days following the closing of a merger or other
business combination with an operating business (a "Merger") or any other event
pursuant to which the Company ceases to be a "shell company," as defined by Rule
12b-2 under the Exchange Act and a "blank check company," as defined by Rule
3a51-1 under the Exchange Act (an "Event"), we agree to file with the SEC a
registration statement on Form S-1 (or another available form) under the
Securities Act (the "Registration Statement"), covering the resale of the
Shares. We further agree to use our best efforts to cause the Registration
Statement to be declared effective by the SEC on or before the earlier of (1)
150 days following an Event or the closing of a Merger, as applicable, or if the
Registration Statement is subject to review and comment from the Commission, 180
days following an Event or the closing of a Merger, as applicable, or (2) five
trading days following the date on which we are notified by the SEC that the
Registration Statement will not be reviewed or is no longer subject to further
review.
3. Piggyback Registration.
(a) If the Company at any time (other than pursuant to
Sections 2 or 4 hereof) proposes to effect a registration of any of its
securities pursuant to and in accordance with the provisions of the Securities
Act for sale to the public, whether for its own account or for the account of
other security holders or both (except with respect to an initial public
offering ("IPO"), registration statements on Forms S-4 and S-8 and any similar
successor forms thereto, and/or registrations on Form S-3 relating solely to
dividend or interest reinvestment plans) (a "Piggyback Registration"), each such
time it shall give prompt written notice to such effect to all holders of
outstanding Registrable Securities at least forty-five (45) days prior to such
filing. Upon the written request of any such holder, received by the Company
within twenty (20) days after the giving of any such notice by the Company, the
Company will, subject to Section 3(b) hereof, cause all Registrable Securities
as to which registration shall have been so requested to be included in the
registration statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by the holder of such
Registrable Securities on the same terms and conditions as the other shares of
Common Stock included in such registration statement (the "Piggyback
Registration Statement").
(b) The Company shall automatically include in such
Piggyback Registration Statement all Registrable Securities for resale and offer
on a continuous basis pursuant to Rule 415; provided, however, 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 will be relieved of its obligation
to register any Registrable Securities in connection with such registration,
(ii) in case of a determination by the Company to delay registration of its
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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, (iii) each Investor is subject to confidentiality obligations
with respect to any information gained in this process or any other material
non-public information he, she or it obtains, (iv) each Investor is subject to
all applicable laws relating to xxxxxxx xxxxxxx or similar restrictions; and (v)
if all of the Registrable Securities of the Investor cannot be so included due
to Commission Comments, then the Company may reduce the number of the Investor's
Registrable Securities covered by such Registration Statement to the maximum
number which would enable the Company to conduct such offering in accordance
with the provisions of Rule 415. The Investor shall be entitled to include all
Registrable Securities for resale in the Piggyback Registration Statement filed
by the Company in connection with a public offering of equity securities by the
Company after the date of this Agreement, pursuant to Rule 415, so long as (1)
such shares shall not be included as part of the underwritten offering of
primary shares by the Company, unless the Company and underwriter agree to allow
the inclusion of such Registrable Securities as part of the underwritten
offering and, in such event, the Investor elects to include the Registrable
Securities in the underwriting subject to an allocation among all holders of
registration rights in the manner set forth in Section 3(d) hereof, (2) the
underwriter approves the inclusion of such Registrable Securities in such
Initial Registration Statement, subject to customary underwriter cutbacks
applicable to all holders of registration rights, (3) the Investor shall enter
into the underwriters' form of lockup agreement as and to the extent requested
by the underwriters, which may require that all of the Registrable Securities
held by the Investor not be sold or otherwise transferred without the consent of
the underwriters for a period not to exceed 180 days from the closing of the
offering contemplated by the Initial Registration Statement, and (4) if all of
the Registrable Securities of the Investor cannot be so included due to
Commission Comments, then the Company may reduce the number of the Investor's
Registrable Securities covered by such Registration Statement to the maximum
number which would enable the Company to conduct such offering in accordance
with the provisions of Rule 415. The Company shall cause any Registration
Statement filed under this Section 3(b) to be declared effective under the
Securities Act as promptly as possible after the filing thereof and shall keep
such Registration Statement continuously effective under the Securities Act
during the Effectiveness Period. By 5:00 p.m. (New York City time) on the
business day immediately following the Effective Date of such Registration
Statement, the Company shall file with the Commission in accordance with Rule
424 under the Securities Act the final Prospectus to be used in connection with
sales pursuant to such Registration Statement (whether or not such filing is
technically required under such Rule).
(c) In the event that any Piggyback Registration shall
be, in whole or in part, an underwritten public offering of Common Stock and the
managing underwriter(s) advise the Company in writing that in their opinion the
number of Registrable Securities and/or other securities requested to be
included in such offering exceeds the number of shares which can be sold without
materially adversely affecting the marketability of the offering, then the
number of Registrable Securities to be included in such registration statement
shall be reduced, pro rata among the requesting holders, based upon the number
of Registrable Securities requested to be registered by them; provided, that for
all registrations other than an IPO, the shares of Registrable Securities shall
not be reduced until all shares of Common Stock for the account of any person
other than the Company and its assigns, or requesting holders of Registrable
Securities are first reduced. Subject to the foregoing sentence, the Company
will include in such registration (i) first, the securities the Company proposes
to sell and (ii) second, the Registrable Securities and/or other securities
requested to be included in such registration, pro rata from among the holders
of Registrable Securities, according to the number of Registrable Securities
and/or other securities requested by them to be so included.
(d) In the event that all Registrable Securities cannot
be included in a Registration Statement or a Piggyback Registration Statement
under Sections 2 or 3 hereof due to Commission Comments, then the Company,
unless otherwise prohibited by the SEC, shall cause the Registrable Securities
of the Stockholder to be included in such Registration Statement to be reduced
pro rata based on the number of registrable securities held by all holders of
registration rights.
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4. Registration; Holdback Agreement; Power of Attorney.
(a) Notwithstanding anything to the contrary contained in
this Agreement, the Company shall not be required to file a registration
statement pursuant to Sections 2 or 4 hereof (i) which would become effective
within 120 days following the effective date of a registration statement (other
than a registration statement filed on Form S-4 or S-8) filed by the Company
with the SEC pertaining to any subsequent public offering for the account of the
Company or another holder of securities of the Company if the holder(s) of
Registrable Securities were afforded the opportunity, subject to the
underwriter's cut-back, to include all of its Registrable Securities in such
subsequent registration pursuant to Section 3 hereof or (ii) during the period
which would violate any restriction or prohibition reasonably requested by any
managing underwriter(s) for a public offering.
(b) Each Stockholder hereby irrevocably appoints Antti
William Uusiheimala ("Attorney") to act as his or its true and lawful agent and
attorney-in-fact, with full power of substitution, in his sole discretion to
effect any changes to, or elimination of, the rights of Stockholders herein.
5. Registration Procedures. If and whenever the Company is
required by the provisions hereof to effect the registration of any Registrable
Securities under the Securities Act, the Company will, as expeditiously as
possible:
(a) subject to Sections 2 and 4 hereof, use its best
efforts to cause the Registration Statement to be declared effective by the SEC
on the earlier of (1) 150 days following an Event or the closing of a Merger, as
applicable, or if the Registration Statement is subject to review and comment
from the SEC, 180 days following an Event or the closing of a Merger, as
applicable, or (2) five trading days following the date on which we are notified
by the SEC that the Registration Statement will not be reviewed or is no longer
subject to further review.
(b) subject to Sections 3 and 4 hereof, use its best
efforts to prepare and file with the SEC a registration statement with respect
to such securities within thirty (30) days after delivery of notice under
Section 3 or Section 4 hereof, and use its best efforts to cause such
registration statement to become effective not later than 120 days from the date
of its filing and to remain effective for the Requisite Period;
(c) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the Requisite Period and comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement in accordance with the intended method of disposition set
forth in such registration statement for such period;
(d) furnish to each seller of Registrable Securities and
to each underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the intended disposition
of the Registrable Securities covered by such registration statement;
(e) use its best efforts (i) to register or qualify the
Registrable Securities covered by such registration statement under the
securities or "blue sky" laws of such United States jurisdictions as the sellers
of Registrable Securities or, in the case of an underwritten public offering,
the managing underwriter reasonably shall request, (ii) to prepare and file in
those United States jurisdictions such amendments (including post effective
amendments) and supplements, and take such other actions, as may be necessary to
maintain such registration and qualification in effect at all times for the
period of distribution contemplated thereby, and (iii) to take such further
action as may be necessary or advisable to enable the disposition of the
Registrable Securities in such United States jurisdictions; provided that the
Company shall not for any such purpose be required to qualify generally to
transact business as a foreign corporation in any jurisdiction where it is not
so qualified or to consent to general service of process in any such
jurisdiction;
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(f) use its best efforts to list the Registrable
Securities covered by such registration statement with any securities exchange
on which the Common Stock of the Company is then listed, or, if the Common Stock
is not then listed on a national securities exchange, use its best efforts to
list and facilitate the reporting of the Common Stock on The New York Stock
Exchange, The American Stock Exchange, The Nasdaq National Market or Capital
Market;
(g) immediately notify each seller of Registrable
Securities and each underwriter under such registration statement, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company has knowledge
as a result of which the prospectus contained in such registration statement, as
then in effect, includes any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing
and promptly amend or supplement such registration statement to correct any such
untrue statement or omission;
(h) notify each seller of Registrable Securities of the
issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or the initiation of any proceedings for that purpose and
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, obtain the lifting thereof at the earliest possible
time;
(i) permit a single firm of counsel designated as selling
stockholders' counsel by the holders of a majority-in-interest of the
Registrable Securities and all other securities being registered to review the
registration statement and all amendments and supplements thereto for a
reasonable period of time prior to their filing, and the Company shall not file
any document in a form to which such counsel reasonably objects;
(j) if the offering is an underwritten offering, at the
request of any seller of Registrable Securities, use its best efforts to furnish
to such seller on the date that Registrable Securities are delivered to the
underwriters for sale pursuant to such registration: (i) a copy of an opinion,
dated such date, of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, stating that such registration
statement has become effective under the Securities Act, and (A) that, to the
best knowledge of such counsel, no stop order suspending the effectiveness
thereof has been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Securities Act, (B) that the
registration statement, the related prospectus and each amendment or supplement
thereof comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as to
financial statements or other financial or statistical information contained
therein) and (C) to such other effects as reasonably may be requested by counsel
for the underwriters, and (ii) a copy of a letter dated such date from the
independent public accountants retained by the Company, addressed to the
underwriters, stating that they are independent public accountants within the
meaning of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request;
(k) make available for inspection by each seller of
Registrable Securities, any underwriter participating in any distribution
pursuant to such registration statement, and any attorney, accountant or other
agent retained by such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement, unless such requested information
contains material nonpublic information, in which case no such material
nonpublic information shall be supplied other than pursuant to a mutual
confidentiality agreement;
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(l) provide a transfer agent and registrar, which may be
a single entity, for the Registrable Securities not later than the effective
date of the Registration Statement;
(m) take all actions reasonably necessary to facilitate
the timely preparation and delivery of certificates representing the Registrable
Securities to be sold pursuant to the Registration Statement; and
(n) take all other reasonable actions necessary to
expedite and facilitate the registration of the Registrable Securities pursuant
to the Registration Statement.
In connection with each registration hereunder, the sellers of
Registrable Securities will furnish to the Company in writing such information
with respect to themselves and the proposed distribution by them as reasonably
shall be necessary in order to assure compliance with federal and applicable
state securities laws.
6. Expenses. All expenses incurred by the Company in complying
with Sections 2, 3 and 4 hereof, including, without limitation, all registration
and filing fees, listing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including counsel fees) incurred in connection with complying with state
securities or "blue sky" laws, fees of the National Association of Securities
Dealers, Inc., reasonable fees of transfer agents and registrars, costs of
insurance, and reasonable fees and disbursements of counsel for the sellers of
Registrable Securities designated pursuant to Section 5(i) and all other
securities being registered, but excluding any Selling Expenses, are called
"Registration Expenses." All underwriting discounts, selling commissions, fees
and expenses of counsel (other than the one counsel selected to represent the
selling stockholders as set forth in Section 5(i) hereof) and stock transfer
taxes applicable to the sale of Registrable Securities are called "Selling
Expenses."
The Company will pay all Registration Expenses in connection with each
Registration Statement filed hereunder. All Selling Expenses in connection with
each Registration Statement shall be borne by the participating sellers in
proportion to the number of Registrable Securities sold by each or as they may
otherwise agree.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each
seller of Registrable Securities, each underwriter of Registrable Securities and
each other person, if any, who controls such seller or underwriter within the
meaning of the Securities Act, from and against, and pay or reimburse them for,
any losses, claims, damages or liabilities, joint or several, to which such
seller, underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such Registrable Securities were
registered under the Securities Act pursuant hereto, any preliminary prospectus
(unless superseded by a final prospectus) or final prospectus contained therein,
or any amendment or supplement thereof, (ii) the omission or alleged omission to
state in any such registration statement a material fact required to be stated
therein or necessary to make the statements therein not misleading or, with
respect to any prospectus, necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or (iii) any
violation or alleged violation of the Securities Act or any state securities or
blue sky laws applicable to the Company and relating to action or inaction
required by the Company and will reimburse each such seller, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by it in connection with investigating or defending any such
loss, claim, damage or liability (or action in respect thereof); provided, that
the Company will not be liable in any such case if and only to the extent that
any such loss, claim, damage or liability (or action in respect thereof) arises
out of or is based upon the Company's reliance on an untrue statement or alleged
untrue statement or omission or alleged omission so made in conformity with
information furnished by any such seller, any such underwriter or any such
controlling person in writing specifically for use in such registration
statement or prospectus; and provided, further, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage or
liability (or action in respect thereof) arises out of or is based upon an
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untrue statement or alleged untrue statement or omission or alleged omission in
such registration statement or prospectus, which untrue statement or alleged
untrue statement or omission or alleged omission is completely corrected in an
amendment or supplement to the registration statement or prospectus and such
seller or such controlling person thereafter fails to deliver or cause to be
delivered such registration statement or prospectus as so amended or
supplemented prior to or concurrently with the Registrable Securities to the
person asserting such loss, claim, damage or liability (or action in respect
thereof) or expense after the Company has furnished such seller or such
controlling person with the same.
(b) Each seller of such Registrable Securities
thereunder, severally and not jointly, will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of the
Securities Act, each officer of the Company who signs the registration
statement, each director of the Company and each underwriter and each person who
controls any underwriter within the meaning of the Securities Act from and
against all losses, claims, damages or liabilities, joint or several, to which
the Company or such officer, director, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based on any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Registrable
Securities were registered under the Securities Act pursuant hereto, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereof, 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, and will reimburse the
Company and each such officer, director, underwriter and controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage or liability (or action
in respect thereof); provided, however, that such seller will be liable
hereunder in any such case only if and to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller furnished in
writing to the Company by such seller specifically for use in such registration
statement or prospectus; and provided, further, that the liability of each
seller hereunder shall be limited to the proportion that the public offering
price of the Registrable Securities sold by such seller under such registration
statement bears to the total public offering price of all securities sold
thereunder, but in any event not to exceed the proceeds actually received by
such seller from the sale of Registrable Securities covered by such registration
statement. Notwithstanding the foregoing, the indemnity provided in this Section
7(b) shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or expense if such settlement is effected without the consent
of such indemnified party, which shall not be unreasonably withheld.
(c) Promptly after receipt by an indemnified party
hereunder of notice of the commencement of any action or claim, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party in writing thereof,
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to such indemnified party other than under this
Section 7 and shall only relieve it from any liability which it may have to such
indemnified party under this Section 7 if and to the extent the indemnifying
party is materially prejudiced by such omission. In case any such action shall
be brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and undertake the
defense thereof with counsel satisfactory to such indemnified party, and, after
notice from the indemnifying party to such indemnified party of its election so
to assume and undertake the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 7 for any legal expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation and of liaison with counsel
so selected; provided, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be reasonable defenses available to it
which are different from or additional to those available to the indemnifying
party or if the interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
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expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either (i) any holder of Registrable Securities exercising rights under this
Agreement, or any controlling person of any such holder, makes a claim for
indemnification pursuant to this Section 7 but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 7 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
selling holder, any such controlling person or the Company in circumstances for
which indemnification is provided under this Section 7, then, and in each such
case, the Company and such holder will contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion so that such holder is responsible for the
portion represented by the percentage that the public offering price of its
Registrable Securities offered by the registration statement bears to the public
offering price of all securities offered by such registration statement, and the
Company is responsible for the remaining portion; provided, that, in any such
case (A) no such holder will be required to contribute any amount in excess of
the public offering price of all such Registrable Securities offered by it
pursuant to such registration statement, and (B) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
8. Changes in Capital Stock. If, and as often as, there is any
change in the capital stock of the Company by way of a stock split, stock
dividend, combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby shall continue with respect to the capital stock as so
changed.
9. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the SEC which may at any time
permit the sale of the Registrable Securities to the public without
registration, at all times after 90 days after any registration statement
covering a public offering of securities of the Company under the Securities Act
shall have become effective, the Company agrees to use its best efforts to:
(a) make and keep public information available, as those
terms are understood and defined in Rule 144(c) under the Securities Act;
(b) file with the SEC in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act ; and
(c) furnish to each holder of Registrable Securities
forthwith upon request a written statement by the Company as to its compliance
with the reporting requirements of such Rule 144 and of the Securities Act and
the Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the SEC allowing such holder to sell any Registrable Securities without
registration.
10. Representations and Warranties of the Company. The Company
represents and warrants to the Stockholders as follows:
(a) The execution, delivery and performance of this
Agreement by the Company have been duly authorized by all requisite corporate
action and will not violate any provision of law, any order of any court or
other agency of government, the Certificate of Incorporation or By-laws of the
Company or any provision of any indenture, agreement or other instrument to
which it or any of its properties or assets is bound, conflict with, result in a
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breach of or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company or its
subsidiaries.
(b) This Agreement has been duly executed and delivered
by the Company and constitutes the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms, subject to any applicable
bankruptcy, insolvency or other laws affecting the rights of creditors generally
and subject to general equitable principles and the availability of specific
performance.
11. Assignment of Registration Rights. The rights to cause or have
the Company register Registrable Securities pursuant to this Agreement may be
transferred by the Stockholders in connection with a transfer of Registrable
Securities to transferees or assignees of such securities; provided, that the
Company is, within 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. The term
"Stockholders" as used in this Agreement shall include such transferees or
permitted assignees.
12. Termination. The registration rights granted pursuant to this
Agreement shall terminate upon the expiration of the Requisite Period.
13. Miscellaneous.
(a) Subject to Section 11 hereof, all covenants and
agreements contained in this Agreement by or on behalf of any of the parties
hereto shall bind and inure to the benefit of the respective successors and
assigns of the parties hereto (including without limitation transferees of any
Registrable Securities), whether so expressed or not.
(b) All notices, requests, consents and other
communications hereunder shall be in writing and shall be delivered in person,
mailed by certified or registered mail, return receipt requested, or sent by
telecopier or telex, addressed (i) if to the Company, to Vision Acquisition III,
Inc., c/o Vision Capital Advisors, LLC, 00 Xxxx 00xx Xxxxxx, 0xx Xxxxx, Xxx
Xxxx, XX 00000, facsimile (000) 000-0000, Attention: Antti William Uusiheimala;
(ii) if to Investors, to the address of such party set forth beneath such
party's signature to the Omnibus Signature Page; (iii) if to Xxxxxx Associates,
LP, the Placement Agent, to 00 Xxxxxxxx, Xxx Xxxx, XX 00000, facsimile: (212)
742-4259, Attention: Xxxxx Xxxx; and (iv) if to any subsequent holder of
Registrable Securities, to it at such address as may have been furnished to the
Company in writing by such holder; or, in any case, at such other address or
addresses as shall have been furnished in writing to the Company (in the case of
a holder of Registrable Securities) or to the holders of Registrable Securities
(in the case of the Company) in accordance with the provisions of this
paragraph.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
entered into and to be performed wholly within said State.
(d) Any judicial proceeding brought against any of the
parties to this Agreement on any dispute arising out of this Agreement or any
matter related hereto shall be brought in the state or federal courts of the
State of New York and County of New York or in the United States District Court
for the Southern District of New York, and, by execution and delivery of this
Agreement, each of the parties hereto accepts for itself and himself the process
in any such action or proceeding by the mailing of copies of such process to it
or him, at its or his address as set forth in paragraph 13(b) and irrevocably
agrees to be bound by any judgment rendered thereby in connection with this
Agreement. Each party hereto irrevocably waives to the fullest extent permitted
by law any objection that it or he may now or hereafter have to the laying of
the venue of any judicial proceeding brought in such courts and any claim that
any such judicial proceeding has been brought in an inconvenient forum. The
foregoing consent to jurisdiction shall not constitute general consent to
service of process in the State of New York for any purpose except as provided
above and shall not be deemed to confer rights on any person other than the
respective parties to this Agreement.
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(e) The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement was not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof in addition to any other remedy to
which they are entitled at law or in equity.
(f) This Agreement may not be amended or modified without
the written consent of the Company, and the holders of at least a majority of
the Registrable Securities then outstanding.
(g) Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof. No waiver shall be effective
unless and until it is in writing and signed by the party granting the waiver.
(h) This Agreement may be executed 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.
(i) The Company shall not grant to any third party, other
than the Placement Agent, any registration rights more favorable than or
inconsistent with any of those contained herein, so long as any of the
registration rights under this Agreement remain in effect.
(j) If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
14. Omnibus Signature Page. This Agreement is intended to be read
and construed in conjunction with a Subscription Agreement, of even date
herewith pertaining to the issuance by the Company of the shares of Common Stock
to investors pursuant to the Memorandum. Accordingly, pursuant to the terms and
conditions of this Agreement and such related agreements it is hereby agreed
that the execution by Investors of the Subscription Agreement, in the place set
forth therein, shall constitute their agreement to be bound by the terms and
conditions hereof and the terms and conditions of the Subscription Agreement
with the same effect as if each of such separate but related agreement were
separately signed.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
VISION ACQUISITION III, INC.
By: /s/ Antti William Uusiheimala
------------------------------------
Antti William Uusiheimala, President
See Omnibus Signature Page to Subscription Agreement for Investors' Signatures
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