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EXHIBIT 2(k)(vii)
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of this
30th day of August, 1995 and between NETTECH, INC., a North Carolina
corporation maintaining its principal office in Wake County, North Carolina
(the "Company"), and the undersigned investors in Series A Preferred Stock of
the Company (individually, an "Investor" and collectively, the "Investors").
WHEREAS, the Investors have purchased shares of the Company's Series
A Preferred Stock, no par value per share (the "Series A Preferred Stock"); and
WHEREAS, the Company and the Investors have agreed to provide the
Investors with certain rights relating to the registration and sale of the
capital stock of the Company, together with rights to certain reports of the
Company; and
NOW, THEREFORE, in consideration of the investments being made by the
Investors and of the covenants and promises contained herein, the parties agree
as follows:
ARTICLE 1 - REGISTRATION RIGHTS
1.1 Definitions. For purposes of this Article 1, the following
terms shall have the following respective meanings:
(a) "Act" shall mean the Securities Act of 1933, as amended, or
any similar federal statute enacted hereafter, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect from time to
time.
(b) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Act.
(c) The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Act and the declaration or ordering of effectiveness of
such registration statement by the Commission.
(d) "Registrable Securities" shall mean (i) shares of Series A
Preferred Stock which are owned by the undersigned Investors on the date of
executing this Agreement, and (ii) shares of Series A Preferred Stock issued as
a dividend or other distribution with respect to, or in exchange or in
replacement of, any such Series A Preferred Stock (securities shall be deemed
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to be owned for this purpose if an agreement for their purchase has been
executed). The term Registrable Securities shall also refer to any common
stock into which the Series A Preferred Stock of an undersigned Investor has
been converted.
1.2 Piggyback Registration. Subject to Section 1.8 of this
Agreement, if at any time the Company proposes to register any of its
securities under the Act, either for its own account or for the account of
others, in connection with the public offering of such securities solely for
cash, on a registration form that would also allow the registration of
Registrable Securities, the Company shall, each such time, promptly give each
Investor written notice of such proposal. This provision shall not apply to a
registration solely of securities issued or issuable in connection with any
stock option plan or other employee benefit plan or in connection with a merger
or acquisition. Upon receipt by the Company of the written request of any
Investor given within ten (10) days after mailing of any such notice by the
Company, the Company shall use its best efforts to cause to be included in such
registration under the Act all the Registrable Securities that each such
Investor has requested be registered.
1.3 Obligations of the Company. Whenever required under this
Agreement to use its best efforts to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration statement
covering such Registrable Securities and use its best efforts to cause such
registration statement to be declared effective by the Commission as
expeditiously as possible and to keep such registration effective until the
earlier of (i) the date when all Registrable Securities covered by the
registration statement have been sold or (ii) 180 days from the effective date
of the registration statement.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to such registration statement as may be necessary to
keep such registration statement effective during the period referred to in
Section 1.3(a) and to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement, and cause
the prospectus to be supplemented by any required prospectus supplement, and as
so supplemented to be filed with the Commission pursuant to Rule 424 under the
Act.
(c) Furnish to the selling Investors such numbers of copies of
such registration statement, each amendment thereto, the prospectus included in
such registration statement (including each preliminary prospectus), and each
supplement thereto as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
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(d) Use its best efforts to register and qualify the Registrable
Securities under the securities laws of such jurisdictions in which the Company
shall register securities to be sold by the Company pursuant to the same
registration under the Act.
(e) Promptly notify each selling Investor of such Registrable
Securities at any time when a prospectus relating thereto is required to be
delivered under the Act of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading and, at the request of any such Investor, the Company will
prepare promptly a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not misleading.
(f) Provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement.
(g) Enter into underwriting agreements and related agreements in
customary form for a primary offering.
(h) Make available for inspection by any selling Investor of
Registrable Securities, any underwriter participating in any disposition
pursuant to such registration statement and any attorney, accountant or other
agent retained by any such selling Investor or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the officers, directors, employees and independent accountants of the
Company to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
(i) Promptly notify the selling Investors of Registrable
Securities and the underwriters, if any, of the following events and (if
requested by any such person) confirm such notification in writing: (1) the
filing of the prospectus or any prospectus supplement and the registration
statement and any amendment or post-effective amendment thereto and, with
respect to the registration statement or any post-effective amendment thereto,
the declaration of the effectiveness of such documents, (2) any requests by the
Commission for amendments or supplements to the registration statement or the
prospectus or for additional information, (3) the issuance of any stop order
suspending the effectiveness of the registration statement, and (4) the receipt
by the Company of any notification with respect to the suspension
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of the qualification of the Registrable Securities for sale in any
jurisdiction.
(j) Whenever any provision of this Agreement requires the
Company to furnish any information to the Investors or the agents or
representatives of the Investors, the Company may require any such person or
entity to execute and deliver a reasonable confidentiality agreement, agreement
to refrain from trading or any other agreement necessary or prudent to protect
the Company or its officers, directors and employees against xxxxxxx xxxxxxx
liabilities and may restrict access to confidential trade secret information.
1.4 Furnish Information. In the event of any registration by the
Company (whether or not the Registrable Securities of any Investor are included
therein), the Investors shall furnish to the Company such information regarding
them, the Registrable Securities and other securities of the Company held by
them, and the intended method of disposition of such Registrable Securities as
the Company shall reasonably request and as shall be required in connection
with the action to be taken by the Company. It shall be a condition precedent
to the obligation of the Company to cause any registration pursuant to this
Agreement to have become effective for the Investors to have exercised their
rights of conversion with respect to any Registrable Securities proposed to be
registered.
1.5 Suspension of Disposition of Registrable Securities. Each
selling Investor of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 1.3(e) or 1.3(i) (2),
(3) or (4) hereof, such Investor will forthwith discontinue disposition of
Registrable Securities until such Investor's receipt of copies of a
supplemented or amended prospectus contemplated by Section 1.3(e) hereof, or
until it is advised in writing by the Company that the use of the prospectus
may be resumed, and has received copies of any additional or supplemental
filings which are incorporated by reference in the prospectus, or in the case
of Section 1.3(i) (2), (3) or (4), until the Company notifies the Investor in
writing that sales of Registrable Securities may continue. If so directed by
the Company, such Investor will deliver to the Company (at the expense of the
Company) all copies, other than permanent file copies then in such Investor's
possession, of the prospectus covering such Registrable Securities current at
the time of receipt of such notice.
1.6 Expenses of Registration.
The Investors shall bear the fees and disbursements of their own counsel
and shall bear any additional registration and qualification fees and expenses
(including underwriters'
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discounts and commissions), and any additional costs and disbursements of
counsel for the Company that result solely from the inclusion of Registrable
Securities held by the Investors in such registration, with such additional
expenses of the registration being borne by all selling Investors pro rata on
the basis of the total number of Registrable Securities so registered;
provided, however, that if any such cost or expense is attributable solely to
one selling Investor and does not constitute a normal cost or expense of a
registration, such cost or expense shall be allocated solely to that selling
Investor.
1.7 Underwriting Requirements; Priorities.
(a) The Company will have the right to select the investment
banker(s) and manager(s) to administer any offering to which this Agreement is
applicable. If a registration is an underwritten primary registration on
behalf of the Company (without regard to registration rights arising hereunder
or under any other agreement), and the managing underwriters advise the Company
in writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold at the
desired price in such offering, the Company will include in such registration
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested to be included in such registration, pro rata
among the Investors thereof on the basis of the number of Registrable
Securities owned by them and (iii) third, other securities requested to be
included in such registration, pro rata among the holders thereof on the basis
of the number of shares requested to be registered. If a registration is an
underwritten secondary registration on behalf of holders of securities of the
Company, or a combined primary and secondary offering, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold at the desired price in such offering, the Company will
include in such registration (i) first, securities the Company proposes to
sell, (ii) second, the securities requested to be included therein by holders
with contractual registration rights other than the Investors, pro rata among
the holders of such securities on the basis of the number of shares requested
to be included therein, (iii) third, the securities requested to be included
therein by Investors of Registrable Securities, pro rata among the holders of
such Registrable Securities on the basis of the number of shares requested to
be included therein, and (iv) fourth, other securities requested to be included
in such registration, including securities to be sold by holders without
contractual registration rights.
(b) No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's securities on the
basis provided in any underwriting
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arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
1.8 Limitation of the Company's Obligations.
(a) The Company may, in its sole discretion, (i) not comply with
this Agreement in the case of its initial public offering registered under the
Act, and (ii) terminate this Agreement after sale or other transfer, whether by
registration, under Rule 144 or otherwise, by the Investors of at least Fifty
(50%) Percent of the aggregate number of Registrable Securities held by
Investors at the time of the Company's initial public offering.
(b) The Company shall not be obligated under this Agreement to
register or include in any registration Registrable Securities that any
Investor has requested to be registered if the Company shall furnish such
Investor with a written opinion of counsel reasonably satisfactory to such
Investor, that all Registrable Securities that such Investor holds may be
publicly offered, sold and distributed without registration under the Act
pursuant to Rule 144 promulgated by the Commission under the Act without
restriction as to the amount of securities that can be sold.
1.9 Lockup Agreement. For so long as the Investor has the right
to have Registrable Securities included in any registration pursuant to this
Agreement, the Investor agrees in connection with any registration of the
Company's securities upon the request of the underwriters managing any
underwritten offering of the Company's securities, not to sell, make any short
sale of, pledge, grant any option for the purchase of or otherwise dispose of
any Registrable Securities (other than those included in the registration)
without the prior written consent of the Company or such underwriters, as the
case may be, during the seven days prior to and during the 180-day period
beginning on the effective date of such registration as the Company or the
underwriters may specify. This provision shall apply whether or not any
Registrable Securities of the Investor are included in the offering.
1.10 Transfer of Registration Rights. Provided that the Company
is given written notice by the Investor at the time of such transfer stating
the name and address of the transferee and identifying the securities with
respect to which the rights under this Agreement are being assigned, the
registration rights under this Agreement may be transferred in whole or in part
at any time to any transferee of Registrable Securities.
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1.11 Indemnification and Contribution. In the event any Registrable
Securities are included in a registration statement under this Agreement:
(a) To the full extent permitted by law, the Company will, and
hereby does, indemnify and hold harmless each Investor whose Registrable
Securities are included in a registration, each director, officer, partner,
employee, or agent for such Investor, any underwriter (as defined in the Act)
for such Investor, and each person, if any, who controls such Investor or
underwriter within the meaning of the Act, against any losses, claims, damages
or liabilities, joint or several, to which they may become subject under the
Act and applicable state securities laws insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based on any untrue or alleged untrue statement of any material fact contained
in such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein in light of the circumstances under
which they were made or necessary to make the statements therein not misleading
or arise out of any violation by the Company of any rule or regulation
promulgated under the Act applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration; and
will reimburse each such person or entity for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided, however, that the
indemnity shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld) nor
shall the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in connection with such registration statement, preliminary prospectus,
final prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by or on behalf of any such Investor, underwriter or
controlling person.
(b) To the full extent permitted by law, each Investor whose
Registrable Securities are included in a registration under this Agreement,
severally and not jointly, will indemnify and hold harmless the Company, each
of its directors, each of its officers who have signed the registration
statement, each person, if any, who controls the Company within the meaning of
the Act, and any underwriter for the Company (within the meaning of the Act),
each other selling Investor and each person, if any, who
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controls such other selling Investor or underwriter within the meaning of the
Act against any losses, claims, damages or liabilities, joint or several, to
which the Company or any such director, officer, controlling person, selling
Investor or underwriter may become subject, under the Act and applicable state
securities laws, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in such registration statement, preliminary or final
prospectus, or amendments or supplements thereto, in reliance upon and in
conformity with written information furnished by such Investor expressly for
use in connection with such registration; and each such Investor will reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer, controlling person, selling Investor or underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of such Investor (which
consent shall not be unreasonably withheld).
In no event shall the liability by reason of this contractual
indemnity of any selling Investor of Registrable Securities hereunder be
greater than the dollar amount of the proceeds received by such Investor upon
the sale of the Registrable Securities giving rise to such indemnification
obligation. Any Investor required to indemnify the Company as provided above
shall cease to have the right to participate in any other registration pursuant
to this Agreement.
1.12 Remedies. In addition to being entitled to exercise all
rights provided in this Article as well as all rights granted by law, including
recovery of damages, the Company and each Investor of Registrable Securities
will be entitled to specific performance of its rights under this Agreement.
The Company and each Investor agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees not to raise the defense in any
action for specific performance that a remedy at law would be adequate.
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ARTICLE 2 -- MISCELLANEOUS
2.1 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may be given, by written consent of the Company and the Investors of at least
seventy percent (70%) of the outstanding Registrable Securities.
2.2 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
2.3 Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
2.4 Notices. All notices required or permitted to be sent shall
be sent to the addresses of the parties set forth on their respective signature
pages, or to such other address as any party shall provide to the other parties
in a notice sent in accordance with this Agreement. Any notice sent by
registered or certified mail, return receipt requested, or by Federal Express,
shall be deemed to have been received by the party to whom it was sent one day
following the date it was sent. Any notice sent by any other means shall be
deemed to have been received when it is actually received at the address
provided above.
2.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of North Carolina.
2.6 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
2.7 Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect to the Registrable Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
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matter. Nothing in this Agreement shall preclude the Company from entering
into any other agreement having the same or different terms with any Investor
or any third party with respect to registration rights or related matters.
2.8 Parties Benefitted. Nothing in this Agreement, express or
implied, is intended to confer upon any third party any rights, remedies,
obligations or liabilities.
[COUNTERPART SIGNATURE PAGES ATTACHED]
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SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the undersigned, through its duly authorized
representative, has executed this Agreement under seal as of the date provided
below:
NETTECH, INC.
By:_________________________________
Title:___________________
Date:_______________________________
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxx, X.X. 00000
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SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the undersigned Investors have executed this
Agreement under seal as of the date provided below:
SOUTHEAST INTERACTIVE TECHNOLOGY
FUND I, LLC
By:_________________________________(SEAL)
Xxxxx X. Xxxxxx
0000 X. Xxxx Xxxxxx
Xxxxx 000
Xxxxxx, XX 00000
____________________________________(SEAL)
Xxxx X. Xxxxxx
000 Xxxxxxx Xxxxx
Xxxx, XX 00000
____________________________________(SEAL)
Xxxxx X. Xxxxxxx
000 Xxxxxxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
____________________________________(SEAL)
Xxxx X. Xxxxxxx
0000 Xxxxxxxxx XX Xx.
Xxxxxxxxxx, XX 00000
____________________________________(SEAL)
Xxxx X. Xxxxxxxxx
0000 X. Xxxx Xxxxx Xxxxx
Xxxx, XX 00000
____________________________________(SEAL)
Xxx X. Xxxxxx
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
____________________________________(SEAL)
Xxxxxxxxxxx X. Xxxx
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
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____________________________________(SEAL)
Xxxx X. Xxxxx
000 Xxxxx Xxxx
Xxxxxx, XX 00000
____________________________________(SEAL)
Xxxx X. Xxxxxxxxx
0000 Xxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
____________________________________(SEAL)
Xxxxx X. Xxxxx
000 Xxxxxxxx Xxx
Xxxxxx, XX 00000-0000
____________________________________(SEAL)
Xxxxxx X. Price
00000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
____________________________________(SEAL)
Xxxxxx X. Xxxxxxxxxx
0000 Xxxxx Xxxxx Xx., X
Xxxx, XX 00000-0000
____________________________________(SEAL)
Xxxxxxxxxxx X. Xxxxx
c/o Moore & Xxx Xxxxx
000 X. Xxxxx Xxxxxx
Xxxxx 00
Xxxxxxxxx, XX 00000
____________________________________(SEAL)
X. Xxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
____________________________________(SEAL)
Xxxxx Xxxxx
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
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____________________________________(SEAL)
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxxx X. Xxxxxxxxxx
as Joint Tenants with Right of Survivorship
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
____________________________________(SEAL)
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxxx X. Xxxxxxxxxx
as Joint Tenants with Right of Survivorship
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
____________________________________(SEAL)
E.L. Xxxxx
Xxxx Xxxxxx Xxx 000
Xxxxxx Xxxx, XX 00000-0000
____________________________________(SEAL)
Xxxxx X. Xxxxxx, Xx.
Wachovia Capital Management
Post Office Box 3099 (MC32121)
Xxxxxxx-Xxxxx, XX 0000-0000
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