Exhibit 10.77
ORYX TECHNOLOGY CORPORATION
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COMMON STOCK AND WARRANT
PURCHASE AGREEMENT
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January 29, 2004
SECTION 1 Authorization and Sale of Common Stock and Warrants........................................1
1.1 Authorization..................................................................................1
1.2 Sale of Common Stock and Warrants..............................................................1
SECTION 2 Closing Date; Delivery.....................................................................1
2.1 Closing Date...................................................................................1
2.2 Delivery.......................................................................................1
SECTION 3 Representations and Warranties of the Company..............................................2
3.1 Organization and Standing......................................................................2
3.2 Corporate Power................................................................................2
3.3 Capitalization.................................................................................2
3.4 Authorization..................................................................................3
3.5 Financial Statements...........................................................................3
3.6 Litigation.....................................................................................3
3.7 Offering.......................................................................................3
3.8 Brokers or Finders.............................................................................4
SECTION 4 Representations and Warranties of the Purchasers...........................................4
4.1 Accredited Investor; Experience................................................................4
4.2 Investment.....................................................................................4
4.3 Rule 144.......................................................................................4
4.4 Further Limitations on Disposition.............................................................5
4.5 Legends........................................................................................5
4.6 Access to Data.................................................................................5
4.7 Authorization..................................................................................5
4.8 Brokers or Finders.............................................................................5
4.9 Tax Liability..................................................................................5
SECTION 5 Conditions of the Purchasers' Obligations at Closing.......................................6
5.1 Representations and Warranties Correct.........................................................6
5.2 Covenants......................................................................................6
5.3 Compliance Certificate.........................................................................6
5.4 Blue Sky.......................................................................................6
5.5 Registration Rights Agreement..................................................................6
5.6 Oryx Ventures, LLC Waiver......................................................................6
2
SECTION 6 Conditions of the Company's Obligations at Closing.........................................6
6.1 Representations and Warranties Correct.........................................................6
6.2 Covenants......................................................................................7
6.3 Blue Sky.......................................................................................7
6.4 Registration Rights Agreement..................................................................7
SECTION 7 Covenants of the Purchasers................................................................7
SECTION 8 Miscellaneous..............................................................................7
8.1 Governing Law..................................................................................7
8.2 Survival.......................................................................................7
8.3 Successors and Assigns.........................................................................7
8.4 Entire Agreement; Amendment....................................................................7
8.5 Notices, Etc...................................................................................8
8.6 California Corporate Securities Law............................................................8
8.7 Expenses.......................................................................................8
8.8 Counterparts...................................................................................8
8.9 Severability...................................................................................8
8.10 Titles and Subtitles...........................................................................9
..............................................................................................10
SCHEDULES AND EXHIBITS
Schedule I........Purchasers
A Form of Warrant
B Schedule of Exceptions
C Amended and Restated Certificate of Incorporation and Bylaws
D Form of Amended and Restated Registration Rights Agreement
E Financial Statements
F Waiver by Oryx Ventures, LLC
3
ORYX TECHNOLOGY CORPORATION
COMMON STOCK AND WARRANT PURCHASE AGREEMENT
This Common Stock and Warrant Purchase Agreement is made as of January
29, 2004 by and between Oryx Technology Corporation, a Delaware corporation (the
"Company"), and the purchasers named on Schedule I attached hereto (each, a
"Purchaser" and, together, the "Purchasers").
SECTION 1
Authorization and Sale of Common Stock and Warrants
1.1 Authorization. On or before the Closing (as defined in Section 2
below), the Company will authorize the sale and issuance of up to 360,000 shares
(the "Shares") of its Common Stock (the "Common Stock") and the sale and
issuance of warrants in substantially the form attached hereto as Exhibit A
(collectively the "Warrants") to purchase up to an aggregate of 90,000 shares of
Common Stock at $6.00 per share.
1.2 Sale of Common Stock and Warrants. Subject to the terms and
conditions hereof, the Company will issue and sell to each Purchaser and each
Purchaser will buy from the Company severally, and not jointly, (i) that number
of shares of Common Stock at a purchase price of $2.50 per share and (ii) a
Warrant to purchase that number of shares (at $6.00 per share) of Common Stock,
each as set forth next to such Purchaser's name on Schedule I. The obligation of
each Purchaser to buy is separate and independent of the obligations to buy of
all the other Purchasers.
SECTION 2
Closing Date; Delivery
2.1 Closing Date. The closing of the purchase and sale of the Common
Stock and the Warrants hereunder shall be held at the offices of Manatt, Xxxxxx
& Xxxxxxxx, LLP, 1001 Page Xxxx Xxxx, Xxxxxxxx 0, Xxxx Xxxx, Xxxxxxxxxx at 10:00
a.m., local time, on January 29, 2004 (the "Closing") or at such other time and
place upon which the Company and Purchasers purchasing fifty percent (50%) or
more of the shares of Common Stock to be sold pursuant to this Agreement shall
agree. The date of such Closing is referred to herein as the "Closing Date."
2.2 Delivery. At the Closing, the Company will deliver to each
Purchaser (a) a certificate or certificates, registered in the Purchaser's name
representing the number of Shares purchased by such Purchaser at the Closing as
set forth on Schedule I and (b) a Warrant to purchase that number of shares of
Common Stock as set forth on Schedule I, against payment of the purchase prices
4
therefor by (i) check payable to the Company or (ii) wire transfer pursuant to
the Company's instructions.
SECTION 3
Representations and Warranties of the Company
Except as set forth on the Company's Schedule of Exceptions attached
hereto as Exhibit B, the Company hereby represents and warrants to each
Purchaser as follows:
3.1 Organization and Standing. The Company is a corporation duly
organized and existing under, and by virtue of, the laws of the State of
Delaware and is in good standing under such laws. The Company has the requisite
corporate power and authority to own and operate its properties and assets and
to carry on its business as presently conducted and as proposed to be conducted.
The Company is presently qualified to do business in each state in which the
failure to be so qualified would have a material adverse effect on the Company's
business as now conducted. The Company has made available to each Purchaser
copies of its Amended and Restated Certificate of Incorporation, as currently in
effect, and its Bylaws, as amended to date, attached hereto as Exhibit C. Said
copies are true, correct, and complete and contain all amendments through the
Closing Date.
3.2 Corporate Power. The Company will have at the Closing Date all
requisite legal and corporate power and authority to execute and deliver this
Agreement and the Second Amended and Restated Registration Rights Agreement in
substantially the form attached hereto as Exhibit D (the "Registration Rights
Agreement"); to sell and issue the Shares and Warrants hereunder; to issue the
Common Stock upon exercise of the Warrants and to carry out and perform its
obligations under the terms of this Agreement and the Registration Rights
Agreement.
3.3 Capitalization. The authorized capital stock of the Company
consists of 25,000,000 shares of Common Stock, of which 2,461,335 shares are
issued and outstanding as of the Closing Date; and 3,000,000 shares of Preferred
Stock, of which 45,000 shares have been designated "Series A Preferred," 750 of
which are issued and outstanding. The outstanding shares of capital stock of the
Company have been duly authorized and validly issued, and are fully paid and
nonassessable. The Company has presently reserved 339,128 shares of its Common
Stock for issuance to employees, consultants, and directors under its stock
option plans. As of the date of this Agreement, there were options outstanding
under the Company's stock option plans to purchase an aggregate of 219,151
shares of Common Stock and 119,977 remained available for future grant. The
Company has outstanding warrants to purchase a total of 148,954 shares of Common
Stock. Except as otherwise set forth in this Agreement and the Registration
Rights Agreement, no options, warrants, subscriptions, or purchase rights of any
nature (including any conversion or preemptive rights) to acquire from the
Company shares of its capital stock or other securities are authorized, issued,
or outstanding, nor is the Company obligated under its charter documents or
under any agreement by which the Company is bound to issue shares of its capital
stock or other securities except as contemplated by this Agreement. Except as
provided in the Amended and Restated Certificate of Incorporation, this
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Agreement and the Registration Rights Agreement, there are no agreements,
understandings, trusts, or other collaborative arrangements or understandings
between the Company or any stockholder or, to the Company's knowledge, among any
stockholders, concerning the voting of the capital stock of the Company.
3.4 Authorization. All corporate action on the part of the Company, its
directors, and its stockholders necessary for the authorization, execution,
delivery, and performance of this Agreement and the Registration Rights
Agreement and the authorization, sale, issuance, and delivery of the Shares and
the Warrants (and the Common Stock issuable upon exercise of the Warrants) has
been taken or will be taken prior to the Closing. This Agreement and the
Registration Rights Agreement, when executed and delivered by the Company, shall
constitute valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
relating to or affecting the enforcement of creditors' rights. The Shares and
the shares of Common Stock issuable upon exercise of the Warrants when issued in
compliance with the provisions of this Agreement, the Warrants, and the Amended
and Restated Certificate of Incorporation, will be validly issued, fully paid,
and nonassessable and free and clear of any liens or encumbrances, other than
any liens or encumbrances created by or imposed upon the holders; provided,
however, that the Shares and Warrants (and the Common Stock issuable upon
exercise thereof) may be subject to restrictions on transfer under applicable
state and/or federal securities laws.
3.5 Financial Statements. Attached hereto as Exhibit E are the
Company's unaudited balance sheet as of and unaudited statement of operations
and statement of cash flows for the three-month period ended November 30, 2003
and the Company's audited balance sheet as of and the audited statement of
operations and statement of cash flows for the twelve-month period ended
February 28, 2003 (collectively, the "Financial Statements"). The Financial
Statements are complete and correct, have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated, and fairly present the financial position of
the Company and its results of operations as of the respective dates and for the
respective periods indicated. Except as set forth in the Financial Statements,
the Company has no material liabilities, contingent of otherwise, other than (i)
liabilities incurred in the ordinary course of business subsequent to November
30, 2003, and (ii) obligations under contracts and commitments incurred in the
ordinary course of business and not required under generally accepted accounting
principles to be reflected in the Financial Statements, which, in both cases,
individually or in the aggregate, are not material to the financial condition or
operating results of the Company. Except as disclosed in the Financial
Statements, the Company is not a guarantor or indemnitor of any indebtedness of
any other person, firm or corporation.
3.6 Litigation. There is no action, suit, proceeding or, to the
Company's knowledge, investigation pending against the Company that questions
the validity of this Agreement, the Registration Rights Agreement, or the right
of the Company to enter into such agreements, or to consummate the transactions
contemplated hereby or thereby, or that might result, either individually or in
the aggregate, in any material adverse changes in the assets, condition, affairs
or prospects of the Company, financially or otherwise, nor is the Company aware
that there is any basis for the foregoing. The Company is not a party or subject
to the provisions of any order, writ, injunction, judgment or decree of any
court or government agency or instrumentality. There is no action, suit,
6
proceeding or investigation by the Company currently pending or that the Company
intends to initiate.
3.7 Offering. Subject to the accuracy of the Purchasers'
representations in Section 4 hereof and in written response to the Company's
inquiries, the offer, sale and issuance of the Shares and the Warrants to be
issued in conformity with the terms of this Agreement and the issuance of the
Common Stock upon exercise of the Warrants constitute transactions exempt from
the registration requirements of Section 5 of the Securities Act of 1933, as
amended (the "Securities Act") and all applicable state blue sky laws, and
neither the Company nor any authorized agent acting on its behalf will take any
action hereafter that would cause the loss of such exemption.
3.8 Brokers or Finders. The Company has not incurred, and will not
incur, directly or indirectly, as a result of any action taken by the Company,
any liability for brokerage or finders' fees or agents' commissions or any
similar charges in connection with this Agreement.
SECTION 4
Representations and Warranties of the Purchasers
Each Purchaser hereby represents and warrants to the Company with
respect to the purchase of the Shares and the Warrants as follows:
4.1 Accredited Investor; Experience. Such Purchaser is an "accredited
investor" as that term is defined in Rule 501 under the Securities Act. It has
substantial experience in evaluating and investing in private placement
transactions of securities in companies similar to the Company so that it is
capable of evaluating the merits and risks of its investment in the Company and
has the capacity to protect its own interests. It is capable of bearing a
complete loss of its investment in the Company.
4.2 Investment. Such Purchaser is acquiring the Shares, Warrants and
the Common Stock issuable upon exercise of the Warrants as an investment for its
own account, not as a nominee or agent, and not with the view to, or for resale
in connection with, any distribution thereof. It understands that the Shares,
Warrants and the Common Stock issuable upon exercise of the Warrants have not
been and will not be registered under the Securities Act by reason of a specific
exemption from the registration provisions of the Securities Act, the
availability of which depends upon, among other things, the bona fide nature of
the investment intent and the accuracy of such Purchaser's representations as
expressed herein and in response to the Company's inquiries.
4.3 Rule 144. Such Purchaser acknowledges that the Shares, Warrants and
the Common Stock issuable upon exercise of the Warrants must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from such registration is available. It is aware of the provisions
of Rule 144 promulgated under the Securities Act, which permit limited resale of
shares purchased in a private placement, subject to the satisfaction of certain
conditions, including, among other things, the existence of a public market for
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the shares, the availability of certain current public information about the
Company, the resale occurring not less than one year after a party has purchased
and paid for the security to be sold, the sale's being effected through a
"broker's transaction" or in transactions directly with a "market maker" and the
number of shares being sold during any three-month period not exceeding
specified limitations.
4.4 Further Limitations on Disposition. Without in any way limiting the
representations set forth above, such Purchaser further agrees not to make any
disposition of all or any portion of the Shares, the Warrants and the Common
Stock issuable upon exercise of the Warrants except in compliance with Sections
2, 3 and 4 of the Registration Rights Agreement.
4.5 Legends. Such Purchaser understands that the Shares, the Warrants
and the Common Stock issuable upon exercise of the Warrants, and any securities
issued in respect thereof or exchange therefor, may bear legends similar to one
or all of the following legends:
(a) "THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE,
PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED."
(b) Any legend required by the laws of the State of
California.
(c) Any legend required by the Blue Sky laws of any other
state to the extent such laws are applicable to the shares represented by the
certificate so legended.
4.6 Access to Data. Such Purchaser has had an opportunity to discuss
the Company's business, management, and financial affairs with its management
and the opportunity to review the Company's facilities. It has also had an
opportunity to ask questions of officers of the Company, which questions were
answered to its satisfaction. It understands that such discussions, as well as
any written information issued by the Company, were intended to describe certain
aspects of the Company's business and prospects but were not a thorough or
exhaustive description.
4.7 Authorization. This Agreement and the Registration Rights Agreement
when executed and delivered by such Purchaser, will constitute valid and legally
binding obligations of such Purchaser, enforceable against such Purchaser in
accordance with their terms.
4.8 Brokers or Finders. Such Purchaser has not, and will not, incur,
directly or indirectly, as a result of any action taken by such Purchaser, any
liability for brokerage or finders' fees or agents' commissions or any similar
charges in connection with this Agreement.
4.9 Tax Liability. Such Purchaser has reviewed with its own tax
advisors the federal, state, local, and foreign tax consequences of this
investment and the transactions contemplated by this Agreement. It has relied
solely on such advisors and not on any statements or representations of the
Company or any of its agents. It understands that it (and not the Company) shall
8
be responsible for its own tax liability that may arise as a result of this
investment or the transactions contemplated by this Agreement.
SECTION 5
Conditions of the Purchasers' Obligations at Closing
The obligations of the Purchasers to purchase the Shares and the
Warrants at the Closing are, at the option of the Purchasers, subject to the
fulfillment of the following conditions as of the Closing Date:
5.1 Representations and Warranties Correct. The representations and
warranties made by the Company in Section 3 hereof shall have been true and
correct when made and shall be true and correct as of the Closing Date as if
made on the Closing Date (subject in each case to the exceptions set forth in
the Schedule of Exceptions).
5.2 Covenants. All covenants, agreements, and conditions contained in
this Agreement to be performed by the Company on or prior to such Closing Date
shall have been performed or complied with.
5.3 Compliance Certificate. The Company shall have delivered to the
Purchasers a certificate of the Company, executed by the President, or any Vice
President of the Company, dated the Closing Date, and certifying, among other
things, to the fulfillment of the conditions specified in Sections 5.1 and 5.2
of this Agreement.
5.4 Blue Sky. The Company shall have obtained all necessary Blue Sky
law permits and qualifications, or have the availability of exemptions
therefrom, required by any state for the offer and sale of the Shares and the
Warrants and the issuance of the Common Stock issuable upon exercise of
Warrants.
5.5 Registration Rights Agreement. The Company shall have executed and
delivered the Registration Rights Agreement.
5.6 Oryx Ventures, LLC Waiver. The Company shall have received from
Oryx Ventures, LLC ("Oryx Ventures") a waiver in the form attached hereto as
Exhibit F, which form is reasonably satisfactory to the Purchasers.
SECTION 6
Conditions of the Company's Obligations at Closing
The Company's obligation to sell and issue the Shares and Warrants is,
at the option of the Company, subject to the fulfillment of the following
conditions as of each Closing Date:
6.1 Representations and Warranties Correct. The representations and
warranties made by the Purchasers in Section 4 hereof shall have been true and
9
correct in all material respects when made and shall be true and correct in all
material respects on the Closing Date as if made on the Closing Date.
6.2 Covenants. All covenants, agreements, and conditions contained in
this Agreement to be performed by the Purchasers on or prior to the Closing Date
shall have been performed or complied with in all material respects.
6.3 Blue Sky. The Company shall have obtained all necessary Blue Sky
law permits and qualifications, or have the availability of exemptions
therefrom, required by any state for the offer and sale of the Shares and the
Warrants and the issuance of the Common Stock issuable upon exercise of the
Warrants.
6.4 Registration Rights Agreement. The Purchasers shall have executed
and delivered the Registration Rights Agreement.
SECTION 7
Covenants of the Purchasers
Except as may be required by any law or regulation, each Purchaser
agrees that it will maintain the confidentiality of any information obtained by
it pursuant to this Agreement or by virtue of its relationship as a stockholder
of the Company, which is not otherwise lawfully available from other sources,
subject to the disclosure of information of a non-technical nature, including
summary financial information, which such Purchaser is obligated to disclose to
its partners and/or stockholders.
SECTION 8
Miscellaneous
8.1 Governing Law. This Agreement shall be governed in all respects by
the internal laws of the State of California, without regard to the choice of
law provisions thereof.
8.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by the Purchasers and the
closing of the transactions contemplated hereby.
8.3 Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto;
provided, however, that the rights of the Purchasers to purchase the Shares
shall not be assignable without the prior written consent of the Company.
8.4 Entire Agreement; Amendment. This Agreement, the Registration
Rights Agreement, and the other documents delivered pursuant hereto at the
Closing constitute the full and entire understanding and agreement among the
parties with regard to the subjects hereof and thereof, and no party shall be
10
liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or therein.
Except as expressly provided herein, neither this Agreement nor any term hereof
may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought.
8.5 Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger,
addressed (i) if to a Purchaser, to the Purchaser's address set forth on the
signature page hereof, or to such other address as such Purchaser shall have
furnished to the Company in writing, (ii) if to any other holder of any Shares,
to such address as such holder shall have furnished the Company in writing, or,
until any such holder so furnishes an address to the Company, then to the
address of the last holder of such Shares who has so furnished an address to the
Company, (iii) if to the Company, to its principal executive offices, located at
0000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxxxxxxxxx 00000, and addressed to
the attention of the Chief Executive Officer, or to such other address as the
Company shall have furnished to the Purchasers. Each such notice or other
communication shall for all purposes of this Agreement be treated as effective
or having been given when delivered if delivered personally, or, if sent by
mail, at the earlier of its receipt or 72 hours after the same has been
deposited in a regularly maintained receptacle for the deposit of the United
States mail, addressed and mailed as aforesaid.
8.6 California Corporate Securities Law. THE SALE OF THE SECURITIES
WHICH ARE THE SUBJECT OF THIS AGREEMENT HAS NOT BEEN QUALIFIED WITH THE
COMMISSIONER OF CORPORATIONS OF THE STATE OF CALIFORNIA AND THE ISSUANCE OF SUCH
SECURITIES OR THE PAYMENT OR RECEIPT OF ANY PART OF THE CONSIDERATION THEREFOR
PRIOR TO SUCH QUALIFICATION IS UNLAWFUL UNLESS THE SALE OF SECURITIES IS EXEMPT
FROM QUALIFICATION BY SECTION 25100, 25102 OR 25105 OF THE CALIFORNIA
CORPORATIONS CODE. THE RIGHTS OF ALL PARTIES TO THIS AGREEMENT ARE EXPRESSLY
CONDITIONED UPON SUCH QUALIFICATION BEING OBTAINED, UNLESS THE SALE IS SO
EXEMPT.
8.7 Expenses. The Company and the Purchasers shall each bear their own
legal fees and other expenses with respect to this transaction.
8.8 Counterparts. This Agreement may be executed in any number of
counterparts, and by facsimile, each of which shall be enforceable against the
parties actually executing such counterparts, and all of which together shall
constitute one instrument.
8.9 Severability. In case any one or more of the provisions contained
in this Agreement shall for any reason be held invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision of this Agreement and such invalid,
illegal, or unenforceable provision shall be reformed and construed so that it
will be valid, legal, and enforceable to the maximum extent permitted by law.
8.10 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
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IN WITNESS WHEREOF, this Common Stock and Warrant Purchase Agreement is
hereby executed as of the date first written above.
COMPANY: ORYX TECHNOLOGY CORPORATION
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------------------
Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
Address: 0000 Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
PURCHASERS:
NORTHLEA PARTNERS LTD.
By: /s/ Xxxx X. Xxxxxx, M. D.
------------------------------------------------
Name: Xxxx X. Xxxxxx, M.D.
Title: General Partner
Address: 0000 XX 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000
COLUMBUS NOVA INVESTMENTS A.V.V.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Partner
Address: c/o Columbus Nova, LLC
000 Xxxxxxx Xxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
12
/w/ Xxxxx Xxxxx, Xx
-----------------------------------------------------
W. XXXXX XXXXX, XX.
Address: c/o Vectra Management Group
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
-----------------------------------------------------
By: ________________________________________________
Name:
Address:
THE XXXXXXXX X. XXXXX FAMILY TRUST
By: /s/ W. Xxxxx Xxxxx Xx.
------------------------------------------------
Name: W. Xxxxx Xxxxx, Xx.
Title: Trustee
Address: c/o Vectra Management Group
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
ACOMEX EXECUTIVE PENSION FUND
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
Address: c/o Fiske PLC
Xxxxxxxxx Xxxxx Xxxxxx Xxxx
Xxxxxx XX0X 0XX
13
CRATON CAPITAL, LP
By: Craton Capital Advisors, Inc, as General Partner
By: /s/ Xxxx X. Xxxx
------------------------------------------------
Name: Xxxx X. Xxxx
Title: President
Address: c/o Vectra Management Group
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
/s/ Xxxxxx Xxxxx
------------------------------------------------
XXXXXX XXXXX
Address: 00 Xxxxxxxx Xx
Xxxxxx, XX 00000
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SCHEDULE I
================================================ ====================== ========================== =======================
NUMBER OF SHARES
NAME AND ADDRESS OF COMMON STOCK NUMBER OF
OF PURCHASER PURCHASE PRICE PURCHASED WARRANT SHARES
================================================ ====================== ========================== =======================
Northlea Partners Ltd.
0000 XX 00xx Xxxxxx
Xxxx Xxxxx, Xxxxxxx 00000 $ 50,000 20,000 5,000
Columbus Nova Investments A.V.V.
c/o Columbus Nova LLC
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 $230,000 92,000 23,000
W. Xxxxx Xxxxx, Xx.
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 $300,000 120,000 30,000
The Xxxxxxxx X. Xxxxx Family Trust
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 $100,000 40,000 10,000
Acomex Executive Pension Fund
c/o Fiske PLC
Xxxxxxxxx Xxxxx Xxxxxx Xxxx
Xxxxxx XX0X 0XX $ 50,000 20,000 5,000
Craton Capital, LP
c/o Vectra Management Group
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 $ 50,000 20,000 5,000
Xxxxxx Xxxxx
00 Xxxxxxxx Xx.
Xxxxxx, XX 00000 $120,000 48,000 12,000
TOTAL: $900,000 360,000 90,000
======== ======= ======
EXHIBIT A
---------
Form of Warrant
---------------
THIS WARRANT AND THE SECURITIES PURCHASABLE UPON ITS EXERCISE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A REGISTRATION
STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION
OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
WARRANT TO PURCHASE
COMMON STOCK OF
ORYX TECHNOLOGY CORP.
WARRANT #C -__
FOR VALUE RECEIVED, subject to the terms and conditions herein set
forth, _________________ ("Holder") is entitled to purchase from Oryx Technology
Corp., a Delaware corporation (the "Company"), at any time prior to the
Expiration Date (as defined below), at a price per share as set forth in Section
1 hereof (the "Warrant Price"), the number of fully paid and non-assessable
shares of common stock of the Company, no par value, ("Common Stock") as set
forth in Section 2 hereof (the "Shares").
1. Warrant Price. The Warrant Price for each of the Shares purchasable
hereunder shall be Six Dollars ($6.00) (the "Warrant Price"), subject to
adjustment as provided in Section 11.
2. Number of Shares. The number of Shares issuable upon exercise of
this Warrant shall be ______________, subject to adjustment as provided in
Section 11.
3. Expiration of Warrant. Subject to earlier termination in accordance
with Section 8 below, this Warrant shall expire and shall no longer be
exercisable after January ___, 2008 (the "Expiration Date"). Prior to the
Expiration Date, the Company may not call or otherwise redeem this Warrant
without the prior written consent of Holder.
4. No Fractional Shares. This Warrant may not be exercised as to
fractional Shares.
2
5. No Stockholder Rights. This Warrant shall not entitle Holder to any
of the rights of a stockholder of the Company until such time as Holder
exercises this Warrant.
6. Reservation of Shares. The Company covenants that during the period
this Warrant is exercisable it will reserve from its authorized and unissued
shares of Common Stock a sufficient number of shares to provide for the issuance
of the maximum number of shares of Common Stock issuable upon the exercise of
this Warrant. The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers to instruct the Company's transfer
agent to issue the necessary certificates for shares of Common Stock upon the
exercise of this Warrant.
3
7. Exercise of Warrant.
(a) This Warrant may be exercised by Holder, in whole or in
part, by the surrender of this Warrant at the principal office of the Company,
together with the Subscription Form attached hereto duly completed and executed,
accompanied by payment in full of the aggregate Warrant Price for the Shares
being purchased upon such exercise. In the event of exercise of this Warrant in
compliance with the provisions hereof, certificates for the Shares so purchased
shall be delivered to Holder promptly and, unless this Warrant has been fully
exercised or expired, a new Warrant representing that portion of the Shares, if
any, with respect to which this Warrant will not then have been exercised, shall
be issued to Holder. The Warrant shall be deemed to have been exercised
immediately prior to the close of business on the date of its surrender for
exercise as provided above, and Holder shall be treated for all purposes as the
holder of record of such shares as of the close of business on such date.
In lieu of exercising this Warrant pursuant to the first
paragraph of this Section 7 (a), Holder may elect to receive Shares equal to the
value of this Warrant (or any portion thereof remaining unexercised) by
surrender of this Warrant at the principal office of the Company together with
the Subscription Form, in which event the Company shall issue to Holder a number
of Shares computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of Shares to be issued to Holder.
Y = the number of Shares for which this Warrant is then being
exercised (at the date of such exercise).
A = the fair market value of one Share (at the date of such exercise).
B = the Warrant Price (as adjusted to the date of such exercise).
For purposes of this subsection fair market value of one Share shall
mean:
4
(i) The average of the closing bid and asked prices of the
Common Stock quoted in the NASDAQ National Market System, the NASDAQ
SmallCap Market or the NASDAQ OTC Bulletin Board or the closing price
quoted on any exchange on which the Common Stock is listed, whichever
is applicable, as published in the Western Edition of The Wall Street
Journal for the five (5) trading days prior to the date of
determination of the fair market value; or
(ii) If the Common Stock is not publicly traded, the per share
fair market value of the Common Stock shall be determined in good faith
by the Company's Board of Directors. If Holder disagrees with the
determination by the Board of Directors of the fair market value of the
Common Stock then such fair market value shall be determined by an
independent appraiser selected jointly by the Company and Holder. The
cost of such appraisal shall be paid equally by the Company and Holder.
(b) As promptly as practicable on or after such date, the
Company shall cause to be issued and delivered to Holder a certificate or
certificates for the number of full Shares issuable upon such exercise.
Notwithstanding the foregoing or any other provision of this Warrant, this
Warrant can be exercised in whole or in part, provided that each partial
exercise shall not be for less than one thousand (1,000) Shares at any time
unless at such time less than one thousand (1,000) such Shares are subject to
such exercise.
(c) Issuance of certificates for the Shares upon the exercise
of this Warrant shall be made without charge to the registered holder hereof for
any issue or transfer tax or other incidental expense with respect to the
issuance of such certificates, all of which taxes and expenses shall be paid by
the Company, and such certificates shall be issued in the name of the registered
holder of this Warrant or in such name or names as may be directed by the
registered holder of this Warrant; provided, however, that in the event
certificates for the Shares are to be issued in a name other than the name of
the registered holder of this Warrant, this Warrant, when surrendered for
exercise, shall be accompanied by the Assignment Form attached hereto duly
executed by Holder hereof, and provided further, that any such transfer shall
comply with Section 9 10 hereof.
8. Automatic Termination. In the event of the sale of all or
substantially all the capital stock, or substantially all the assets, of the
Company in a merger, business combination, or other form of business transaction
with or into an entity whose securities are registered under the Securities
Exchange Act of 1934, as amended, in which the Company's stockholders do not own
at least a majority of the outstanding voting securities of the surviving
corporation or business entity after such transaction (based solely on such
Company stockholders' holdings of the Company prior to the transaction), then
the Company shall give Holder at least twenty (20) days written notice of the
proposed effective date and terms of such offering, transaction or agreements,
and if this Warrant has not been exercised before the effective date set forth
in such notice, then this Warrant and the rights hereunder shall automatically
terminate in its entirety.
5
9. Registration Rights. Shares issued upon exercise of this Warrant
shall have registrable and subject to the terms of that certain Second Amended
and Restated Registration Rights Agreement dated as of January __, 2004 by and
among the Company and the other party parties named therein.
10. Transfer or Assignment of Warrant.
(a) This Warrant, and any rights hereunder, may not be
assigned or transferred, except as provided herein and in accordance with and
subject to the provisions of (i) applicable state securities laws, and (ii) the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (such Act and such rules and regulations being hereinafter
collectively referred to as the "Act"). Any purported transfer or assignment
made other than in accordance with this Section 10 shall be null and void and of
no force and effect.
(b) This Warrant, and any rights hereunder, may be transferred
or assigned only with the prior written consent of the Company, which shall be
granted only upon receipt by the Company of (i) notice of the proposed transfer
or assignment and a detailed statement of the circumstances surrounding the
proposed transfer or assignment and (ii) an opinion of counsel reasonably
satisfactory to the Company that (i) the transferee is a person to whom this
Warrant may be legally transferred without registration under the Act, and (ii)
such transfer will not violate any applicable law or governmental rule or
regulation, including, without limitation, any applicable federal or state
securities law.
(c) Any assignment permitted hereunder shall be made by
surrender of this Warrant to the Company at its principal office with the
Assignment Form annexed hereto duly executed and funds sufficient to pay any
transfer tax, if any. In such event, the Company shall, without charge, execute
and deliver a new warrant in the name of the assignee named in such instrument
of assignment in the amount so assigned and this Warrant shall be promptly
canceled, provided, however, that in the event that Holder hereof shall assign
or transfer less than the full amount of this Warrant, a new warrant evidencing
the remaining portion of this Warrant not so assigned or transferred shall be
issued in the name of Holder.
11. Adjustments to Shares.
(a) If outstanding shares of the Company's Common Stock shall
be subdivided into a greater number of shares or a dividend in Common Stock
shall be paid in respect of Common Stock, the Warrant Price in effect
immediately prior to such subdivision or at the record date of such dividend
shall simultaneously with the effectiveness of such subdivision or immediately
after the record date of such dividend be proportionately reduced. If
outstanding shares of Common Stock shall be combined into a smaller number of
shares, the Warrant Price in effect immediately prior to such combination shall,
simultaneously with the effectiveness of such combination, be proportionately
increased. When any adjustment is required to be made in the Warrant Price, the
number of shares of Common Stock purchasable upon the exercise of this Warrant
6
shall be changed to the number determined by dividing (i) an amount equal to the
number of shares issuable upon the exercise of this Warrant immediately prior to
such adjustment, multiplied by the Warrant Price in effect immediately prior to
such adjustment, by (ii) the Warrant Price in effect immediately after such
adjustment.
(b) In case of any reclassification or change of the
outstanding securities of the Company or of any reorganization of the Company
(or any other corporation the stock or securities of which are at the time
receivable upon the exercise of this Warrant) or any similar corporate
reorganization on or after the date hereof, then and in each such case the
holder of this Warrant, upon the exercise hereof at any time after the
consummation of such reclassification, change, reorganization, merger or
conveyance, shall be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise hereof prior to such
consummation, the stock or other securities or property to which such holder
would have been entitled upon such consummation if such holder had exercised
this Warrant immediately prior thereto, all subject to further adjustment as
provided in Section 11(a); and in each such case, the terms of this Section 11
shall be applicable to the shares of stock or other securities properly
receivable upon the exercise of this Warrant after such consummation.
(c) When any adjustment is required to be made in the number
of shares of Common Stock purchasable hereunder or the Warrant Price pursuant to
this Section 11, the Company shall promptly mail to Holder a certificate setting
forth (i) a brief statement of the facts requiring such adjustment, (ii) the
Warrant Price after such adjustment and (iii) the kind and amount of stock or
other securities or property into which this Warrant shall be exercisable after
such adjustment.
(d) The Company shall not, by amendment of its Certificate of
Incorporation, as amended from time to time, or through a reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of its terms to be observed or performed under this
Warrant by the Company, but shall at all times in good faith assist in carrying
out of all the provisions of this Section 11 and in taking all such action as
may be necessary or appropriate to protect Holder's rights under this Section 11
against impairment.
12. Loss, Theft, Destruction or Mutilation of Warrant. Upon receipt by
the Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and in case of loss, theft or
destruction, of indemnity or security reasonably satisfactory to it, and upon
reimbursement to the Company of all reasonable expenses incidental thereto, and
upon surrender and cancellation of this Warrant, if mutilated, the Company will
make and deliver a new warrant identical in tenor and date in lieu of this
Warrant.
13. General. This Warrant shall be governed by and interpreted in
accordance with the laws of the State of California, except for its principles
of conflicts of laws. The headings in this Warrant are for purposes of
convenience and reference only and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
7
discharged or terminated orally but rather only by an instrument in writing
signed by the Company and Holder. This Warrant shall be binding on and inure to
the benefit of the parties hereto and their respective successors and assigns.
In case any one or more of the provisions of this Warrant shall be invalid or
unenforceable in any respect, the validity and enforceability of the remaining
terms and provisions of this Warrant shall not in any way be affected or
impaired thereby and the parties will attempt in good faith to agree upon a
valid and enforceable provision which shall be a commercially reasonable
substitute therefor, and upon so agreeing, shall incorporate such substitute in
this Warrant. All notices and other communications from the Company to Holder
shall be mailed by prepaid courier or first-class registered or certified mail,
postage pre-paid, to the address furnished to the Company in writing by the last
holder who shall have furnished an address to the Company in writing.
Issued this ____ day of January 2004.
ORYX TECHNOLOGY CORP.
By: __________________________________
Xxxxxx X. Xxxxxxxx, President and
Chief Executive Officer
8
SUBSCRIPTION FORM
The undersigned registered owner of the Warrant which accompanies this
Subscription Form hereby irrevocably (a) exercises such warrant for, and
purchases ______ shares Common Stock (the "Shares") of Oryx Technology Corp., a
Delaware corporation (the "Company"), purchasable upon the exercise of such
Warrant, and herewith makes payment therefor, or (b) exercises such Warrant for
______ shares of the Company's Common Stock purchasable under the Warrant
pursuant to the net exercise provisions of the second paragraph of Section 7(a)
of such Warrant all at the price and on the terms and conditions specified in
such Warrant.
1.01 Authorization. This exercise constitutes a valid and legally
binding obligation of the undersigned, enforceable in accordance with its terms.
1.02 Investment Representation. The undersigned acknowledges,
represents, and warrants that it (a) has a preexisting personal or business
relationship with the Company, and/or by reason of its business or financial
experience has the capacity to protect its own interests in connection with the
transaction, and (b) is an "accredited investor" under Regulation D of the
Securities Act of 1933, as amended (the "Act"). The undersigned further
acknowledges that it is aware that the Shares have not been registered under the
Act, or qualified under any state's securities laws. The Shares are being
acquired for investment purposes only and not for sale or with a view to
distribution of all or any part thereof.
1.03 Access to Information. The undersigned represents that it has or
will have had upon exercise of the Warrant an opportunity to ask questions of
and receive answers from the Company regarding the terms and conditions of its
purchase of the Shares concerning the business, financial affairs and other
aspects of the Company, and it has further had the opportunity to obtain any
information (to the extent the Company possesses or can acquire such information
without unreasonable effort or expense) which it deems necessary to evaluate its
investment or to verify the accuracy of information otherwise provided to it.
The undersigned acknowledges that it is not relying upon any person, firm or
corporation (other than the Company and its officers and directors) in making
its investment or decision to invest in the Company, and the undersigned
represents that it has been solely responsible for its own "due diligence"
investigation of the Company and its management and business, for its own
analysis of the merits and risks of this investment.
1.04 Investment Experience. The undersigned represents and warrants
that by reason of its financial and business experience, it has the capacity to
protect its interests in connection with these transactions.
1.05 Restricted Securities. The undersigned understands that the Shares
will be characterized as "restricted securities" under the federal securities
laws inasmuch as they are being acquired from the Company in a transaction not
involving a public offering, and that under such laws and applicable regulations
such securities may be resold without registration under the Act only in certain
limited circumstances and that otherwise such securities must be held
indefinitely. In this connection, the undersigned represents that it is familiar
with SEC Rule 144, as presently in effect, and the conditions which must be met
2
in order for that Rule to be available for resale of "restricted securities,"
and understands the resale limitations imposed by the Act.
1.06 Further Limitations on Disposition. Without in any way limiting
the representations set forth above, the undersigned further agrees not to make
any disposition of all or any portion of the Shares unless and until:
(a) There is then in effect a "Registration Statement" under
the Act covering such proposed disposition and such disposition is made in
accordance with such Registration Statement and any applicable requirements of
state securities laws; or
(b) (i) the undersigned shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (ii) if
reasonably requested by the Company, shall have furnished the Company with an
opinion of counsel at undersigned's expense (except for dispositions pursuant to
Rule 144 of the Rules and Regulations under the Act which dispositions shall not
so require an opinion of counsel) reasonably satisfactory to the Company, that
such disposition will not require registration of the Shares under the Act or
the consent of or permit from appropriate authorities under any applicable state
securities law.
(c) Notwithstanding the provisions of paragraphs 1.06 (a) and
(b) above, no such Registration Statement or opinion of counsel shall be
necessary for a transfer by the undersigned to a constituent stockholder or
constituent partner (including any constituent of a constituent) of the
undersigned, if the transferee or transferees agree in writing to be subject to
the terms hereof to the same extent as if they were the undersigned hereunder.
2. RESTRICTIONS ON THE TRANSFER OF SECURITIES.
2.01 Corporate Securities Law. The Shares shall be transferred only in
compliance with the conditions specified in Section 1.06, which conditions are
intended to ensure compliance with the provisions of the Act and state
securities laws with respect to the transfer of any such securities. Each
certificate representing the Shares shall bear at least a legend substantially
in the following form until such time as the conditions of such legend have been
met:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED ("ACT"), NOR HAVE THEY BEEN REGISTERED OR
QUALIFIED UNDER THE SECURITIES LAWS OF ANY STATE. NO TRANSFER OF SUCH SECURITIES
WILL BE PERMITTED UNLESS A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS
TO SUCH TRANSFER, THE TRANSFER IS MADE IN ACCORDANCE WITH RULE 144 UNDER THE ACT
OR AS OTHERWISE PERMITTED BY THE COMPANY, OR IN THE OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND AT HOLDER'S EXPENSE, REGISTRATION UNDER THE ACT
3
IS UNNECESSARY IN ORDER FOR SUCH TRANSFER TO COMPLY WITH THE ACT AND WITH
APPLICABLE STATE SECURITIES LAWS.
The Company shall, within ten (10) days of the request of any holder of
a certificate bearing the foregoing legend and the surrender of such
certificate, issue a new stock certificate in the name of the transferee
provided that there has been compliance with the provisions of subsection 1.06
above.
2.02 Additional Legends. The Company may also impose any additional
legend required under applicable federal or state securities laws or permitted
under its bylaws and shall be entitled to issue stop transfer notices on its
books with respect to any securities purchased hereunder until the conditions
set forth in the applicable legends have been met.
Dated: _______________
--------------------------------------------
(Signature of Registered Owner)
--------------------------------------------
(Name)
--------------------------------------------
(Street Address)
--------------------------------------------
(City, State, Zip Code)
3
--------------------------------------------
Social Security or Tax Identification Number
If the number of Shares issuable upon this exercise shall not
be all of the Shares which the undersigned is entitled to purchase in accordance
with the enclosed Warrant, the undersigned requests that a new warrant
evidencing the right to purchase the Shares not issuable pursuant to the
exercise evidenced hereby be issued in the name of and delivered to:
-----------------------------------------------------------------------------
(Please print name and address)
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
Date: _______________ Name of Holder:
(Print) ___________________________________
(By) ______________________________________
(Name:)
(Title:)
(Signature must conform in all respects to
name of holder as specified on the face of
the Warrant)
4
FORM OF ASSIGNMENT
------------------
(To be signed only upon assignment of Warrant)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto:
----------------------------------
----------------------------------
----------------------------------
(Name and address of assignee must be printed or typewritten)
___________ shares of Oryx Technology Corp. Common Stock purchasable
under the within Warrant, hereby irrevocably constituting and appointing
______________________ Attorney to transfer said Warrant on the books of the
Company, with full power of substitution in the premises.
Dated: ___________
--------------------------------
(Signature of Registered Owner)
1
EXHIBIT B
---------
Schedule of Exceptions
----------------------
1
EXHIBIT C
---------
Certificate of Incorporation and Bylaws
---------------------------------------
1
EXHIBIT D
---------
Second Amended and Restated Registration Rights Agreement
---------------------------------------------------------
ORYX TECHNOLOGY CORPORATION
SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This Second Amended and Restated Registration Rights Agreement (the
"Agreement") is made as of January 29, 2004 by and among Oryx Technology
Corporation, a Delaware corporation (the "Company"), having its principal
executive offices located at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000, Xxx Xxxx,
Xxxxxxxxxx 00000 and the persons listed on the signature page hereto as
Investors (each, an "Investor" and, together, the "Investors").
RECITALS
A. The Company and certain Investors entered into a Registration Rights
Agreement dated as of October 31, 2001 (the "Original Agreement") in connection
with the purchase of an aggregate of 162,338 shares of Common Stock and warrants
to purchase up to 37,975 shares of Common Stock pursuant to a Common Stock and
Warrant Purchase Agreement dated as of October 31, 2001 (the "2001 Purchase
Agreement").
B. The Company and certain Investors ("Prior Investors") entered into
an Amended and Restated Registration Rights Agreement dated as of July 28, 2003
(the "Amended Agreement") in connection with the purchase of up to 625,000
shares of Common Stock and warrants to purchase up to 156,250 shares of Common
Stock pursuant to a Common Stock and Warrant Purchase Agreement dated as of July
28, 2003 (the "July 2003 Purchase Agreement"). A majority in interest of the
Prior Investors and the Company desire to amend and restate the Amended
Agreement in accordance with Section 17(c) of the Amended Agreement.
C. The Company and certain other Investors have entered into a Common
Stock and Warrant Purchase Agreement dated as of January 29, 2004 pursuant to
which they will purchase up to an aggregate of 360,000 shares of Common Stock
and warrants to purchase up to 90,000 shares of Common Stock (the "January 2004
Purchase Agreement")
D. It is a condition to closing under the January 2004 Purchase
Agreement that the Company and the Investors (including a majority in interest
of the Prior Investors) amend and restate in its entirety the Amended Agreement
by entering into this Second Amended and Restated Registration Rights Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties agree as
follows:
AGREEMENT
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" shall mean the United States Securities and
Exchange Commission or any successor agency.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any successor law thereto.
"Holder" shall mean each Investor and any transferee of
Registrable Securities who pursuant to Section 15 below is entitled to
registration rights hereunder.
"Common" shall mean shares of the Company's authorized Common
Stock issued and sold by the Company pursuant to the 2001 Purchase Agreement,
the July 2003 Purchase Agreement and/or the January 2004 Purchase Agreement.
"Investor" shall mean each person or entity who has acquired
shares of Common and any related securities pursuant to the 2001 Purchase
Agreement, the July 2003 Purchase Agreement or the January 2004 Purchase
Agreement and who is a signatory to this Agreement.
"Registrable Securities" shall mean (i) shares of Common; (ii)
any Common Stock of the Company issued upon exercise of the Warrants; (iii)
shares of the Company's Common Stock or other securities issued or issuable upon
any stock split, stock dividend, recapitalization, or similar event with respect
to or in replacement of the shares referenced in (i) or (ii) above; provided,
however, that Registrable Securities shall not include (a) shares of such Common
Stock that have been sold to or through a broker or dealer or underwriter in a
public distribution or public securities transaction, (b) shares of Common Stock
sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that all
transfer restrictions and restrictive legends with respect thereto, if any, are
removed upon the consummation of such sale, or (c) Registrable Securities sold
by a person in a transaction in which rights under this Agreement are not
assigned.
"Register," "registered," and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by
the Company in complying with Sections 5, 6 or 7 hereof, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, accounting fees,
blue sky fees and expenses, and the expense of any special audits incident to or
required by any such registration but excluding all Selling Expenses.
"Restricted Securities" shall mean the securities of the
Company required to bear the legend set forth in Section 3 hereof (or any
similar legend).
-2-
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any successor law thereto.
"Selling Expenses" shall mean all underwriting discounts, fees
and disbursements of counsel to the Holders, selling commissions, and stock
transfer taxes applicable to the securities registered by the Holders.
"Warrants" shall mean the warrants to purchase Common Stock
issued pursuant to the 2001 Purchase Agreement, the July 2003 Purchase
Agreement, and/or the January 2004 Purchase Agreement.
2. Restrictions on Transferability. The Restricted Securities shall not
be transferable except upon the conditions specified in this Agreement, which
conditions are intended to ensure compliance with the provisions of the
Securities Act. In no event shall Restricted Securities be transferred, without
the prior written consent of the Company, to any entity (or any affiliate
thereof) whose principal business is competitive with that of the Company (as
determined by the Board of Directors of the Company acting in good faith) and
any such attempted transfer shall be void ab initio; provided, however, that no
affiliate of a holder of Restricted Securities shall be deemed to be a
competitor of the Company. Each holder of Restricted Securities will cause any
proposed transferee of the Restricted Securities held by such holder to agree to
take and hold such Restricted Securities subject to the provisions and upon the
conditions specified in this Agreement.
3. Restrictive Legend. Each certificate representing (i) the Common,
(ii) the Warrants, (iii) shares of the Company's Common Stock issued upon
exercise of the Warrants, and (iv) any other securities issued in respect of the
Common Stock upon any stock split, stock dividend, recapitalization, merger,
consolidation or similar event, shall (unless otherwise permitted by the
provisions of Section 4 below) be stamped or otherwise imprinted with a legend
in substantially the following form (in addition to any legend required under
applicable state securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF A REGISTRATION STATEMENT IN EFFECT WITH
RESPECT TO THE SECURITIES UNDER SUCH ACT OR AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
The Investors and any Holder consent to the Company's making a notation
on its records and giving instructions to any transfer agent of the Common and
the Warrants (including any Common Stock issuable upon exercise of the Warrants)
in order to implement the restrictions on transfer established in this Section.
4. Notice of Proposed Transfers. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section. Prior to any proposed transfer of
any Restricted Securities, unless there is in effect a registration statement
under the Securities Act covering the proposed transfer, the holder thereof
shall give written notice to the Company of such Holder's intention to effect
-3-
such transfer. Each such notice shall describe the manner and circumstances of
the proposed transfer in sufficient detail, and shall, if the Company so
requests, be accompanied by either (i) a written opinion of legal counsel, who
shall be reasonably satisfactory to the Company, addressed to the Company and
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that the proposed transfer of the Restricted Securities may be effected
without registration under the Securities Act or (ii) a "No Action" letter from
the Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the holder to the
Company. Each certificate evidencing the Restricted Securities transferred as
above provided shall bear the appropriate restrictive legends described above,
except that such certificate shall not bear any such restrictive legend if, in
the opinion of counsel for the Company, such legend is not required.
Notwithstanding the foregoing, no opinion or "no action" letter shall be
required for a transfer by a Holder to (i) a partner, active or retired, of a
Holder of Restricted Securities; (ii) the estate of any such partner; (iii) any
spouse, lineal descendant or ancestor, or spouse of any lineal descendant or
ancestor of any Holder or to any trust for the benefit of such Holder or such
persons; or (iv) any affiliate of a Holder as defined in Rule 12b-2 of the
Exchange Act.
5. Requested Registration.
(a) Request for Registration. In case the Company shall
receive from Holders holding not less than a majority of the outstanding
Registrable Securities a written request that the Company file a registration
statement under the Securities Act with respect to shares of Registrable
Securities, the Company will:
(i) promptly give written notice of such request to
all other Holders; and
(ii) subject to the limitations of Section 5(b), as
soon as practicable, use its best efforts to effect such registration under the
Securities Act (including, without limitation, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request received by the Company
within twenty (20) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to take any action to
effect any such registration, qualification or compliance pursuant to this
Section 5:
(A) prior to ninety (90) days following the effective
date of a Company-initiated registration (other than a registration effected
solely to qualify an employee benefit plan or to effect a business combination
pursuant to Rule 145);
-4-
(B) (i) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration unless the Company is already subject to
jurisdiction and except as may be required by the Securities Act, and (ii) to
the extent that the Company would be required to qualify or exempt such sale of
securities under applicable blue sky or other state securities laws in more than
ten (10) states;
(C) after the Company has effected two (2) such
registrations pursuant to this Section 5, which registrations have been declared
effective;
(D) that would require the Company to maintain and
keep any such registration on Form S-1 or SB-1 effective for a period greater
than the period equal to the shorter of (x) 45 days or (y) such date as the
disposition of the Registrable Securities subject to such registration has been
completed;
(E) if the Company shall furnish to Holders a
certificate signed by the President of the Company stating that in the good
faith judgment of the Company's Board of Directors, it would be detrimental to
the Company and its stockholders if the registration statement were filed, then
the Company may defer the filing of such registration statement for a period of
up to one hundred eighty (180) days after receipt of the request of the Holder
or Holders requesting such registration; provided, however, that the Company may
not utilize this right more than once in any 12-month period; or
(F) if such Registrable Securities can be registered
on a Form S-3 (or equivalent or successor form) or sold pursuant to Rule 144
under the Securities Act or other applicable exemption from registration under
the Securities Act within a three-month period.
Subject to the foregoing clauses (A) through (F) inclusive, the Company
shall file a registration statement covering the Registrable Securities so
requested to be registered as soon as practicable after receipt of the request
or requests of the initiating Holders.
(b) Underwriting. In the event that a registration pursuant to
Section 5 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 5(a)(i). In such event, the right of any Holder to registration pursuant
to Section 5 shall be conditioned upon such Holder's participation in the
underwriting arrangements required by this Section 5, and the inclusion of such
Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein.
The Company shall (together with all Holders proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form with a managing underwriter selected for such underwriting by
the Company. Notwithstanding any other provision of this Section 5, if the
managing underwriter advises the Holders in writing that market factors require
a limitation of the number of shares to be underwritten, then the Company shall
so advise all holders of Registrable Securities and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all Holders thereof (except those Holders who have
-5-
indicated to the Company their decision not to distribute any of their
Registrable Securities through such underwriting) in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities held by such
Holders at the time of filing the registration statement. No Registrable
Securities excluded from the underwriting by reason of the underwriter's market
limitation shall be included in such registration. To facilitate the allocation
of shares in accordance with the above provisions, the Company or the
underwriters may round the number of shares allocated to any Holder to the
nearest one hundred (100) shares.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the other Holders. The Registrable
Securities and/or other securities held by such Holder affected shall be
withdrawn from registration, and such withdrawn Registrable Securities shall not
be transferred in a public distribution prior to one hundred twenty (120) days
after the closing date of such registration, or such other shorter period of
time as the underwriters may require, or as required by law.
6. Company Registration.
(a) Notice of Registration. If the Company shall determine to
register any of its securities, either for its own account or the account of a
security holder or holders exercising their respective demand registration
rights, other than: (i) a registration relating solely to employee benefit plans
or (ii) a registration relating solely to a transaction pursuant to Rule 145
promulgated under the Securities Act, the Company will:
(i) promptly give to each Holder written notice
thereof; and
(ii) include in such registration (and any related
qualification under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within twenty (20) days after receipt of such written notice
from the Company, by any Holder or Holders.
(b) Underwriting. Notwithstanding any other provision of this
Section 6, if the registration has a managing underwriter and the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit the number of
Registrable Securities to be included in the registration and underwriting. In
such event, the Company shall so advise all Holders of Registrable Securities
which would otherwise be registered and underwritten pursuant hereto, and the
number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among the Holders in
proportion, as nearly as practicable, to the respective amounts of Registrable
Securities held by such Holders; provided, however, that no other selling
securityholder of the Company may include securities in such registration if any
Registrable Securities of the Holders are excluded hereunder. If any Holder
disapproves of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
-6-
(c) Right to Terminate Registration. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration.
7. Registration on Form S-3. A Holder or group of Holders holding not
less than a majority of the outstanding Registrable Securities shall have the
right to request that the Company register such Registrable Securities on Form
S-3 (such requests to be in writing and to state the number of shares of
Registrable Securities to be disposed of and the intended method of disposition
of such shares by each such Holder), subject to the following limitations:
(a) the Company shall not be obligated to effect such
registration if Form S-3 is not available for such offering of the requesting
Holders or if the Registrable Securities subject to a request for registration
on Form S-3 can be sold pursuant to Rule 144 under the Securities Act or other
applicable exemption from registration under the Securities Act within a
three-month period;
(b) the Company shall not be obligated to cause a registration
on Form S-3 to become effective prior to ninety (90) days following the
effective date of a Company-initiated registration (other than a registration
effected solely to qualify an employee benefit plan or to effect a business
combination pursuant to Rule 145);
(c) the Company shall not be obligated to take any action to
effect any such registration (i) in any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration unless the Company is already subject to
jurisdiction and except as may be required by the Securities Act, and (ii) to
the extent that the Company would be required to qualify or exempt such sale of
securities under applicable blue sky or other state securities laws in more than
ten (10) states;
(d) the Company shall not be required to effect a registration
on Form S-3 unless the Holder or Holders requesting registration propose to
dispose of shares of Registrable Securities having an aggregate disposition
price (before deduction of underwriting discounts and expenses of sale) of at
least $250,000;
(e) the Company shall not be required to effect more than one
(1) registration on Form S-3 in any six (6)-month period;
(f) the Company shall not be required to effect more than two
(2) registrations on Form S-3 for the Holders pursuant to this Section 6;
(g) the Company shall not be required to maintain and keep any
such registration on Form S-3 effective for a period greater than the period
equal to the shorter of (x) 45 days or (y) such date as the disposition of the
Registrable Securities subject to such registration has been completed; and
-7-
(h) the Company may defer the filing of such registration
statement for a period of up to one hundred eighty (180) days after receipt of
the request of the Holder or Holders requesting such registration, if in the
good faith judgment of the Company's Board of Directors, it would be detrimental
to the Company and its stockholders if the registration statement were filed;
provided, however, that the Company may not utilize this right more than once in
any 12-month period.
The Company shall give notice to all Holders of the receipt of a
request for registration pursuant to this Section and shall provide a reasonable
opportunity for all such other Holders to participate in the registration.
Subject to the foregoing, the Company will use its commercially reasonable
efforts to effect promptly the registration of all shares of Registrable
Securities on Form S-3 to the extent requested by the Holder or Holders thereof
for purposes of disposition.
8. Obligations of the Company. Whenever required under this Agreement
to effect the registration of any Registrable Securities, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its reasonable best efforts
to cause such registration statement to become effective, and, upon the request
of the Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to one hundred
twenty (120) days.
(b) 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 be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under the securities laws of
such jurisdictions as shall be reasonably appropriate for the distribution of
the securities covered by the registration statement; provided, however, that
the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such jurisdiction, and further provided that (anything in this
Agreement to the contrary notwithstanding with respect to the bearing of
expenses) if any jurisdiction in which the securities shall be qualified shall
require that expenses incurred in connection with the qualification of the
securities in that jurisdiction be borne by selling stockholders, then such
expenses shall be payable by the selling Holders pro rata, to the extent
required by such jurisdiction if such Holders do not elect to withdraw from the
registration after notice of such requirement.
-8-
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement with terms
generally satisfactory to the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by
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
as a result of which the prospectus included in such registration statement, as
then in effect, includes an 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.
In such instance, Company shall use its best efforts to cure any such statement
or omission so as to render such statement or omission not misleading.
9. Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification, or compliance pursuant to
Sections 5, 6 or 7 shall be borne by the Company. All Selling Expenses in
connection with any registration, qualification, or compliance hereunder shall
be borne by the Holders pro-rata based on the number of Registrable Securities
so registered.
10. Registration Procedures. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. In connection with any registration effected pursuant to this
Agreement, the Company will prepare and file such amendments and supplements to
its registration statement as may be necessary to comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
such registration statement. At its expense, the Company will furnish such
number of prospectuses and other documents incident thereto as a Holder from
time to time may reasonably request.
11. Termination of Registration Rights. The registration rights granted
pursuant to this Agreement shall terminate with respect to a particular Holder,
such time as such Holder is eligible to sell all of such Holder's Registrable
Securities under Rule 144 or other applicable exemption from registration under
the Securities Act within a three month period.
12. Indemnification.
To the extent permitted by law, the Company will indemnify
each Holder, each of its officers, directors and partners and such Holder's
legal counsel and independent accountants, and each person controlling such
Holder within the meaning of Section 15 of the Securities Act, with respect to
which registration, qualification or compliance has been effected pursuant to
this Agreement, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
-9-
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein 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, or any violation by the Company of the Securities Act or the
Exchange Act or the securities laws of any state or any rule or regulation
thereunder, and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance, and will
reimburse each such Holder, each of its officers, directors and partners and
such Holder's legal counsel and independent accountants, and each person
controlling such Holder, each such underwriter and each person who controls any
such underwriter, for any legal and any other expenses reasonably incurred in
connection with investigating, preparing or defending any such claim, loss,
damage, liability or action, provided that the Company will not be liable in any
such case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission or alleged untrue
statement or omission, made in reliance upon and in conformity with written
information furnished to the Company by an instrument duly executed by such
Holder or underwriter and stated to be specifically for use therein; and
provided, further, that the Company will not be liable to any such person or
entity with respect to any such untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus that is corrected in
the final prospectus filed with the Commission pursuant to Rule 424(b)
promulgated under the Securities Act (or any amendment or supplement to such
prospectus) if the person asserting any such loss, claim, damage or liability
purchased securities but was not sent or given a copy of the prospectus (as
amended or supplemented) at or prior to the written confirmation of the sale of
such securities to such person in any case where such delivery of the prospectus
(as amended or supplemented) is required by the Securities Act, unless such
failure to deliver the prospectus (as amended or supplemented) was a result of
the Company's failure to provide such prospectus (as amended or supplemented).
To the extent permitted by law, each Holder will, severally
and not jointly, if Registrable Securities held by such Holder are included in
the securities as to which such registration, qualification or compliance is
being effected, indemnify the Company, each of its directors and officers and
its legal counsel and independent accountants, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers, directors and
partners and each person controlling such Holder within the meaning of Section
15 of the Securities Act, against all claims, losses, damages and liabilities
(or actions in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any such
registration statement, prospectus, offering circular or other document, or any
omission (or alleged omission) to state therein 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, and will reimburse the
Company, such Holders, such directors, officers, legal counsel, independent
accountants, underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but only
to the extent, that such untrue statement (or alleged untrue statement) or
-10-
omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein;
provided, however, that the obligations of such Holders hereunder shall be
limited to an amount equal to the proceeds, net of underwriting discounts and
commissions but not expenses, to each such Holder of Registrable Securities sold
as contemplated herein.
Each party entitled to indemnification under this Section (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement, except to the extent, but only to the
extent, that the Indemnifying Party's ability to defend against such claim or
litigation is impaired as a result of such failure to give notice. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
If the indemnification provided for in this Section 12 is held
by a court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall 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
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 shall 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. In no event shall any contribution by a Holder under this
Section 12(d) combined with any amounts paid pursuant to Section 12(b) above,
exceed the proceeds, net of underwriting discounts and commissions but not
expenses, from the offering received by such Holder.
13. Information by Holder. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders and the distribution proposed by
such Holder or Holders as the Company may request in writing and as shall be
-11-
required in connection with any registration, qualification or compliance
referred to in this Agreement.
14. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, 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 promulgated under the Securities Act;
(b) file with the Commission 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 Holders upon request a written statement as to
its compliance with the reporting requirements of 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 of the Company as a Holder
may reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any such securities without
registration.
-12-
15. Transfer of Rights. Provided that the Company is given prior
written notice of such assignment, the rights granted hereunder to cause the
Company to register securities may be assigned to (i) a transferee or assignee
who acquires at least 5,000 shares of Registrable Securities (appropriately
adjusted for any stock split, stock dividend, recapitalization, or similar event
after the date hereof) and who agrees to be bound by the terms and conditions of
this Agreement or (ii) any affiliate or constituent partner of a Holder.
16. Board of Directors Observer Rights. Each Investor not represented
on the Company's Board of Directors shall have the right to attend all meetings
of the Board of Directors in a non-voting observer capacity, and in that
respect, the Company shall give each such person or entity copies of all
notices, minutes, consents and other material that it provides to directors;
provided, however, that the Company reserves the right to exclude such
representative(s) from access to any material or meeting or portion thereof if
the Company believes upon advice of counsel that such exclusion is reasonably
necessary to preserve the attorney-client privilege, to protect highly
confidential proprietary information or for other similar reasons. Each Investor
agrees, and any representative of such Investor will agree, to hold in
confidence and trust and not use or disclose to any person any confidential
information provided to or learned by it in connection with its rights under
this Section 16. The confidentiality provisions above shall survive any
termination of this Agreement. The rights under this Section 16 are
nonassignable, except to permitted transferees of shares who are affiliates of
the transferring party and who acquire all of the shares of the transferring
party.
17. Miscellaneous
(a) Governing Law. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California, without
regard to the conflicts of laws provisions thereof. The parties hereto agree to
submit to the jurisdiction of the federal and state courts of the State of
California with respect to the breach or interpretation of this Agreement or the
enforcement of any and all rights, duties, liabilities, obligations, powers and
other relations between or among the parties arising under this Agreement.
(b) Notices, etc. All notices and other communications
required or permitted hereunder shall be in writing and shall be deemed
effectively given upon delivery to the party to be notified in person or by
courier service or five (5) days after deposit with the United States mail, by
registered or certified mail, postage prepaid, addressed (a) if to a Holder, to
such address as such Holder shall have furnished the Company in writing, or,
until any such Holder so furnishes an address to the Company, then to and at the
address of the last holder of such securities who has so furnished an address to
the Company, or (b) if to the Company, to the address of its principle executive
offices and addressed to the attention of the Chief Executive Officer, or at
such other address as the Company shall have furnished to the Holders in
writing.
-13-
(c) Amendment. Any provision of this Agreement may be amended,
waived or modified upon the written consent of (i) the Company and (ii) Holders
of a majority of the then outstanding Registrable Securities. Any Holder may
waive any of its, his or her rights or the Company's obligations hereunder to
such Holder without obtaining the consent of any other person.
(d) Entire Agreement. This Agreement constitutes the full and
entire understanding among the parties regarding the subject matter herein.
Except as otherwise expressly provided herein, the provisions hereof shall inure
to the benefit of, and be binding upon, the successors, assigns, heirs,
executors and administrators of the parties hereto. Pursuant to Section 17(c) of
the Amended Agreement, a majority in interest of the Prior Investors, who are
signatories hereto, and the Company hereby terminate the Amended Agreement, and
agree that this Agreement supersedes, terminates and voids the Amended
Agreement.
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by facsimile, each of which shall be an original and all of
which together shall constitute one instrument.
-14-
IN WITNESS WHEREOF, the undersigned have executed this Second Amended
and Restated Registration Rights Agreement as of the date set forth above.
"COMPANY" ORYX TECHNOLOGY CORPORATION
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
"INVESTORS"
XXXXXXXX INVESTMENTS
By: /s/ Xxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Secretary
VMR HIGH OCTANE FUND
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
NORTHLEA PARTNERS LTD.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx, M.D.
Title: General Partner
-1-
SIGMA INTERNATIONAL II, L.P.,
A Cayman Islands Limited Partnership
By: Xxxxxx Investments, as General Partner
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
COLUMBUS NOVA INVESTMENTS A.V.V.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Partner
ACOMEX EXECUTIVE PENSION FUND
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
/s/ W. Xxxxx Xxxxx. Jr.
-------------------------------------------------
W. XXXXX XXXXX, XX.
THE XXXXXXXX X. XXXXX FAMILY TRUST
By: /s/ W. Xxxxx Xxxxx, Xx.
--------------------------------------------
Name: W. Xxxxx Xxxxx, Xx.
Title: Trustee
-2-
CRATON CAPITAL, LP
By: Craton Capital Advisors, Inc,
as General Partner
By: /s/ Xxxx X. Xxxx
--------------------------------------------
Name: Xxxx X. Xxxx
Title: President
/s/ Xxxxxx Xxxxx
-------------------------------------------------
XXXXXX XXXXX
-3-
EXHIBIT E
---------
Financial Statements
--------------------
-1-
EXHIBIT F
---------
Waiver by Oryx Ventures, LLC
----------------------------
WAIVER
This Waiver is made with respect to the following facts.
1. Oryx Ventures, LLC, a Delaware limited liability company ("Oryx
Ventures"), an affiliate of Oryx Technology Corp., a Delaware corporation
("Oryx"), is contemplating an investment in Series C Preferred Stock ("Series C
Preferred") to be issued by S2 Technologies, Inc. ("S2 Technologies").
2. Pursuant to the Oryx Ventures, LLC Amended and Restated Operating
Agreement (the "Operating Agreement") Xxxxxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxx and
Xxxx Xxxxx, as members of Oryx Ventures, are entitled to share up to an
aggregate twenty percent (20%) of the profits of Oryx Ventures.
3. Oryx believes that it is in its stockholders' best interests for
Oryx Ventures to invest in the Series C Preferred to be issued by S2
Technologies.
4. To effect such investment in S2 Technologies, Oryx is selling shares
and warrants to purchase common stock under a Common Stock and Warrant Purchase
Agreement dated January 29, 2004 (the "Purchase Agreement"), to which this
Waiver is attached as Exhibit F, and contributing the cash proceeds thereof to
Oryx Ventures as an additional capital contribution to enable Oryx Ventures to
purchased the Series C Preferred. The purchasers of the common stock and
warrants issued by Oryx pursuant to the Purchase Agreement have conditioned the
purchase by Oryx Ventures of the Series C Preferred on Messrs. Xxxxxxxx, Xxxxx
and Underseth waiving any rights they may have to claim any profits of or
ownership interest in any securities of S2 Technologies which arise from, relate
to, or derive in any manner from any securities purchased by Oryx Ventures in S2
Technologies using any of the funds paid by purchasers for Oryx's common stock
and warrants purchased under the Purchase Agreement.
5. Oryx and Oryx Ventures believe it is in the best interests of the
stockholders of Oryx that Messrs. Xxxxxxxx, Underseth and Xxxxx so waive their
respective rights, as requested.
-1-
NOW, THEREFORE, Messrs. Xxxxxxxx, Underseth and Xxxxx hereby agree as
follows:
In consideration of the above recitals, and the purchase of Oryx's
securities by the investors named in the Purchase Agreement, each of Messrs.
Xxxxxxxx, Underseth and Xxxxx hereby agree, now and forever, that he shall not
make, and he hereby waives, forfeits, abandons, relinquishes and releases, now
and forever, any claim to the profits of Oryx Ventures which arise from, relate
to, or derive in any manner from any securities purchased directly by Oryx
Ventures in S2 Technologies using, arising out of, or relating to the funds paid
by purchasers for the common stock and warrants purchased under the Purchase
Agreement. This Waiver shall not affect the rights of Messrs. Xxxxxxxx,
Underseth and Xxxxx to claim their share and the proceeds thereof of any prior
or future investment made by Oryx Ventures in S2 Technologies.
IN WITNESS WHEREOF, this Waiver is executed as of the 29th day of
January, 2004.
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxx
----------------------------------------
Xxxx Xxxxx
ACKNOWLEDGED AND AGREED:
ORYX VENTURES, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
Manager
ORYX TECHNOLOGY CORP.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
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