Exhibit 10.2
July 24, 2000
Xxxxx X. Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxx:
Reference is made to an offer letter dated as of the date hereof (the
"Offer Letter"), delivered by dreamlife, inc. (the "Company") to you, pursuant
to which the Company has extended to you an offer to be employed as the Chief
Executive Officer of the Company. Terms otherwise not defined herein shall have
the meanings ascribed to them in the Offer Letter. As required by Section E of
the Offer Letter, the Company hereby agrees to provide to you, on the terms and
subject to the conditions hereinafter set forth, certain piggyback registration
rights with respect to up to 100,000 shares of common stock of the Company which
you may acquire upon your exercise of options with respect thereto granted to
you by CYL Development Holdings, LLC (the "CYL Option Shares").
1. Subject to the terms and conditions hereinafter set forth, if at any
time prior to the third anniversary of the date hereof, the Company proposes to
register any of its securities for its own account or for the account of any
third parties under the Securities Act of 1933, as amended (the "Securities
Act") (other than in connection with a transaction contemplated by Rule 145(a)
promulgated under the Securities Act or pursuant to Form S-4 or Form S-8 or
successor forms), the Company will use its reasonable efforts to notify you at
least ten (10) days prior to the filing of such registration statement and upon
your written request, delivered to the Company within three days after receipt
of such notice (which notice shall set forth the number of CYL Option Shares
proposed by you to be included in such registration statement), the Company
shall use its reasonable efforts to cause such CYL Option Shares to be included
in such proposed registration on the same terms and conditions as the securities
otherwise being sold in such registration; PROVIDED, HOWEVER, that in addition
to the limitations, restrictions and conditions hereinafter set forth, the
rights granted to you hereunder shall in all respects be subject and subordinate
to the Company's right to include securities for its own account and to any
demand or piggyback registration rights of any third parties now or hereafter
granted by the Company in respect of any such registration and their respective
rights to include securities of the Company in such registration or otherwise
(which rights may result in your exclusion from any participation in any such
registration or otherwise limit the number of CYL Option Shares that may be
included in any such registration). The Company shall only be required to offer
to include your CYL Option Shares in any registration as contemplated above on
two (2) separate occasions.
2. In connection with any registration involving an underwriting of
securities of the Company, the Company shall not be required to include any of
the CYL Option Shares in such underwriting unless you accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it (or by other persons entitled to select the underwriters) (and enter into an
underwriting agreement with the underwriters participating in
such offering) and then only in such quantity as the Company and the
underwriters determine in their sole discretion will not materially adversely
affect the offering (including marketing and pricing) of securities by the
Company. If the total amount of securities to be included in such offering will
in the sole judgment and discretion of the Company and/or the underwriters
adversely affect the offering then the Company shall only be required to include
in the offering that number of CYL Option Shares, if any, that the Company
and/or the underwriters determine in their sole discretion will not adversely
affect the offering (including marketing and pricing). Under all circumstances
with respect to any registration, whether or not underwritten, the CYL Option
Shares will be excluded from such registration prior to the exclusion or
reduction in any securities proposed to be included therein by the Company and
by any other participants in such registration.
3. The Company shall have the absolute right at any time to withdraw
any registration or terminate or suspend any offering in its sole and absolute
discretion, and/or to prohibit or suspend offers and sales of securities in
connection with any registration, including the CYL Option Shares.
4. In addition to any other conditions contained herein, the Company
shall not be obligated to effect the registration of the CYL Option Shares
pursuant to Paragraph 1 unless you consent to customary conditions of a
reasonable nature that are imposed by the Company, including, but not limited
to, the following:
(a) conditions prohibiting the sale of the CYL Option Shares
by you until the registration is effective;
(b) conditions requiring you to comply with all applicable
provisions of the Securities Act and the Securities Exchange Act of 1934, as
amended, including, but not limited to, the prospectus delivery requirements of
the Securities Act, and to furnish to the Company information about sales made
in such public offering;
(c) conditions prohibiting you from effecting sales of the CYL
Option Shares upon receipt of written notice from the Company;
(d) conditions requiring you to execute a power of attorney
and custody arrangement with respect to the CYL Option Shares to be registered
prior to the filing of the registration statement; and
(e) if such registration is an underwritten public offering,
conditions requiring you to enter into an underwriting agreement in form and
substance customary under the circumstances.
5. Whenever under this letter agreement any CYL Option Shares are being
registered, as a condition to the inclusion of such CYL Option Shares in such
registration, you shall provide the Company on a timely basis with such
information and materials as the Company may reasonably request in order to
effect the registration of such CYL Option Shares and the Company shall not be
obligated to register such CYL Option Shares if you fail after written request
to provide such information and materials to the Company.
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6. In connection with any registration pursuant to this letter
agreement, and subject to the other terms and conditions of this letter
agreement, the Company shall in its sole discretion determine the terms and
conditions of such registration, including, without limitation, the timing
thereof; the scope of the offering contemplated thereby (i.e., whether the
offering shall be a combined primary offering and a secondary offering or
limited only to a secondary offering); the manner of distribution of the CYL
Option Shares; the period of effectiveness of registration for permissible sales
of the CYL Option Securities thereunder; and all other aspects of the
registration and the registration process. In connection therewith, the Company
may require that any such registration be underwritten, in which event (i) the
managing underwriter shall be selected by the Company and (ii) the inclusion of
the CYL Option Shares in such registration shall be conditioned upon your
entering into an underwriting agreement in customary form with such underwriters
participating in such registration.
7. In connection with any registration of the CYL Option Shares under
the Securities Act pursuant to this letter agreement, you shall indemnify and
hold harmless the Company, each director of the Company, each officer of the
Company, each underwriter, broker or other person acting on behalf of the
Company and each person who controls any of the foregoing persons within the
meaning of the Securities Act against any losses, claims, damages or liabilities
joint or several (or actions in respect thereof), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the registration statement under which such CYL Option Shares
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein or otherwise filed with the Commission, any
amendment or supplement thereto or any document incident to registration or
qualification of any of the CYL Option Shares, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or,
with respect to any prospectus, necessary to make the statements therein in
light of the circumstances under which they were made not misleading, to the
extent, but only to the extent, such statement or omission was made in reliance
upon and in strict conformity with written information furnished to the Company
or such underwriter by you for use in connection with such registration
statement, preliminary prospectus, final prospectus, amendment, supplement or
document, unless you failed to deliver such amendment or supplement to a
prospective purchaser, and such information has not been corrected in a
subsequent writing that was received by the Company in sufficient time to amend
or supplement such registration statement, preliminary prospectus, final
prospectus, amendment, supplement or document.
8. You hereby agree to and shall keep strictly confidential and will
not disclose or divulge any confidential, proprietary or secret information
which you may obtain from the Company in connection with this letter agreement,
unless required to be disclosed by law or pursuant to any judgment, order,
subpoena or decree of any court having competent jurisdiction, or unless such
information is or becomes publicly known (other than as a result of the
provisions of this paragraph), or unless the Company gives its written consent
to the release by you of such information, except that no such written consent
shall be required (and you shall be free to release such information) if such
information is to be provided to your lawyer or accountant who is instructed to
comply with this provision. You shall be responsible for making sure your lawyer
and accountant comply with the provisions of this paragraph.
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9. This letter agreement and your rights hereunder are personal to you
and not assignable without the express prior written consent of the Company.
10. You shall be responsible for and pay any and all underwriting
discounts, income and transfer taxes, selling commissions and all legal fees and
expenses of your counsel incurred by in connection with any offer and/or sale of
the CYL Option Shares in any registration or proposed registration in which you
participate or propose to participate.
11. Anything contained herein to the contrary notwithstanding, you
shall not be entitled to exercise any right to participate in any registration
pursuant to paragraph 1 hereof if, at the time you seek to participate in any
such registration, Rule 144 or similar or successor rule thereto promulgated
under the Securities Act shall be available for the sale of all of the CYL
Option Shares during the immediately following three (3) month period without
registration under the Securities Act.
12. The letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York (without regard to principles
of conflicts of laws).
13. All notices and communications to be given or otherwise made to the
Company or you shall be deemed to be sufficient if contained in a written
instrument delivered in person or by facsimile or duly sent by first class
registered or certified mail, return receipt requested, postage prepaid, or by
overnight courier, addressed to, if to the Company, 000 Xxxx 00xx Xxxxxx, Xxxxx
0X, Xxx Xxxx, Xxx Xxxx 00000, and if to you, the address set forth on the first
page of this letter agreement, or to such other address as the party to whom
notice is to be given may have furnished to the other party hereto in writing in
accordance herewith. Any such notice or communication shall be deemed to have
been delivered and received (i) in the case of personal delivery or delivery by
facsimile, on the date of such delivery, (ii) in the case of
nationally-recognized overnight courier, on the next business day after the date
when sent and (iii) in the case of mailing, on the third business day following
that on which the piece of mail containing such communication is posted. As used
in this paragraph 13, "business day" shall mean any day other than a day on
which banking institutions in the State of New York are legally closed for
business
14. This letter agreement may be executed in counterparts, and each
such counterpart shall be deemed to be an original instrument, but all such
counterparts together shall constitute but one agreement.
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If the foregoing accurately reflects our agreement, kindly sign where
indicated below and return the same to us, whereupon this will become a binding
agreement between us.
Very truly yours,
DREAMLIFE, INC.
By: /s/ XXXXXXXX X. XXXXXXXX
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Name: Xxxxxxxx X. Xxxxxxxx
Title: Senior Vice President
and Chief Financial
Officer
AGREED TO AND ACCEPTED BY:
/s/ XXXXX X. XXXX
----------------------------
Xxxxx X. Xxxx
Date: July 21, 2000
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