Exhibit 4.2
SUBSCRIPTION AGREEMENT
InteliData Technologies Corporation
00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
The undersigned subscriber ("Subscriber") hereby tenders this
Subscription Agreement (this "Agreement") in accordance with and subject to the
terms and conditions set forth herein:
1. Subscription.
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1.1 Subscriber hereby subscribes for and agrees to purchase the
number of shares (the "Shares") of common stock, par value $.001 per share (the
"Common Stock") and the number of Common Stock Purchase Warrants (the
"Warrants", and together with the Common Stock, the "Securities"), of InteliData
Technologies Corporation, a Delaware corporation (the "Company"), indicated on
the signature page attached hereto at the purchase price set forth on such
signature page (the "Purchase Price"). Subscriber has made payment by wire
transfer of funds in accordance with instructions from the Company in the full
amount of the Purchase Price of the Securities for which Subscriber is
subscribing (the "Payment").
1.2 This Agreement is part of an offering of Securities being
conducted by Stonegate Securities, Inc. (the "Placement Agent") on behalf of the
Company (the "Offering"). The Company agrees that it shall not undertake any
other financings involving its Equity Common Stock (as defined below) on terms
more favorable than those in the Offering until the later of ninety (90) days
after the Initial Closing Date or 30 days after the effectiveness of the
Registration Statement (as that term is defined in Appendix I hereto) covering
all of the Common Stock, without the prior written approval of a majority of the
holders of the Securities purchased in this Offering. The term "Equity Common
Stock" as used herein shall mean all capital stock of the Company, plus all
rights, warrants, options, convertible Common Stock or indebtedness,
exchangeable Common Stock or indebtedness, or other rights, exercisable for or
convertible into, directly or indirectly, capital stock of the Company.
Notwithstanding the above, "Equity Common Stock" shall not include any Common
Stock of the Company issued pursuant to any incentive or stock option plan of,
or any employment agreement with, the Company approved by the stockholders or
the board of directors of the Company, any Common Stock of the Company issued
pursuant to any purchase of assets or stock of a third party or any merger or
consolidation of the Company with a third party in which the Company is the
surviving corporation, which issuance has been approved by Board of Directors of
the Company, any Common Stock of the Company issued in connection with a joint
venture with a third party, which issuance has been approved by Board of
Directors of the Company, or any Common Stock issuable upon exercise of any
issued and outstanding warrants of the Company.
1.3 Subscriber understands that it will not earn interest on any
funds held by the Company prior to the date of closing of the Offering. The
Placement Agent and the Company may hold an initial closing of the Offering (the
"Initial Closing") to occur on or before November 27, 2001. The date of the
Initial Closing is hereinafter referred to as the "Initial Closing Date." The
Company may hold additional interim closings after the Initial Closing provided
that the terms of the Offering are the same for each closing. Any such interim
closings are each hereinafter referred to as an "Additional Closing" and shall
occur on one or more dates each hereinafter referred to as an "Additional
Closing Date." The Initial Closing Date and the Additional Closing Dates are
each hereinafter sometimes referred to as a "Closing Date." The last Closing is
sometimes referred to herein as the "Final Closing." The Final Closing shall
occur no later than five (5) business days after the Initial Closing. Upon
receipt by the Company of the requisite payment for all Securities to be
purchased by the subscribers whose subscriptions are accepted at the Initial
Closing or any Additional Closing, as applicable, and subject to the
satisfaction of certain conditions, the Securities so purchased will be issued
in the name of each such subscriber, and the name of such subscriber will be
registered on the stock transfer books and warrant register of the Company as
the record owner of such Securities. The Company will, immediately after each
Closing Date, issue to each subscriber participating in such closing a stock
certificate for the Securities so purchased.
1.4 Subscriber hereby agrees to be bound hereby upon (i) execution
and delivery to the Company, in care of the Placement Agent, of the signature
page to this Agreement and (ii) written acceptance on the Initial Closing Date
or an Additional Closing Date, as the case may be, by the Company and the
Placement Agent of Subscriber's subscription, which shall be confirmed by faxing
to the Subscriber the signature page to this Agreement that has been executed by
the Company (the "Subscription").
1.5 Prior to acceptance of this Agreement by the Company and the
Placement Agent, Subscriber agrees that the Company and Placement Agent may, as
they mutually agree in their sole and absolute discretion, reduce the
Subscription to any number of Securities that in the aggregate do not exceed the
number of Securities hereby applied for without any prior notice to or further
consent by Subscriber; provided, however, if any of Subscriber's Subscription is
so reduced, Subscriber may withdraw his entire Subscription. Subscriber hereby
irrevocably constitutes and appoints the Placement Agent and each officer of the
Placement Agent, each of the foregoing acting singularly, in each case with full
power of substitution, the true and lawful agent and attorney-in-fact of
Subscriber, with full power and authority in Subscriber's name, place and stead
to amend this Agreement, including, in each case, Subscriber's signature page
thereto, to effect any of the foregoing provisions of this Section 1.5.
1.6 Subscriber agrees and understands that the principals of the
Placement Agent may purchase Securities in this offering for their own account.
1.7 The Placement Agent shall deliver to each Subscriber copies of
the executed Subscription Agreement and notice of the Final Closing Date.
2. Offering Material.
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2.1 Subscriber represents and warrants that it is in receipt of and
that it has carefully read the following items:
(a) The Company's Annual Report on Form 10-K for the period
ended December 31, 2000 (the "Form 10-K");
(b) The Company's Current Reports on Form 10-Q for the
periods ended September 30, 2001, June 30, 2001 and March 31, 2001 (as amended
by Form 10-Q/A, filed on August 14, 2001);
(c) The Company's Current Report on Form 8-K filed on
January 26, 2001 (as amended by Form 8-K/A, filed on March 26, 2001);
(d) The Company's Registration Statement on Form S-3 filed
on April 3, 2001 (as amended by Form S-3/A on August 21, 2001); and
(e) All other documents filed by the Company with the
Securities and Exchange Commission (the "SEC") subsequent to the Company's Form
10-K and prior to the Closing Date.
The documents listed in this Section 2.1 shall be referred to herein as
the "Disclosure Documents."
3. Conditions to Subscriber's Obligations.
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3.1 The obligation of Subscriber to close the transaction
contemplated by this Agreement (the "Transaction") is subject to the
satisfaction on or prior to the Closing Date of the following conditions set
forth in Sections 3.2 through 3.5 hereof.
3.2 The Company shall have executed this Agreement and delivered the
same to the Placement Agent.
3.3 The Board of Directors of the Company shall have adopted
resolutions consistent with Section 4.1(d) below in a form reasonably acceptable
to the Placement Agent.
3.4 Subscriber shall have received copies of all documents and
information which it may have reasonably requested in connection with the
Offering.
3.5 The Company shall have caused its legal counsel to deliver to
Subscriber a legal opinion in substantially the form attached hereto as Appendix
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II.
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3.6 No stop order or suspension of trading shall have been imposed
by the Nasdaq National Market ("Nasdaq"), the SEC, or any other governmental
regulatory body with respect to public trading in shares of Common Stock of the
Company.
3.7 If so requested by Subscriber, the Company shall have delivered
to the custodian for the Subscriber duly executed certificates or agreements,
registered in the name of Subscriber's nominee, representing the Securities.
4. Representations and Warranties; Covenants; Survival.
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4.1 The Company represents and warrants to Subscriber that, at the
date of this Agreement and at each Closing Date on which Subscriber purchases
Securities:
(a) The Company and each of its material subsidiaries are
corporations duly incorporated, validly existing and in good standing under the
laws of their states of incorporation, with all requisite corporate power and
authority to carry on the business in which they are engaged and to own the
properties they own, and the Company has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The Company and each of its material subsidiaries are duly
qualified and licensed to do business and are in good standing in all
jurisdictions where the nature of their business makes such qualification
necessary, except where the failure to be qualified or licensed would not have a
material adverse effect on the business of the Company and its material
subsidiaries, taken as a whole.
(b) There are no legal actions or administrative proceedings
or investigations instituted, or to the best knowledge of the Company
threatened, against the Company, that could reasonably be expected to have a
material adverse effect on the business of the Company and its subsidiaries
taken as a whole, or which concerns the transactions contemplated by this
Agreement.
(c) The Company's audited consolidated financial statements
as of December 31, 2000, contained in the Form 10-K, including the notes
contained therein, fairly present the consolidated financial position of the
Company at the respective dates thereof and the results of its consolidated
operations for the periods purported to be covered thereby. Such financial
statements have been prepared in conformity with generally accepted accounting
principles consistently applied with prior periods subject to any comments and
notes contained therein. All liabilities, contingent and other, of the Company
and its subsidiaries, are set forth in the financial statements as of September
30, 2001 contained in the Form 10-Q, excepting only liabilities incurred in the
ordinary course of business subsequent to December 31, 2000, and liabilities of
the type not required under generally accepted accounting principles to be
reflected in such financial statements. Since September 30, 2001 there has been
no material adverse change in the financial condition of the Company from the
financial condition stated in such financial statements. Prior to the issuance
of shares contemplated by this Agreement, the Company has 45,998,609 shares of
Common Stock outstanding. The capitalization of the Company , including the
authorized capital stock, the number of shares issued and outstanding, the
number of shares issuable and reserved for issuance pursuant to the Company's
stock option plans, the number of shares issuable and reserved for issuance
pursuant to securities exercisable for, or convertible into or exchangeable for
any shares of capital stock as of the Closing Date is as described in Schedule
4.1(c) attached to this Agreement.
(d) The Company, by appropriate and required corporate
action, has, or will have prior to the Initial Closing, (i) duly authorized the
execution of this Agreement and the issuance and delivery of the Securities and
(ii) reserved for issuance sufficient shares of Common Stock as may be necessary
from time to time to be issued upon exercise of the Warrants (the "Underlying
Common Stock"). Neither the Securities nor the Underlying Common Stock are
subject to preemptive, anti-dilution or other rights of any stockholders of the
Company and when issued in accordance with the terms of this Agreement and the
Certificate of Incorporation of the Company, the Securities and the shares of
Underlying Common Stock will be validly issued, fully paid and nonassessable and
free and clear of all pledges, liens and encumbrances.
(e) Performance of this Agreement and compliance with the
provisions hereof will not violate any provision of any applicable law or of the
Certificate of Incorporation or Bylaws of the Company, or of any of its
subsidiaries, and, will not conflict with or result in any breach of any of the
terms, conditions or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon, any of the
properties or assets of the Company, or of any of its subsidiaries, pursuant to
the terms of any indenture, mortgage, deed of trust or other agreement or
instrument binding upon the Company, or any of its subsidiaries, other than such
breaches, defaults or liens which would not have a material adverse effect on
the Company and its subsidiaries taken as a whole. The Company is not in default
under any provision of its charter or by-laws or other organizational documents
or under any provision of any agreement or other instrument to which it is a
party or by which it is bound or of any law, governmental order, rule or
regulation so as to affect adversely in any material manner its business or
assets or its condition, financial or otherwise.
(f) The Disclosure Documents, taken together, do not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein to make the statements contained therein not
misleading.
(g) No representation or warranty made, nor any document,
statement, or financial statement prepared or furnished by the Company in
connection herewith, taken together, contains any untrue statement of material
fact, or omits to state a material fact necessary to make the statements or
facts contained herein or therein not misleading.
(h) This Agreement, including Appendix I, has been duly
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms.
(i) Other than the filing of a Form D with the SEC and any
state Blue Sky filings, which shall in each case be made prior to the Closing
Date, if so required, or if not so required, as soon after the Closing Date as
is reasonably practicable, no registration, authorization, approval,
qualification or consent of any court or governmental authority or agency is
necessary in connection with the execution and delivery of this Agreement or the
offering, issuance or sale of the Securities under this Agreement.
(j) The Company has timely filed with the Securities and
Exchange Commission (the "Commission") all documents required to be filed by the
Company under the Exchange Act of 1934, as amended (the "Exchange Act"). On
their respective dates of filing, the SEC Filings complied in all material
respects with the requirements of the Exchange Act and the rules and regulations
of the SEC.
(k) The Company is not now, and after the sale of the
Securities under this Agreement and the application of the net proceeds from the
sale of the Securities will not be, an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(l) Subject to the accuracy of the Subscriber's'
representations and warranties in Section 7 of this Agreement, the offer, sale,
and issuance of the Securities in conformity with the terms of this Agreement
constitute transactions exempt from the registration requirements of Section
5 of the Securities Act of 1933, as amended (the "Securities Act") and from the
registration or qualification requirements of the laws of any applicable state
or United States jurisdiction.
(m) Neither the Company, nor any of its affiliates, nor any
person acting on its or their behalf, has directly or indirectly made any offers
or sales in any security or solicited any offers to buy any security under
circumstances that would require registration under the Securities Act of the
issuance of the Securities to the Subscriber. The issuance of the Securities to
the Subscribers will not be integrated with any other issuance of the Company's
securities (past, current or future) for purposes of the Securities Act or any
applicable rules of Nasdaq. The Company will not make any offers or sales of any
security (other than the Securities) that would cause the offering of the
Securities to be integrated with any other offering of securities by the Company
for purposes of any registration requirement under the Securities Act or any
applicable rules of Nasdaq.
(n) The Company is eligible, and will take all action
required to continue to be eligible, to register the Shares for resale with the
SEC under Form S-3 promulgated under the Securities Act.
(o) The Company shall issue a press release and file a
Current Report on Form 8-K with the SEC regarding the closing of the Offering
within three (3) business days after the Final Closing.
(p) The Company has the sole and exclusive right to use the
Intangibles (as defined below) without infringing or violating the rights of any
third parties. There is no outstanding claim asserted by any person to the
ownership of or right to use any Intangibles or challenging or questioning the
validity or effectiveness of any license or agreement constituting a part of the
Intangibles. The Company has no knowledge of any claim that, or inquiry as to
whether, any product, activity or operation of the Company infringes upon or
involves, or has resulted in the infringement of, any proprietary right of any
other person, corporation or other entity; and no proceedings have been
instituted, are pending or are threatened that challenge the rights of the
Company with respect thereto. "Intangibles" means all patents, trademarks, trade
names, trade applications, service marks, registrations, copyrights, rights
under licenses and similar intangible rights and applications therefore of the
Company. The Company has taken and in the future will take all reasonable steps
necessary to protect the Intangibles from infringement by third parties.
(q) (i) Within 5 business days after the Company receives
documentation and the original share certificates evidencing that sales of
Securities were made while a Registration Statement covering the resale of such
Securities is effective under the Securities Act, or (ii) following any sale of
such Securities pursuant to Rule 144, or (iii) if such Securities are eligible
for sale under Rule 144(k), or (iv) if such legend is not required under
applicable requirements of the Securities Act (including judicial
interpretations and pronouncements issued by the Staff of the Commission, the
Company shall cause its transfer agent to remove the restrictive legend from the
Shares.
5. Transfer and Registration Rights.
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5.1 Subscriber acknowledges that it is acquiring the Securities and
the Underlying Common Stock for its own account and for the purpose of
investment and not with a view to any
distribution or resale thereof within the meaning of the Securities Act, and any
applicable state or other securities laws ("State Acts"). Subscriber further
agrees that it will not sell, assign, transfer or otherwise dispose of any of
the Securities or Underlying Common Stock in violation of the Securities Act or
State Acts and acknowledges that, in taking unregistered Securities, it must
continue to bear economic risk in regard to its investment for an indefinite
period of time because of the fact that such Securities and Underlying Common
Stock have not been registered under the Securities Act or State Acts and
further realizes that such Securities and Underlying Common Stock cannot be sold
unless subsequently registered under the Securities Act and State Acts or an
exemption from such registration is available. Subscriber further recognizes
that the Company is not assuming any obligation to register such Securities or
Underlying Common Stock except as expressly set forth herein. Subscriber also
acknowledges that appropriate legends reflecting the status of the Securities
and Underlying Common Stock under the Securities Act and State Acts may be
placed on the face of the certificates for such Securities and Underlying Common
Stock at the time of their transfer and delivery to the holder thereof. This
Agreement is made with Subscriber in reliance upon Subscriber's above
representations.
5.2 The Securities and Underlying Common Stock issued pursuant to
this Agreement may not be transferred except in a transaction which is in
compliance with the Securities Act and State Acts. Except as provided hereafter
with respect to registration of the Securities and Underlying Common Stock or
sale under Rule 144 contemplated in Appendix I, it shall be a condition to any
such transfer that the Company shall be furnished with an opinion of counsel,
which counsel and opinion shall be reasonably satisfactory to the Company, to
the effect that the proposed transfer would be in compliance with the Securities
Act and State Acts. Notwithstanding the foregoing, furnishing such opinion of
counsel shall not be a condition to any transfer of Common Stock to an affiliate
of Subscriber, including for this purpose if Subscriber is an investment
company, any fund or account advised by Subscriber's investment adviser or any
affiliate thereof.
5.3 The Company hereby grants to Subscriber the registration rights
set forth in Appendix I attached hereto. Appendix I is incorporated into, and
made a part of, this Agreement.
6. Closing.
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6.1 The closing of the sale of the Securities to Subscriber shall
take place at the offices of the Company at such time as the Company and
Placement Agent shall mutually agree, provided that the Final Closing shall
occur no later than five (5) business days after the Initial Closing.
7. Subscriber Representations. Subscriber hereby represents, warrants
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and acknowledges and agrees with the Company and Placement Agent as follows:
7.1 Subscriber has been furnished with and has carefully read the
Disclosure Documents as set forth in Section 2.1 hereto and is familiar with the
terms of the Offering. With respect to individual or partnership tax and other
economic considerations involved in this investment, Subscriber is not relying
on the Company or the Placement Agent (or any agent or representative of any of
them). Subscriber has carefully considered and has, to the extent Subscriber
believes such discussion necessary, discussed with Subscriber's legal, tax,
accounting and financial advisers the suitability of an investment in the
Securities for Subscriber's particular tax and financial situation.
7.2 Subscriber has had an opportunity to inspect relevant documents
relating to the organization and operations of the Company. Subscriber
acknowledges that all documents, records and books pertaining to this investment
which Subscriber has requested have been made available for inspection by
Subscriber and Subscriber's attorney, accountant or other adviser(s).
7.3 Subscriber and/or Subscriber's advisor(s) has/have had a
reasonable opportunity to ask questions of and receive answers and to request
additional relevant information from a person or persons acting on behalf of the
Company concerning the Offering.
7.4 Subscriber is not subscribing for the Securities as a result of
or subsequent to any advertisement, article, notice or other communication
published in any newspaper, magazine or similar media or broadcast over
television or radio or presented at any seminar.
7.5 Subscriber is an "accredited investor," within the meaning of
Rule 501(a) of Regulation D under the Securities Act ("Regulation D").
Subscriber, by reason of Subscriber's business or financial experience or the
business or financial experience of Subscriber's professional advisers who are
unaffiliated with and who are not compensated by the Company or the Placement
Agent or any affiliate of either of them, directly or indirectly, can be
reasonably assumed to have the capacity to protect Subscriber's own interests in
connection with the transaction. Subscriber further acknowledges that he has
read the written materials provided by the Company.
7.6 Subscriber has adequate means of providing for Subscriber's
current financial needs and contingencies, is able to bear the substantial
economic risks of an investment in the Securities for an indefinite period of
time, has no need for liquidity in such investment and, at the present time,
could afford a complete loss of such investment.
7.7 Subscriber has such knowledge and experience in financial, tax
and business matters so as to enable Subscriber to use the information made
available to Subscriber in connection with the Offering to evaluate the merits
and risks of an investment in the Securities and to make an informed investment
decision with respect thereto.
7.8 Subscriber acknowledges that the Securities and Underlying
Common Stock herein subscribed for have not been registered under the Securities
Act or under any State Act. Subscriber understands further that in absence of an
effective Registration Statement, the Securities and Underlying Common Stock can
only be sold pursuant to an exemption from registration, such as Rule 144
promulgated under the Securities Act, which requires, among other conditions,
that the Common Stock must be held for a minimum of one (1) year.
7.9 Subscriber recognizes that investment in the Securities involves
substantial risks. Subscriber further recognizes that no federal or state
agencies have passed upon this offering of the Securities or made any finding or
determination as to the fairness of this investment.
7.10 Subscriber acknowledges that each certificate representing the
Securities and Underlying Common Stock shall contain a legend substantially in
the following form:
THESE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES
ACT") OR UNDER APPLICABLE STATE SECURITIES
LAWS AND MAY NOT BE SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER
THE SECURITIES ACT AND ANY APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AVAILABLE
EXEMPTIONS FROM SUCH REGISTRATION, PROVIDED
THAT THE SELLER DELIVERS TO THE COMPANY AN
OPINION OF COUNSEL (WHICH OPINION AND COUNSEL
ARE SATISFACTORY TO THE COMPANY)CONFIRMING
THE AVAILABILITY OF SUCH EXEMPTION. INVESTORS
SHOULD BE AWARE THAT THEY MAY BE REQUIRED TO
BEAR THE FINANCIAL RISKS OF THIS INVESTMENT FOR
AN INDEFINITE PERIOD OF TIME.
7.11 If this Agreement is executed and delivered on behalf of a
partnership, corporation, trust or estate: (i) such partnership, corporation,
trust or estate has the full legal right and power and all authority and
approval required (a) to execute and deliver, or authorize execution and
delivery of, this Agreement and all other instruments executed and delivered by
or on behalf of such partnership, corporation, trust or estate in connection
with the purchase of the Securities, (b) to delegate authority pursuant to a
power of attorney and (c) to purchase and hold such Securities; (ii) the
signature of the party signing on behalf of such partnership, corporation, trust
or estate is binding upon such partnership, corporation, trust or estate; and
(iii) such partnership, corporation or trust has not been formed for the
specific purpose of acquiring the Securities, unless each beneficial owner of
such entity is qualified as an "accredited investor" within the meaning of
Regulation D and has submitted information substantiating such individual
qualification.
7.12 If Subscriber is a retirement plan or is investing on behalf of
a retirement plan, Subscriber acknowledges that investment in the Securities
poses risks in addition to those associated with other investments, including
the inability to use losses generated by an investment in the Securities to
offset taxable income.
7.13 The information furnished by Subscriber in the Subscriber
Questionnaire signed by Subscriber is true and accurate as of the date thereof
and as of the Closing Date of the Subscription and any other Subscription
executed by Subscriber in the Offering.
8. Understandings.
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Subscriber understands, acknowledges and agrees with the Company and
the Placement Agent as follows:
8.1 Subscriber hereby acknowledges and agrees that, upon acceptance
of the Company and Placement Agent pursuant to Section 1.4, the Subscription
hereunder is irrevocable (subject to any contrary provisions hereof) by
Subscriber, that, except as required by law, Subscriber is not entitled to
cancel, terminate or revoke this Agreement or any agreements of Subscriber
hereunder (subject to any contrary provisions hereof) and that this Subscription
Agreement and such other agreements shall survive the death or disability of
Subscriber and shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors, legal
representatives and permitted assigns. If the Subscriber executing this
Subscription Agreement is
more than one natural person, the obligations of Subscriber hereunder shall be
joint and several and the agreements, representations, warranties and
acknowledgments herein contained shall be deemed to be made by and be binding
upon each such person and his or her heirs, executors, administrators,
successors, legal representatives and permitted assigns.
8.2 No federal or state agency has made any findings or
determination as to the fairness of the terms of this Offering for investment
nor any recommendations or endorsement of the Securities.
8.3 The Offering is intended to be exempt from registration under
the Securities Act by virtue of Section 4(2) of the Securities Act and the
provisions of Rule 506 of Regulation D thereunder, which is in part dependent
upon the truth, completeness and accuracy of the statements made by Subscriber
herein and in the Subscriber Questionnaire.
8.4 It is understood that in order not to jeopardize the Offering's
exempt status under Section 4(2) of the Securities Act and Regulation D, any
transferee may, at a minimum, be required to fulfill the investor suitability
requirements thereunder.
8.5 The Placement Agent will receive compensation from the Company
in connection with the Offering but is not guaranteeing or assuming
responsibility for the operation or possible liability of the Company,
including, without limitation, compliance by the Company with the agreements
entered into in connection with the Offering, and the Placement Agent will not
supervise or participate in the operation or management of the Company. The
Company shall indemnify and hold harmless the Subscriber from and against all
fees, commissions or other payments owing by the Company to the Placement Agent
or any other person or firm acting on behalf of the Company hereunder.
8.6 No person or entity acting on behalf, or under the authority, of
Subscriber is or will be entitled to any broker's, finder's or similar fee or
commission in connection with this Subscription.
8.7 IN MAKING AN INVESTMENT DECISION, SUBSCRIBER MUST RELY ON ITS
OWN EXAMINATION OF THE COMPANY AND THE TERMS OF THE OFFERING, INCLUDING THE
MERITS AND RISKS INVOLVED. THE SECURITIES HAVE NOT BEEN RECOMMENDED BY ANY
FEDERAL OR STATE SECURITIES COMMISSION OR REGULATORY AUTHORITY. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
8.8 The Company will cause the Shares and the Common Stock
underlying the Warrants to be listed on the principal national securities
exchange, or included in an inter-dealer quotation system of a registered
national securities association, on or in which securities of the same class or
series issued by the Company are then listed or included.
9. Miscellaneous.
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9.1 Except as set forth elsewhere herein, any notice or demand to be
given or served in connection herewith shall be deemed to be sufficiently given
or served for all purposes by being sent as registered or certified mail, return
receipt requested, postage prepaid, in the case of the Company, addressed to it
at the address set forth below:
InteliData Technologies Corporation
00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Title: Vice President, General Counsel and Secretary
and in the case of Subscriber to the address for correspondence set forth
on the Subscriber Questionnaire.
9.2 This Agreement shall be enforced, governed and construed in all
respects in accordance with the laws of the State of Delaware, and shall be
binding upon Subscriber, Subscriber's successors and assigns and if Subscriber
is a natural person on their heirs, estate, legal representatives, and shall
inure to the benefit of the Company, the Placement Agent, and their respective
successors and assigns. If any provision of this Agreement is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed to be modified to conform with such statute or rule of law. Any
provision hereof that may prove invalid or unenforceable under any law shall not
affect the validity or enforceability of any other provision hereof.
9.3 In any action, proceeding or counterclaim brought to enforce any
of the provisions of this Agreement or to recover damages, costs and expenses in
connection with any breach of the Agreement, the prevailing party shall be
entitled to be reimbursed by the opposing party for all of the prevailing
party's reasonable outside attorneys' fees, costs and other reasonable
out-of-pocket expenses incurred in connection with such action, proceeding or
counterclaim.
9.4 This Agreement (including Appendix I) and the Subscriber
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Questionnaire constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth herein. The Company
acknowledges that all material facts upon which it has relied in forming its
decision to enter into this Agreement are expressly set forth herein and further
acknowledges that the Subscriber has not made any representations, express or
implied, which are not set expressly set forth herein. This Agreement supercedes
all prior agreements and understandings among the parties hereto with respect to
the subject matter hereof.
9.5 The Company shall indemnify, defend and hold harmless Subscriber
and each of its agents, partners, members, officers, directors, representatives,
or affiliates (collectively, the "Subscriber Indemnities") against any and all
losses, liabilities, claims and expenses, including reasonable attorneys' fees
("Losses"), sustained by Subscriber Indemnities resulting from, arising out of,
or connected with any material inaccuracy in, breach of, or non-fulfillment of
any representation, warranty, covenant or agreement made by or other obligation
of the Company contained in this Agreement (including the Exhibits hereto) or in
any document delivered in connection herewith.
9.6 The Company shall not issue any public statement or press
release, or otherwise disclose in any manner the identity of the Subscriber or
that Subscriber has purchased the Securities, without the prior written consent
of the Subscriber, except as may be required by applicable law; provided,
--------
however, that the Company may disclose such information in any registration
-------
statement filed with the SEC pursuant to the registration rights provisions set
forth in Appendix I hereto.
----------
10. Signature. The signature page of this Agreement is contained
---------
as part of the applicable Subscription Package, entitled "Signature Page."
SUBSCRIPTION AGREEMENT GENERAL INSTRUCTIONS
General Instructions
These Subscription Documents contain all documents necessary to
subscribe for shares ("Shares") of Common Stock, par value $.001 per Share
("Common Stock"), of InteliData Technologies Corporation, a Delaware corporation
(the "Company").
You may subscribe for Shares and Warrants by completing the
Subscription Agreement in the following manner:
1. On line (a) of the signature page state the number of Shares
you wish to purchase.
2. On line (b) of the signature page state the total cost of the
Shares you wish to purchase. To obtain the cost, multiply the number of Shares
you desire to purchase by the purchase price per Share set forth therein.
3. On line (c) of the signature page state the number of shares of
Common Stock that the Common Stock Purchase Warrant to be issued shall be
exercisable into, by multiplying the total number of Shares subscribed for on
line (a) by 0.50.
4. Please complete the detailed investment and other
representations in the Subscriber Questionnaire to evidence your suitability for
an investment in the Company. All purchasers must complete and sign the
Subscription Agreement and the Subscriber Questionnaire.
5. Sign and state your address, telephone number and social
security or other taxpayer identification number on the lines provided on the
signature page to the Subscription Agreement and deliver the completed
Subscription Agreement and Subscriber Questionnaire with payment of the entire
purchase price of the Shares subscribed for as set forth below. Payment should
be made in United States Dollars by wire transfer to:
Bank of Oklahoma
ABA# 1039-00036
Credit Acct #: 600024642/Trust Funds
For further credit Acct #: 75-4301-00-0 InteliData Technologies
Corporation Escrow
Attn. Xxxxxx Xxxxxx
The Subscription Agreement Signature Page must be completed and signed by each
Subscriber.
Send all documents to:
Stonegate Securities, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone No.: 214/000-0000
Facsimile No.: 214/987-1981
THE COMPLETED SUBSCRIPTION AGREEMENT AND SUBSCRIBER QUESTIONNAIRE
SHOULD BE RETURNED IN ITS ENTIRETY TO THE PLACEMENT AGENT DESIGNATED ABOVE.
Acceptance of Delivery
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of the completed Subscription Agreement will be
determined by the Company, which determination will be final and binding. The
Company reserves the absolute right to reject any completed Subscription
Agreement, in its sole and absolute discretion. The Company also reserves the
right to waive any irregularities in, or conditions of, the submission of
completed Subscription Agreements, and the Company's interpretation of the terms
and conditions for the purchase of Shares (including these instructions) shall
be final and binding. The Company shall be under no duty to give any
notification of
irregularities in connection with any attempted subscription for Shares or incur
any liability for failure to give such notification. Until such irregularities
have been cured or waived, no subscription for Shares shall be deemed to have
been made. Any Subscription Agreement that is not properly completed and as to
which defects have not been cured or waived will be returned by the Company to
the subscriber as soon as practicable.
SUBSCRIPTION AGREEMENT SIGNATURE PAGE
The undersigned investor hereby certifies that he or she (i) has received and
relied solely upon information provided by the Company, (ii) agrees to all the
terms and conditions of this Subscription Agreement, (iii) meets the suitability
standards set forth in this Subscription Agreement and (iv) is a resident of the
state or foreign jurisdiction indicated below.
The undersigned subscribes for __________ shares of Common Stock.
The total cost of the Shares subscribed for, at $2.75 per share,
is $__________ (the "Purchase Price"). The number of shares of
Common Stock underlying the Common Stock Purchase Warrant, shall
be equal to the number of Shares multiplied by 0.50, which is
equal to ____________.
-----------------------------------
Name of Subscriber (Print) If other than Individual check
one and indicate capacity of
signatory under the signature:
-----------------------------------
Name of Joint Subscriber (if any)(Print)
| | Trust
| | Estate
| | Uniform Gifts to Minors
Act of State of _______
| | Attorney-in-fact
----------------------------------- | | Corporation
Signature of Subscriber | | Other __________________
If Joint Ownership, check one:
----------------------------------- | | Joint Tenants with Right
Signature of Joint Subscriber(if any) of Survivorship
| | Tenants in Common
| | Tenants by Entirety
----------------------------------- | | Community Property
Capacity of Signatory (if applicable)
Backup Withholding Statement:
Please check this box only if the
----------------------------------- Subscriber is subject to:
Social Security or Taxpayer
Identification Number | | backup withholding.
-----------------------------------
Residence Address Foreign Person:
Please check this box only if the
Subscriber is a:
-----------------------------------
City State Zip Code | | nonresident alien,
foreign corporation,
foreign partnership,
Telephone ( ) __________________ foreign trust or
foreign estate.
Telecopy No. ______________________
The Subscriber agrees to the terms of this Subscription Agreement and, as
required by the Regulations pursuant to the Internal Revenue Code, certifies
under penalty of perjury that (1) the Social Security Number or Taxpayer
Identification Number and address provided above is correct, (2) the Subscriber
is not subject to backup withholding (unless the Backup Withholding Statement
box is checked) either because he has not been notified that he is subject to
backup withholding as a result of a failure to report all interest or dividends
or because the Internal Revenue Service has notified him that he is no longer
subject to backup withholding and (3) the Subscriber (unless the Foreign Person
box above is checked) is not a nonresident alien, foreign partnership, foreign
trust or foreign estate.
THE SUBSCRIPTION FOR _____________ SHARES OF COMMON STOCK AND __________ COMMON
STOCK PURCHASE WARRANTS OF INTELIDATA TECHNOLOGIES CORPORATION BY THE ABOVE
NAMED SUBSCRIBER(S) IS ACCEPTED AS OF ________________, 2001.
INTELIDATA TECHNOLOGIES CORPORATION
By: _____________________________________
Title:___________________________________
Appendix I
Registration Rights
1. Definitions.
1.1 As used in this Appendix I, the following terms shall have the
meanings specified below:
(a) "Affiliate," of any specified Person means any other
Person who directly, or indirectly through one or more intermediaries, is in
control of, is controlled by, or is under common control with, such specified
Person. For purposes of this definition, control of a Person means the power,
directly or indirectly, to direct or cause the direction of the management and
policies of such Person whether by contract, securities ownership or otherwise;
and the terms "controlling" and "controlled" have the respective meanings
correlative to the foregoing.
(b) "Commission" means the Securities and Exchange
Commission.
(c) "Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder, or
any similar successor statute.
(d) "Investors" means the investors purchasing Registrable
Securities pursuant to a Subscription Agreement and any permitted transferee or
assignee of Registrable Securities who agrees to become bound by all of the
terms and provisions of this Appendix I and the Subscription Agreements.
(e) "Person" means any individual, partnership, corporation,
limited liability company, joint stock company, association, trust,
unincorporated organization, or a government agency or political subdivision
thereof.
(f) "Prospectus" means the prospectus (including any
preliminary prospectus and/or any final prospectus filed pursuant to Rule 424(b)
under the Securities Act and any prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance on Rule 430A under the Securities Act) included in the
Registration Statement, as amended or supplemented by any prospectus supplement
with respect to the terms of the offering of any portion of the Registrable
Securities covered by the Registration Statement and by all other amendments and
supplements to such prospectus, including all material incorporated by reference
in such prospectus and all documents filed after the date of such prospectus by
the Company under the Exchange Act and incorporated by reference therein.
(g) "Public Offering" means an offer registered with the
Commission and the appropriate state securities commissions by the Company of
its Common Stock and made pursuant to the Securities Act.
(h) "Registrable Securities" means the shares of Common
Stock and the shares of Common Stock underlying the Warrants purchased pursuant
to the Subscription Agreements; provided, however, a share of Common Stock shall
cease to be a Registrable Security for purposes of this Appendix I when it no
longer is a Restricted Security.
(i) "Registration Statement" means a registration statement
of the Company filed on Form S-3 under the Securities Act providing for the
registration of, and the sale on a continuous or delayed basis by the holders
of, all of the Registrable Securities pursuant to Rule 415 under the Securities
Act, including the Prospectus contained therein and forming a part thereof, any
amendments to such registration statement and supplements to such Prospectus,
and all exhibits and other material incorporated by reference in such
registration statement and Prospectus. In the event that Form S-3 is unavailable
for such a registration, the Company shall use such other form as is available
for such a registration.
(j) "Restricted Security" means any share of Common Stock
except any that(i) have been registered pursuant to an effective registration
statement under the Securities Act and sold in a manner contemplated by the
prospectus included in such registration statement, (ii) have been transferred
in compliance with the resale provisions of Rule 144 under the Securities Act
(or any successor provision thereto) or is transferable pursuant to paragraph
(k) of Rule 144 under the Securities Act (or any successor provision thereto),
or (iii) otherwise has been transferred and a new share of Common Stock not
subject to transfer restrictions under the Securities Act has been delivered by
or on behalf of the Company.
(k) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder, or any
similar successor statute.
(l) "Subscription Agreements" means the Subscription
Agreement to which this Appendix I is attached and the other subscription
agreements executed as part of the Offering (as defined in the Subscription
Agreement).
1.2 All capitalized terms used and not defined herein have the
respective meaning assigned to them in the Subscription Agreement.
2. Registration.
------------
2.1 Filing and Effectiveness of Registration Statement. The Company
---------------------------------------------------
shall prepare and file with the Commission not later than fifteen business days
following the Final Closing (as that term is defined in the accompanying
Subscription Agreement) (the "Filing Deadline") a Registration Statement
relating to the offer and sale of the Registrable Securities by the Investors
and shall use its best efforts to cause the Commission to declare such
Registration Statement effective under the Securities Act as promptly as
practicable, but not later than 90 days after the Final Closing. The shares of
Common Stock issued in the Offering, and the shares of Common Stock underlying
warrants issued to Stonegate Securities, Inc., shall be included in such
Registration Statement. The Company shall notify the Investors in writing by
telecopy or e-mail notice that such Registration Statement has been declared
effective by the Commission on the date of such declaration by the Commission.
The Company agrees to keep such Registration Statement effective until the
earlier of: (i) the passage of three years from the effective date of such
Registration Statement; or (ii) the date on which all Registrable Securities may
be resold by the Investors by reason of Rule 144(k) under the Securities Act or
any other rule of similar effect.
2.2 Registration Default. If the Registration Statement covering the
---------------------
Registrable Securities required to be filed by the Company pursuant to Section
2(a) is not filed with the Commission by the Filing Deadline (the "Initial
Date"), then the Company shall make the payments to the Investors as provided in
the next sentence as liquidated damages and not as a penalty. The amount to be
paid by the Company to the Investors shall be determined as of each Computation
Date
(as defined below), and such amount shall be equal to 2.5% (the "Liquidated
Damage Rate") of the Purchase Price (as defined in the Subscription Agreement)
for the period from the Initial Date to the first Computation Date, and for each
30-day period of any subsequent Computation Dates thereafter, calculated on a
pro rata basis to the date on which the Registration Statement is filed with the
Commission (the "Periodic Amount") provided, however, that in no event shall the
liquidated damages paid to any single Investor be less than $25,000. The full
Periodic Amount shall be paid by the Company to the Investors, pro rata, by wire
transfer of immediately available funds within three days after each Computation
Date.
As used in this Section 2(b), "Computation Date" means the date which is 30
days after the Initial Date and, if the Registration Statement to be filed by
the Company pursuant to Section 2(a) has not theretofore been filed with the
Commission, each date which is 30 days after the previous Computation Date until
such Registration Statement is so filed. Notwithstanding the above, if the
Registration Statement covering the Registrable Securities required to be filed
by the Company pursuant to Section 2(a) hereof is not filed with the Commission
by the Filing Deadline, the Company shall be in default of the terms of this
Appendix I.
2.3 Piggyback Registration Rights. (i) Until such date as the
------------------------------
Registration Statement to be filed in accordance with Section 2(a) is declared
effective by the Commission, if the Company proposes to register any of its
Common Stock or any other shares of common stock of the Company under the
Securities Act (other than a registration (A) on Form S-8 or S-4 or any
successor or similar forms, (B) relating to Common Stock or any other shares of
common stock of the Company issuable upon exercise of employee or consultant
share options or in connection with any employee benefit or similar plan of the
Company or (C) in connection with a direct or indirect acquisition by the
Company of another Person or any transaction with respect to which Rule 145 (or
any successor provision) under the Securities Act applies), whether or not for
sale for its own account, it will each such time, give prompt written notice at
least 20 days prior to the anticipated filing date of the registration statement
relating to such registration to the Investors, which notice shall set forth
such Investors' rights under this Section 2(c) and shall offer the Investors the
opportunity to include in such registration statement such number of Registrable
Securities as the Investors may request. Upon the written request of an Investor
made within 10 days after the receipt of notice from the Company (which request
shall specify the number of Registrable Securities intended to be disposed of by
such Investors), the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities that the
Company has been so requested to register by the Investors, to the extent
requisite to permit the disposition of the Registrable Securities to be so
registered; provided, however, that (A) if such registration involves a Public
Offering, the Investors must sell their Registrable Securities to the
underwriters on the same terms and conditions as apply to the Company and (B)
if, at any time after giving written notice of its intention to register any
Common Stock pursuant to this Section 2(c) and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such Common Stock, the
Company shall give written notice to the Investors and, thereupon, shall be
relieved of its obligation to register any Registrable Securities in connection
with such registration. The Company's obligations under this Section 2(c) shall
terminate on the date that the Registration Statement to be filed in accordance
with Section 2(a) is declared effective by the Commission. (ii) If a
registration pursuant to this Section 2(c) involves a Public Offering and the
managing underwriter thereof advises the Company that, in its view, the number
of shares of Common Stock, if any, or other shares of Common Stock that the
Company and the Investors intend to include in such registration exceeds the
largest number of shares of Common Stock (including any other shares of Common
Stock or warrants of the Company) that can be sold without having an
adverse effect on such Public Offering (the "Maximum Offering Size"), the
Company will include in such registration only that number of shares of Common
Stock which does not exceed the Maximum Offering Size, in the following order of
priorities: (1) first, all securities the Company proposes to sell for its own
account, (2) second, up to the full number of securities proposed to be
registered for the account of the holders of securities entitled to inclusion of
their securities in the Registration Statement by reason of demand registration
rights, and (3) third, the securities requested to be registered by other
holders of securities entitled to participate in the registration, drawn from
them pro-rata based on the number of shares each has requested to be included in
such registration and the Investors pursuant to this Appendix I.
If as a result of the proration provisions of this Section 2(c), the
Investors are not entitled to include all such Registrable Securities in such
registration, such Investors may elect to withdraw their request to include any
Registrable Securities in such registration.
Notwithstanding the foregoing, the Company shall have no obligations under
this Section 2(c) hereof at any time that such Registrable Securities are the
subject of an effective registration statement.
3. Obligations of the Company. In connection with the registration of the
---------------------------
Registrable Securities, the Company shall use its reasonable best efforts to:
3.1 Subject to the provisions of Section 3(r) hereof, promptly (i)
prepare and file with the Commission such amendments (including post-effective
amendments) to the Registration Statement and supplements to the Prospectus as
may be necessary to keep the Registration Statement continuously effective and
in compliance with the provisions of the Securities Act applicable thereto so as
to permit the Prospectus forming part thereof to be current and useable by
Investors for resales of the Registrable Securities for a period of three years
from the date the Registration Statement is first declared effective by the
Commission (the "Effective Time") or such shorter period that will terminate
when all the Registrable Securities covered by the Registration Statement have
been sold pursuant thereto in accordance with the plan of distribution provided
in the Prospectus, transferred pursuant to Rule 144 under the Securities Act or
otherwise transferred in a manner that results in the delivery of new securities
not subject to transfer restrictions under the Securities Act (the "Registration
Period") and (ii) take all lawful action such that each of (A) the Registration
Statement and any amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, not misleading
and (B) the Prospectus forming part of the Registration Statement, and any
amendment or supplement thereto, does not at any time during the Registration
Period include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the Company's obligations hereunder
shall terminate as to any investor at such time as that Investor's Registrable
Securities can be sold under Rule 144(k);
3.2 During the Registration Period, comply with the provisions of
the Securities Act with respect to the Registrable Securities of the Company
covered by the Registration Statement until such time as all of such Registrable
Securities have been disposed of in accordance with the intended methods of
disposition by the Investors as set forth in the Prospectus forming part of the
Registration Statement;
3.3 (i) Prior to the filing with the Commission of any Registration
Statement (including any amendments thereto) and the distribution or delivery of
any Prospectus (including any supplements thereto), provide draft copies thereof
(including a copy of the accountant's consent letter to be included in the
filing) to the Investors and Stonegate Securities, Inc. ("Stonegate") and
reflect in such documents all such comments as the Investors and Stonegate
reasonably may propose; and (ii) furnish to Stonegate for delivery to each
Investor whose Registrable Securities are included in the Registration
Statement, (A) promptly after the same is prepared and publicly distributed,
filed with the Commission, or received by the Company, one copy of the
Registration Statement, each Prospectus, and each amendment or supplement
thereto, and (B) such number of copies of the Prospectus and all amendments and
supplements thereto and such other documents, as such Investor may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Investor;
3.4 (i) Register or qualify the Registrable Securities covered by
the Registration Statement under such securities or "blue sky" laws of all
jurisdictions requiring blue sky registration or qualification, (ii) prepare and
file in such jurisdictions such amendments (including post-effective amendments)
and supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof at all times during the Registration Period,
(iii) take all such other lawful actions as may be necessary to maintain such
registrations and qualifications in effect at all times during the Registration
Period, and (iv) take all such other lawful actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such jurisdictions;
provided, however, that the Company shall not be required in connection with any
of its obligations under this Section 3(d) to (A) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(d), (B) subject itself to general taxation in any such jurisdiction or
(C) file a general consent to service of process in any such jurisdiction;
3.5 As promptly as practicable after becoming aware of such event,
notify each Investor of the occurrence of any event, as a result of which the
Prospectus included in the 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, in
light of the circumstances under which they were made, not misleading, and
promptly prepare an amendment to the Registration Statement and supplement to
the Prospectus to correct such untrue statement or omission, and deliver a
number of copies of such supplement and amendment to each Investor as such
Investor may reasonably request;
3.6 Notify each Investor who holds Registrable Securities being sold
(or, in the event of an underwritten offering, the managing underwriters) of the
issuance by the Commission of any stop order or other suspension of the
effectiveness of the Registration Statement on the date of receipt of any such
stop order or other suspension, and take all lawful action to effect the
withdrawal, recession or removal of such stop order or other suspension;
3.7 Cause all the Registrable Securities covered by the Registration
Statement to be listed, not later than the date that Registration Statement is
declared effective by the Commission, on a principal national securities
exchange, or included in an inter-dealer quotation system of a registered
national securities association, on or in which securities of the same class or
series issued by the Company are then listed or included;
3.8 Maintain a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of the
Registration Statement;
3.9 Cooperate with the Investors who hold Registrable Securities
being offered to facilitate the timely preparation and delivery of certificates
for the Registrable Securities to be offered pursuant to the Registration
Statement and enable such certificates for the Registrable Securities to be in
such denominations or amounts, as the case may be, as the Investors reasonably
may request and registered in such names as the Investors may request; and,
within three business days after a registration statement which includes
Registrable Securities is declared effective by the Commission, deliver and
cause legal counsel selected by the Company to deliver to the transfer agent for
the Registrable Securities (with copies to the Investors whose Registrable
Securities are included in such registration statement) an appropriate
instruction and, to the extent necessary, an opinion of such counsel;
3.10 Take all such other lawful actions reasonably necessary to
expedite and facilitate the disposition by the Investors of their Registrable
Securities in accordance with the intended methods therefore provided in the
Prospectus which are customary under the circumstances;
3.11 Make generally available to its security holders as soon as
practicable, but in any event not later than three (3) months after (i) the
effective date (as defined in Rule 158(c) under the Securities Act) of the
Registration Statement, and (ii) the effective date of each post-effective
amendment to the Registration Statement, as the case may be, an earnings
statement of the Company and its subsidiaries complying with Section 11(a) of
the Securities Act and the rules and regulations of the Commission thereunder
(including, at the option of the Company, Rule 158);
3.12 In the event of an underwritten offering, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to the
Registration Statement such information as the managers reasonably agree should
be included therein and to which the Company does not reasonably object and make
all required filings of such Prospectus supplement or post-effective amendment
as soon as practicable after it is notified of the matters to be included or
incorporated in such Prospectus supplement or post-effective amendment;
3.13 In connection with any underwritten offering, make such
representations and warranties to the Investors participating in such
underwritten offering and to the managers, in form, substance and scope as are
customarily made by the Company to underwriters in secondary underwritten
offerings;
3.14 In connection with any underwritten offering, obtain opinions of
counsel to the Company (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managers) addressed to the
underwriters, covering such matters as are customarily covered in opinions
requested in secondary underwritten offerings (it being agreed that the matters
to be covered by such opinions shall include, without limitation, as of the date
of the opinion and as of the date the Registration Statement is first declared
effective or most recent post- effective amendment thereto, as the case may be,
the absence from the Registration Statement and the Prospectus, including any
documents incorporated by reference therein, of an untrue statement of a
material fact or the omission of a material fact required to be stated therein
or necessary to make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not misleading, subject
to customary limitations);
3.15 In connection with any underwritten offering, obtain "cold
comfort" letters and updates thereof from the independent public accountants of
the Company (and, if necessary, from the independent public accountants of any
subsidiary of the Company or of any business acquired by the Company, in each
case for which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each underwriter
participating in such underwritten offering (if such underwriter has provided
such letter, representations or documentation, if any, required for such cold
comfort letter to be so addressed), in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
secondary underwritten offerings;
3.16 In connection with any underwritten offering, deliver such
documents and certificates as may be reasonably required by the managers, if
any; and
3.17 In the event that any broker-dealer registered under the
Exchange Act shall be an "Affiliate" (as defined in Rule 2729(b)(1) of the rules
and regulations of the National Association of Securities Dealers, Inc. (the
"NASD Rules") (or any successor provision thereto)) of the Company or has a
"conflict of interest" (as defined in Rule 2720(b)(7) of the NASD Rules (or any
successor provision thereto)) and such broker-dealer shall underwrite,
participate as a member of an underwriting syndicate or selling group or assist
in the distribution of any Registrable Securities covered by the Registration
Statement, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company shall assist such broker-dealer in complying
with the requirements of the NASD Rules, including, without limitation, by (A)
engaging a "qualified independent underwriter" (as defined in Rule 2720(b)(15)
of the NASD Rules (or any successor provision thereto)) to participate in the
preparation of the Registration Statement relating to such Registrable
Securities, to exercise usual standards of due diligence in respect thereof and
to recommend the public offering price of such Registrable Securities, (B)
indemnifying such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 5 hereof, and (C) providing
such information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the NASD Rules.
3.18 Notwithstanding anything to the contrary in Section 3, at any
time after the Registration Statement has been declared effective, the Company
may delay the disclosure of material non-public information concerning the
Company, the disclosure of which at the time is not, in the good faith opinion
of the Board of Directors of the Company and its counsel, in the best interest
of the Company (a "Grace Period"); provided, that the Company shall promptly (i)
notify the Investors in writing of the existence of material non-public
information giving rise to a Grace Period and the date on which the Grace Period
will begin, and (ii) notify the Investors in writing in advance of, or on the
same date on which, the Grace Period ends; and, provided further, that during
any consecutive 365 day period, there shall be only two Grace Periods, such
Grace Periods together in total not to exceed 90 days. For purposes of
determining the length of a Grace Period above, the Grace Period shall begin on
and include the date the holders receive the notice referred to in clause (i)
and shall end on and include the date specified as the Grace Period ending date
in the notice referred to in clause (ii). If at any time after the Registration
Statement has been declared effective, the Company delays disclosure of material
non-public information concerning the Company, other than during a permitted
Grace Period as described above, the Company shall make payments to the
Investors as provided in the next sentence as liquidated damages intended by the
parties to compensate the Investors in part for the incremental costs and
investment risks associated with holding the Registrable Securities as
restricted securities and not as a penalty. The amount of payments shall be
calculated at the Liquidated Damage Rate of the Purchase Price in accordance
with the provisions of Section 2(b) (including its provision of a minimum amount
of $25,000), and the timing of payments shall also be determined in accordance
with Section 2(b). For the purposes of such calculations and determinations of
the amount and timing of payments: (i) the Initial Date
shall mean the first date that the Company delays disclosure of material
non-public information concerning the Company other than during a permitted
Grace Period and (ii) the Computation Date shall mean the date that is 30 days
after the Initial Date and each date that is 30 days after the previous
Computation Date until such period of delay has ceased and the Company has
provided notice to the Investors of the end of such period in accordance with
the provisions of this section above.
3.19 File as part of the Prospectus the plan of distribution in
substantially the form attached hereto as Schedule 3(f).
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Notwithstanding the foregoing, the Company shall have no obligations
under Section 3(l) through (q) unless it is effecting an underwritten offering
pursuant to Section 2(c).
4. Obligations of the Investors. In connection with the registration of
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the Registrable Securities, the Investors shall have the following obligations,
which obligations shall be several and not joint:
4.1 It shall be a condition precedent to the obligations of the
Company to complete the registration pursuant to this Appendix I with respect to
the Registrable Securities of a particular Investor that such Investor shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it and the intended method of disposition of the Registrable
Securities held by it as shall be reasonably required to effect the registration
of such Registrable Securities and shall execute such documents in connection
with such registration as the Company may reasonably request. At least ten
business days prior to the first anticipated filing date of the Registration
Statement, the Company shall notify each Investor and its counsel, whether
in-house or otherwise ("Counsel") of the information the Company requires from
each such Investor (the "Requested Information") if such Investor elects to have
any of its Registrable Securities included in the Registration Statement. If at
least four business days prior to the anticipated filing date the Company has
not received the Requested Information from an Investor (a "Non-Responsive
Investor") or its Counsel, then the Company shall send such Non-Responsive
Investor and its Counsel a reminder of such information request. If at least two
business days prior to the anticipated filing date the Company still has not
received the Requested Information from such Non-Responsive Investor or its
Counsel, then the Company may file the Registration Statement without including
Registrable Securities of such Non-Responsive Investor. However, promptly upon
receipt of the Requested Information, and at the expense of the Non-Responsive
Investor, the Company shall file such amendment(s) to the Registration Statement
as may be necessary to include therein the Registrable Securities of the
Non-Responsive Investor.
4.2 Each Investor by its acceptance of the Registrable Securities
agrees to cooperate in all reasonable respects with the Company in connection
with the preparation and filing of the Registration Statement hereunder, unless
such Investor has notified the Company in writing of its election to exclude all
of its Registrable Securities from the Registration Statement; the Company
shall, on its part, ensure that Item 507 of Regulation S-K of the Securities Act
(regarding information on the selling security holders) be complied with in
connection with its preparation and filing of the Registration Statement
hereunder;
4.3 As promptly as practicable after becoming aware of such event,
notify the Company of the occurrence of any event, as a result of which the
Prospectus included in the 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, in
light of the circumstances under which they were made, not misleading; and
4.4 Each Investor agrees that, upon receipt of any notice from the
Company of the occurrence of any event of the kind described in Section 3(e) or
3(f), it shall immediately discontinue its disposition of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until such Investor's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(e) and, if so directed by the Company, such
Investor shall deliver to the Company (at the expense of the Company) or destroy
(and deliver to the Company a certificate of destruction) all copies in such
Investor's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
5. Expenses of Registration. All expenses, other than underwriting
------------------------
discounts and commissions arising from sales of Registrable Securities, incurred
in connection with registrations, filings or qualifications pursuant to Section
3, but including, without limitation, all registration, listing, and
qualifications fees, printing and engraving fees, accounting fees, and the fees
and disbursements of counsel for the Company, and the reasonable fees, not to
exceed $5,000.00, of one firm of counsel to the holders of a majority in
interest of the Registrable Securities shall be borne by the Company.
6. Indemnification and Contribution.
--------------------------------
6.1 The Company shall indemnify and hold harmless each Investor and
each underwriter, if any, which facilitates the disposition of Registrable
Securities, and each of their respective officers and directors, trustees and
each person who controls such Investor or underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act (each such
person being sometimes hereinafter referred to as an "Indemnified Person") from
and against any losses, claims, damages or liabilities, joint or several, to
which such Indemnified Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement or
an 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
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Prospectus or an omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Company hereby agrees to
reimburse such Indemnified Person for all reasonable legal and other expenses
incurred by them in connection with investigating or defending any such action
or claim as and when such expenses are incurred; provided, however, that the
Company shall not be liable to any such Indemnified Person in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon (i) an untrue statement or alleged untrue statement made in, or an
omission or alleged omission from, such Registration Statement or Prospectus in
reliance upon and in conformity with written information furnished to the
Company by such Indemnified Person expressly for use therein or (ii) in the case
of the occurrence of an event of the type specified in Section 3(e), the use by
the Indemnified Person of an outdated or defective Prospectus after the Company
has provided to such Indemnified Person written notice that such Prospectus is
outdated or defective.
6.2 Indemnification by the Investors and Underwriters. Each Investor
-------------------------------------------------
agrees, as a consequence of the inclusion of any of its Registrable Securities
in a Registration Statement, and each underwriter, if any, which facilitates the
disposition of Registrable Securities shall agree, as a consequence of
facilitating such disposition of Registrable Securities, severally and not
jointly, to (i) indemnify and hold harmless the Company, its directors
(including any person who, with his or her consent, is named in the Registration
Statement as a director nominee of the Company), its officers and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Company or such other persons may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in such Registration Statement or Prospectus 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 (in
light of the circumstances under which they were made, in the case of the
Prospectus), not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such holder or underwriter expressly for use
therein; provided, however, that no Investor or underwriter shall be liable
under this Section 6(b) for any amount in excess of the gross proceeds paid to
such Investor or underwriter in respect of shares sold by it; and (ii) reimburse
the Company for any legal or other expenses incurred by the Company in
connection with investigating or defending any such action or claim as such
expenses are incurred.
6.3 Notice of Claims, etc. Promptly after receipt by a party seeking
indemnification pursuant to this Section 6 (an "Indemnified Party") of written
notice of any investigation, claim, proceeding or other action in respect of
which indemnification is being sought (each, a "Claim"), the Indemnified Party
promptly shall notify the party against whom indemnification pursuant to this
Section 6 is being sought (the "Indemnifying Party") of the commencement
thereof; but the omission to so notify the Indemnifying Party shall not relieve
it from any liability that it otherwise may have to the Indemnified Party,
except to the extent that the Indemnifying Party is materially prejudiced and
forfeits substantive rights and defenses by reason of such failure. In
connection with any Claim as to which both the Indemnifying Party and the
Indemnified Party are parties, the Indemnifying Party shall be entitled to
assume the defense thereof. Notwithstanding the assumption of the defense of any
Claim by the Indemnifying Party, the Indemnified Party shall have the right to
employ separate legal counsel and to participate in the defense of such Claim,
and the Indemnifying Party shall bear the reasonable fees, out-of-pocket costs
and expenses of such separate legal counsel to the Indemnified Party if (and
only if): (i) the Indemnifying Party shall have agreed to pay such fees, costs
and expenses, (ii) the Indemnified Party and the Indemnifying Party shall
reasonably have concluded that representation of the Indemnified Party by the
Indemnifying Party by the same legal counsel would not be appropriate due to
actual or, as reasonably determined by legal counsel to the Indemnified Party,
potentially differing interests between such parties in the conduct of the
defense of such Claim, or if there may be legal defenses available to the
Indemnified Party that are in addition to or disparate from those available to
the Indemnifying Party, or (iii) the Indemnifying Party shall have failed to
employ legal counsel reasonably satisfactory to the Indemnified Party within a
reasonable period of time after notice of the commencement of such Claim. If the
Indemnified Party employs separate legal counsel in circumstances other than as
described in clauses (i), (ii) or (iii) above, the fees, costs and expenses of
such legal counsel shall be borne exclusively by the Indemnified Party. Except
as provided above, the Indemnifying Party shall not, in connection with any
Claim in the same jurisdiction, be liable for the fees and expenses of more than
one firm of counsel for the Indemnified Party (together with appropriate local
counsel). The Indemnified Party shall not, without the prior written consent of
the Indemnifying Party (which consent shall not unreasonably be withheld),
settle or compromise any Claim or consent to the entry of any judgment that does
not include an unconditional release of the Indemnifying Party from all
liabilities with respect to such Claim or judgment.
6.4 Contribution. If the indemnification provided for in this
-------------
Section 6 is unavailable to or insufficient to hold harmless an Indemnified
Person under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to therein, then
each Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and the Indemnified Party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such Indemnifying Party or by such Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 6(d) were determined by
pro rata allocation (even if the Investors or any underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 6(d).
The amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Investors and any underwriters in this
Section 6(d) to contribute shall be several in proportion to the percentage of
Registrable Securities registered or underwritten, as the case may be, by them
and not joint.
6.5 Notwithstanding any other provision of this Section 6, in no
event shall any (i) Investor be required to undertake liability to any person
under this Section 6 for any amounts in excess of the dollar amount of the gross
proceeds to be received by such Investor from the sale of such Investor's
Registrable Securities pursuant to any Registration Statement under which such
Registrable Securities are to be registered under the Securities Act.
6.6 The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 6 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
7. Rule 144. With a view to making available to the Investors the
---------
benefits of Rule 144 under the Securities Act or any other similar rule or
regulation of the Commission that may at any time permit the Investors to sell
securities of the Company to the public without registration ("Rule 144"), the
Company agrees to:
7.1 comply with the provisions of paragraph (c) (1) of Rule 144; and
7.2 file with the Commission in a timely manner all reports and
other documents required to be filed by the Company pursuant to Section 13 or
15(d) under the Exchange Act; and, if at any time it is not required to file
such reports but in the past had been required to or did file such reports,
it will, upon the request of any Investor, make available other information as
required by, and so long as necessary to permit sales of, its Registrable
Securities pursuant to Rule 144.
8. Assignment. The rights to have the Company register Registrable
-----------
Securities pursuant to this Appendix I may be assigned or transferred only with
----------
the prior written consent of the Company, and any such assignment or transfer
without such consent shall be void and of no effect. Notwithstanding the
foregoing, such consent of the Company shall not be required with respect to any
assignment or transfer of Registrable Securities to an Affiliate of Investor,
including for this purpose if Investor is an investment company, any fund or
account advised by Investor's investment adviser or any Affiliate thereof. In
the event of any such permitted assignment or transfer by the Investors to any
permitted transferee of all or any portion of such Registrable Securities such
transfer will be allowed only if: (a) the Investor agrees in writing with the
transferee or assignee to assign such rights, and a copy of such agreement is
furnished to the Company within a reasonable time after such assignment, (b) the
Company is, within a reasonable time after such transfer or assignment,
furnished with written notice of (i) the name and address of such transferee or
assignee and (ii) the securities with respect to which such registration rights
are being transferred or assigned, (c) immediately following such transfer or
assignment, the securities so transferred or assigned to the transferee or
assignee constitute Restricted Securities, (d) at or before the time the Company
received the written notice contemplated by clause (b) of this sentence the
transferee or assignee agrees in writing with the Company to be bound by all of
the provisions contained herein, and (e) the Company is furnished with an
opinion of counsel, which counsel and opinion shall be reasonably satisfactory
to the Company, to the effect that the permitted assignment would be in
compliance with the Securities Act and State Acts.
9. Amendment and Waiver. Any provision of this Appendix I may be amended
---------------------
and the observance thereof may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Company and Investors who hold a majority interest of the
Registrable Securities. Any amendment or waiver effected in accordance with this
Section 9 shall be binding upon each Investor and the Company.
10. Miscellaneous.
-------------
10.1 A person or entity shall be deemed to be a holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Company shall act upon the basis of instructions,
notice or election received from the registered owner of such Registrable
Securities.
10.2 If after the date hereof and prior to the Commission declaring
the Registration Statement to be filed pursuant to Section 2(a) effective under
the Securities Act, the Company grants to any Person any registration rights
with respect to any Company securities which are more favorable to such other
Person than those provided in this Appendix I, then the Company forthwith shall
grant (by means of an amendment to this Appendix I or otherwise) identical
registration rights to all Investors hereunder.
10.3 Except as may be otherwise provided herein, any notice or other
communication or delivery required or permitted hereunder shall be in writing
and shall be delivered personally or sent by certified mail, postage prepaid, or
by a nationally recognized overnight courier service as follows, and shall be
deemed given three days following the date of mailing, in the case of a notice
sent by certified mail, or, in all other cases, when actually received.
if to the Company, to: InteliData Technologies Corporation
00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, Xx.,
Chief Executive Officer
With a copy to: Hunton & Xxxxxxxx
Bank of America Plaza, Suite 4100
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
if to the Investors, to: Each individual or entity identified on
Schedule 10(c) attached hereto
The Company or any Investor may change the foregoing address by notice
given pursuant to this Section 10(c).
10.4 Failure of any party to exercise any right or remedy under this
Appendix I or otherwise, or delay by a party in exercising such right or remedy,
----------
shall not operate as a waiver thereof.
10.5 This Appendix I shall be governed by and interpreted in
accordance with the laws of the State of Delaware.
10.6 The remedies provided in this Appendix I are cumulative and not
----------
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Appendix I is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
10.7 The Company shall not enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the holders of
Registrable Securities in this Appendix I or otherwise conflicts with the
-----------
provisions hereof. Other than as set forth on Schedule 10(g), the Company is not
currently a party to any agreement granting any registration rights with respect
to any of its securities to any person which conflicts with the Company's
obligations hereunder or gives any other party the right to include any
securities in any Registration Statement filed pursuant hereto, except for such
rights and conflicts as have been irrevocably waived. Without limiting the
generality of the foregoing, without the written consent of the holders of a 66
2/3% interest of the Registrable Securities, the Company shall not grant to any
person after the date hereof the right to request it to register any of its
securities under the Securities Act unless the rights so granted are pari pasu
to the prior rights of the holders of Registrable Securities set forth herein,
and are not otherwise in conflict
or inconsistent with the provisions of this Appendix I. The restrictions on the
Company's rights to grant registration rights under this paragraph shall
terminate on the date all Registrable Securities have been registered pursuant
to a Registration Statement that has been declared effective by the Commission.
10.8 This Appendix I and the Subscription Agreements constitute the
----------
entire agreement among the parties hereto with respect to the subject matter
hereof. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein. This Appendix I and the Subscription
Agreements supersede all prior agreements and undertakings among the parties
hereto with respect to the subject matter hereof.
10.9 Subject to the requirements of Section 8 hereof, this Appendix I
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties hereto.
10.10 All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
10.11 The headings in this Appendix I are for convenience of reference
only and shall not limit or otherwise affect the meaning thereof.
