AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of September
27, 2000 (this "AGREEMENT"), by and between Educational Video Conferencing,
Inc., a Delaware corporation, with principal executive offices located at 00
Xxxx Xxxxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000 (the "COMPANY"), and the parties that
have executed and delivered an Investor Counterpart Signature Page to this
Agreement (each an "Investor" and collectively, the "Investors").
WHEREAS, as an inducement to Paloma Strategic Fund L.P., the initial
Investor, to execute and deliver a Purchase Agreement, dated September 22, 2000,
the Company agreed to provide certain registration rights with respect to the
Common Stock issued or issuable in lieu of cash dividend payments on the
Preferred Stock, upon conversion of the Preferred Stock and upon exercise of the
Warrants, pursuant to a Registration Rights Agreement dated as of September 22,
2000; and
WHEREAS, as permitted by the Certificate of Designations, the Company has
agreed to issue and sell to two additional Investors, Seneca Capital
International, Ltd. and Seneca Capital, L.P., shares of Preferred Stock and
Warrants, pursuant to a Purchase Agreement dated the date of this Agreement; and
WHEREAS, the Company and the Investors desire to provide for the addition
of other Investors as parties to this Agreement, without requiring an amendment
to this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"CERTIFICATE OF DESIGNATIONS" means the Certificate of Designations of
Series B 7% Convertible Preferred Stock filed in Delaware on September 22, 2000,
as thereafter amended.
"COMMISSION" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
"COMMON STOCK" means the Common Stock, $.0001 par value, of the Company,
as constituted as of the date of this Agreement.
"CONVERSION SHARES" means shares of Common Stock issued upon conversion
of the Preferred Stock.
"DIVIDEND SHARES" means shares of Common Stock issued in payment of
dividends on the Preferred Stock.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"PREFERRED STOCK" means the Series B 7% Convertible Preferred Stock
issued by Company pursuant to the Certificate of Designations.
"PURCHASE AGREEMENT" means a Series B Stock Purchase Agreement between an
Investor and the Company relating to the issuance of Preferred Stock and
Warrants.
"REGISTRATION STATEMENT" means a registration statement of the Company
filed on an appropriate form 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 Restricted Securities pursuant to Rule 415 under the Securities
Act, including (unless the context requires otherwise) the prospectus contained
therein and forming a part thereof, any amendments to such registration
statement and supplements to such prospectus, and all exhibits to and other
material incorporated by reference in such registration statement and
prospectus.
"RESTRICTED STOCK" means the Conversion Shares, Dividend Shares, Warrant
Shares, and any shares of capital stock issued or issuable with respect to such
shares as a result of any stock split, stock dividend, recapitalization exchange
or similar event, until they are (a) resold under and in accordance with the
Securities Act pursuant to the Registration Statement (b) saleable without
restriction pursuant to Rule 144(k) under the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"SELLING EXPENSES" means the expenses so described in Section 3.
"WARRANTS" means the Common Stock Purchase Warrants issued to the
Investors in connection with the issuance to them of Preferred Stock pursuant to
Purchase Agreements.
"WARRANT SHARES" means shares of Common Stock issued upon exercise of
Warrants.
2. REGISTRATION PROCEDURES.
(a) The Company shall prepare and, on or prior to 30 days after the
initial issuance date of the Preferred Stock, file with the Commission a
Registration Statement on Form S-3 (or, if such form is unavailable for such a
registration, on such other form as is available for such a registration,
subject to the consent of each Investor, which consent will not be unreasonably
withheld), covering the resale of all of the Restricted Stock, which
Registration Statement shall state that, in accordance with Rule 416 under the
Securities Act, such Registration Statement also covers such indeterminate
number of additional shares of Common Stock as may become issuable upon exercise
of the Warrants to prevent dilution resulting from
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stock splits, stock dividends or similar transactions. The Registration
Statement shall initially register for resale that number of shares of Common
Stock equal to the number of shares of Restricted Stock issuable as of the date
immediately preceding the date the Registration Statement is initially filed
with the Commission as if such date of registration was a date on which the
Preferred Stock was converted and the Warrants were exercised, subject to
adjustment as provided therein. Such registered shares of Common Stock shall be
allocated among the Investors pro rata based on the total number of shares of
Restricted Stock issued or issuable as of each date that a Registration
Statement, as amended, relating to the resale of the Restricted Stock is
declared effective by the Commission.
(b) In connection with the Registration Statement, the Company shall:
(i) use its best efforts to cause the Registration Statement to be
declared effective within 90 days after the initial issuance date of the
Preferred Stock and to remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(ii) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in connection
therewith as may be necessary to keep the Registration Statement continuously
effective, pursuant to Rule 415, for the period specified in paragraph 2(c) and
comply with the provisions of the Securities Act with respect to the disposition
of all Restricted Stock covered by the Registration Statement in accordance with
the sellers' intended method of disposition set forth in the Registration
Statement for such period; PROVIDED, HOWEVER, notwithstanding the foregoing
provisions of this Section 2(b)(ii), the Company may suspend the use of the
Registration Statement for a period not to exceed 45 days (whether or not
consecutive) in any 12-month period if the Board of Directors of the Company
determines in good faith that because of valid business reasons (that would be
required to be disclosed in an amendment to the prospectus), including pending
mergers or other business combination transactions, the planned acquisition or
divestiture of assets, pending material corporate developments and similar
events, it is in the best interests of the Company to suspend such use, and
prior to or contemporaneously with suspending such use the Company provides the
Investors with written notice of such suspension, which notice need not specify
the nature of the event giving rise to such suspension; at the end of any such
suspension period, the Company shall provide the Investors with written notice
of the termination of such suspension;
(iii) permit each Investor and a single firm of counsel, initially
Xxxxxxx Xxxx & Xxxxx LLP or such other counsel as thereafter designated as
selling stockholders' counsel by the Investors who hold a majority of the
Restricted Stock being sold, to review and comment upon the Registration
Statement(s) and all amendments and supplements thereto at least three days
prior to their filing with the Commission, and not file any document in a form
to which such counsel reasonably objects; the Company shall not submit a request
for acceleration of the effectiveness of a Registration Statement(s) or any
amendment or supplement thereto without the prior approval of such counsel,
which consent shall not be unreasonably withheld; the Company shall not be
required to make any payments under Section 2(g) if the delay in declaring the
Registration Statement effective is due to such counsel's unreasonable objection
to the form of any such document or its withholding approval of the Company's
acceleration request;
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(iv) furnish to each seller of Restricted Stock and to each
underwriter (to the extent that a majority of the holders of Restricted Stock
elect to use an underwriter or to the extent of an underwritten public offering
as contemplated by Section 2A below) such number of copies of the Registration
Statement and the prospectus included therein (including each preliminary
prospectus) as such persons reasonably may request in order to facilitate the
public sale or other disposition of the Restricted Stock covered by the
Registration Statement;
(v) use its best efforts to register or qualify the Restricted Stock
covered by the Registration Statement under the securities or "blue sky" laws of
such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter, reasonably shall
request; PROVIDED, HOWEVER, that the Company shall not for any such purpose be
required to qualify generally to transact business as a foreign corporation in
any jurisdiction where it is not so qualified or to consent to general service
of process in any such jurisdiction;
(vi) immediately notify each seller of the Restricted Stock and each
underwriter (to the extent that a majority of the holders of Restricted Stock
elect to use an underwriter or to the extent of an underwritten public offering
as contemplated by Section 2A below) under the Registration Statement, at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company has knowledge
and as a result of which the prospectus contained 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 not misleading in light of the circumstances then existing;
and
(vii) make available for inspection by each seller of Restricted
Stock, any underwriter (to the extent that a majority of the holders of
Restricted Stock elect to use an underwriter or to the extent of an underwritten
public offering as contemplated by Section 2A below) participating in any
distribution pursuant to the Registration Statement, and any attorney,
accountant or other agent retained by such seller or underwriter, all financial
and other records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with the Registration Statement.
(c) For purposes of subsections 2(b)(i) and (ii), the period of
distribution of Restricted Stock in a firm commitment underwritten public
offering shall be deemed to extend until each underwriter has completed the
distribution of all securities purchased by it, and the period of distribution
of Restricted Stock in any other registration shall be deemed to extend until
pursuant to Rule 415 at all times until the earlier of (i) the date as of which
the Investors may sell all of the Restricted Stock without restriction pursuant
to Rule 144(k) promulgated under the Securities Act (or successor thereto), (ii)
the date on which (x) the Investors shall have sold all the Restricted Stock and
(y) none of the Warrants is outstanding, or (iii) the date which is two years
after the Warrants have been exercised in full.
(d) Each seller of Restricted Stock agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
subsection 2(b)(ii), such seller will immediately discontinue disposition of
Restricted Securities pursuant to the
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prospectus included in the Registration Statement until such seller's receipt of
the copies of the supplemented or amended prospectus contemplated by subsection
2(b)(ii), and, if so directed by the Company, such seller will deliver to the
Company all copies, other than permanent file copies then in such seller's
possession, of the most recent prospectus covering such Restricted Securities at
the time of receipt of such notice. If the Company shall give such notice, the
Company shall extend the period during which the Registration Statement shall be
maintained effective by the number of days during the period from and including
the date of the giving of notice pursuant to subsection 2(b)(ii) to the date
when the Company shall make available to such seller a prospectus supplemented
or amended to conform with the requirements of subsection 2(b)(ii).
(e) In connection with each registration hereunder, the sellers of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them, as reasonably shall
be necessary and reasonably requested by the Company's counsel in writing, in
order to assure compliance with federal and applicable state securities laws.
(f) In the event the public offering of the Restricted Securities is
underwritten, the Company and each seller agree to enter into a written
agreement with the managing underwriter selected by the Company and approved by
the holders of a majority of the Restricted Stock (assuming conversion of the
outstanding Preferred Stock and exercise of the outstanding Warrants as of the
date the Company requests such consent), which approval shall not be
unreasonably withheld or delayed, in such form and containing such provisions as
are customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
(g) The Company understands that a breach of the Company's obligations
under Sections 2(a) and 2(b)(i) could result in economic loss to the Investors.
As compensation to the Investors for such loss (and not as a penalty), the
Company agrees to pay to the Investors interest at the rate of 18% per annum on
the Stated Value of the Preferred Stock (the "LOSS AMOUNT"), for the period of
time that the Company is late in filing the Registration Statement and in
causing the Registration Statement to be declared effective as a result of the
Company's breach of Sections 2(a) and/or 2(b)(i). In addition, the Company shall
pay the Loss Amount to the Investors for the period of time that the
Registration Statement has not been declared effective commencing on the 150th
day after the filing of such Registration Statement through the day that the
Registration Statement is declared effective. The Company shall pay to the
Investors the compensation described upon demand by and in accordance with
instructions given to the Company by the Investors. Nothing herein shall limit
the Investors' right to pursue actual damages and/or its remedies at law and in
equity for the Company's breach of Sections 2(a) and/or 2(b)(i).
2A. COMPANY REGISTRATION.
(a) In addition to the registration rights set forth in Section 2 of
this Agreement, if the Company proposes to register (including for this purpose
a registration effected by the Company for stockholders other than the
Investors) any of its capital stock or other securities convertible into or
exchangeable for Common Stock under the Securities Act in connection with
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an underwritten public offering of such securities solely for cash (other than
registration statements on Form S-4 or S-8 or a registration statement relating
to the sale of securities to participants in a Company stock option plan or a
registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered),
the Company shall, at such time, promptly give each seller of Restricted Stock
written notice of such registration. Upon the written request of each seller of
Restricted Stock given within 20 days after the giving of such notice by the
Company in accordance with this Section 2A, the Company shall, subject to the
provisions of Section 2A(c), cause to be registered under the Securities Act all
of the Restricted Stock that each such seller of Restricted Stock has requested
to be registered.
(b) The right of any seller of Restricted Stock to registration
pursuant to this Section 2A shall be conditioned upon such seller's
participation in such underwriting and the inclusion of such seller's Restricted
Stock in the underwriting to the extent provided herein. All sellers of
Restricted Stock proposing to distribute their securities through such
underwriting shall (together with the Company and the other sellers of
securities of the Company with registration rights to participate therein
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company.
(c) Notwithstanding any other provisions to this Section 2A, if the
representative of the underwriters advises the Company in writing that marketing
factors make a limitation on the number of shares to be underwritten
appropriate, the representative may (subject to the limitations set forth below)
exclude all Restricted Stock from, or limit the number of Restricted Stock to be
included in, the registration and underwriting. The Company shall so advise all
sellers of securities requesting registration, and the number of shares of
securities that are entitled to be included in the registration and underwriting
shall be allocated first to the Company for securities being sold for its own
account, second, to the sellers of Restricted Stock and third, for stockholders
other than the Investors. If any Investor does not agree to the terms of any
such underwriting, it shall be excluded therefrom by written notice from the
Company or the underwriter. Any Restricted Stock or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such registration
without prejudice to include such withdrawn shares in future underwritten
registrations pursuant to this Section 2A.
3. EXPENSES. All expenses incurred by the Company in complying with
Section 2, including, without limitation, all registration and filing fees,
printing expenses, fees and disbursements of counsel and independent public
accountants for the Company, fees and expenses (including counsel fees) incurred
in connection with complying with state securities or "blue sky" laws, fees of
the National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars, and costs of insurance and reasonable fees and
disbursements of one counsel for the sellers of Restricted Stock, but excluding
any Selling Expenses and fees and disbursements of any other counsel for, or any
accountant or agent of, a seller of Restricted Stock, are called "REGISTRATION
EXPENSES." All underwriting discounts and selling commissions applicable to the
sale of Restricted Stock are called "SELLING EXPENSES."
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The Company will pay all Registration Expenses and the sellers of
Restricted Stock will pay all Selling Expenses. In addition, the Company shall
pay all of the sellers of Restricted Stock reasonable costs (including legal
fees) incurred in connection with the successful enforcement of such seller's
rights hereunder.
4. INDEMNIFICATION AND CONTRIBUTION.
(a) In connection with the registration and sale of the Restricted
Stock pursuant to the Registration Statement, to the fullest extent permitted by
law, the Company will indemnify and hold harmless each seller of such Restricted
Stock thereunder together with such seller's officers, directors, partners,
employees and agents, each underwriter of such Restricted Stock thereunder and
each other person, if any, who controls such seller or underwriter within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such seller and such seller's officers,
directors, partners, employees and agents, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or (ii) arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will promptly reimburse each
such seller, each such underwriter and each such controlling person (iii) any
violation or alleged violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any other law, including, without limitation,
any state securities law, or any rule or regulation thereunder relating to the
offer or sale of the Restricted Stock pursuant to a Registration Statement; (but
not such seller's failure to comply with the prospectus delivery requirements or
other rules and regulations under the Exchange Act relating to such seller's
conduct in offering and selling Restricted Stock) for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, PROVIDED, HOWEVER,
that the Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission so
made in conformity with information furnished by any such seller, any such
underwriter or any such controlling person in writing specifically for use in
the Registration Statement or such prospectus. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified person and shall survive the transfer of Restricted Stock by
sellers pursuant to Section 7(a) of this Agreement.
(b) In connection with the registration and sale of Restricted Stock
pursuant to the Registration Statement, each seller of such Restricted Stock
thereunder, severally and not jointly, will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of the
Securities Act, each officer of the Company who signs the Registration
Statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or
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are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereof, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will promptly reimburse the Company and
each such officer, director, underwriter and controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, PROVIDED, HOWEVER,
that such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished in writing to the Company by such seller
specifically for use in the Registration Statement or such prospectus, and
PROVIDED, FURTHER, HOWEVER, that the liability of each seller hereunder shall be
limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of the shares
sold by such seller under the Registration Statement bears to the total public
offering price of all securities sold thereunder, but not in any event to exceed
the net proceeds received by such seller from the sale of Restricted Stock
covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 4 and shall only relieve it
from any liability which it may have to such indemnified party under this
Section 4 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 4 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, PROVIDED,
HOWEVER, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any seller of
Restricted Stock pursuant to the Registration Statement, or any controlling
person of any such holder, makes a claim for
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indemnification pursuant to this Section 4 but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 4 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of any such
selling holder or any such controlling person in circumstances for which
indemnification is provided under this Section 4; then, and in each such case,
the Company and such holder will contribute to the aggregate losses, claims,
damages or liabilities to which they may be subject (after contribution from
others) in such proportion so that such holder is responsible for the portion
represented by the percentage that the public offering price of its Restricted
Stock offered by the registration statement bears to the public offering price
of all securities offered by such registration statement, and the Company is
responsible for the remaining portion; PROVIDED, HOWEVER, that, in any such
case, (A) no such holder will be required to contribute any amount in excess of
the public offering price of all such Restricted Stock offered by it pursuant to
such registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
5. CHANGES IN COMMON STOCK OR PREFERRED STOCK. If, and as often as, there
is any change in the Common Stock or the Preferred Stock by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock or
the Preferred Stock as so changed.
6. RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Stock to the public without registration, the Company
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) file with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) promptly upon the request of a holder of Restricted Stock who has
sold shares in compliance with Rule 144, furnish, at the Company's expense, an
opinion of counsel stating that such sale is in compliance with Rule 144 and
directing the Company's transfer agent (i) to remove any applicable legends and
(ii) to transfer the shares.
(d) furnish to each Investor so long as such Investor owns Restricted
Stock, promptly upon request, (i) a written statement by the Company that it has
complied with the reporting requirements of Rule 144, the Securities Act and the
Exchange Act, (ii) a copy of the most recent annual or quarterly report of the
Company and such other reports and documents so filed by the Company and (iii)
such other information as may be reasonably requested to permit such Investor to
sell such securities pursuant to Rule 144 without registration.
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7. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including transferees,
in accordance with applicable federal and state securities laws, of any
Preferred Stock or Restricted Stock), whether so expressed or not, PROVIDED,
HOWEVER, that registration rights conferred herein on the holders of Preferred
Stock or Restricted Stock shall only inure to the benefit of a transferee of
Preferred Stock or Restricted Stock if (i) there is transferred to such
transferee at least 10% of the total shares of Restricted Stock, issuable upon
conversion of the Preferred Stock and exercise of the Warrants, as of the date
of this Agreement, to the direct or indirect transferor of such transferee or
(ii) such transferee is a partner, stockholder or affiliate of a party hereto.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be deemed sufficient when delivered in person
(including by Federal Express or similar service), receipt confirmed, or sent by
telecopier, receipt confirmed, addressed as follows:
if to the Company, at the address or telecopier number of such party
set forth in a Purchase Agreement; and
if to an Investor at the address or telecopier number of the Investor
set forth in the Investor's Counterpart Signature Page;
if to any subsequent holder of Preferred Stock or Restricted Stock, to
it at such address or telecopier as may have been furnished to the Company in
writing by such holder; or, in any case, at such other address or telecopier
number as shall have been furnished in writing to the Company (in the case of a
holder of Preferred Stock or Restricted Stock) or to the holders of Preferred
Stock or Restricted Stock (in the case of the Company) in accordance with the
provisions of this paragraph.
(c) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without regard to principles of conflict
of laws.
(d) This Agreement and the applicable Purchase Agreement constitute
the entire agreement of the parties with respect to its subject matter and
supersedes all prior agreements, understandings, negotiations and discussions
relating to such subject matter.
(e) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Company and the holders
of a majority of the Restricted Stock, assuming conversion of all of the
outstanding Preferred Stock and exercise of the outstanding Warrants as of the
date such consent is given.
(f) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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(g) If any provision of this Agreement shall be held to be illegal,
invalid or unenforceable, such illegality, invalidity or unenforceability shall
attach only to such provision and shall not in any manner affect or render
illegal, invalid or unenforceable any other provision of this Agreement, and
this Agreement shall be carried out as if any such illegal, invalid or
unenforceable provision were not contained herein.
(h) From and after the date of this Agreement, the Company shall not,
without the prior written consent of a majority of the Investors, enter into any
agreement with any holder or prospective holder of any securities of the Company
giving such holder or prospective holder any registration rights with terms more
favorable than or inconsistent with the registration rights granted to the
Investors hereunder.
(i) Additional Investors shall become parties to this Agreement by
completing, executing and delivering to the Company and each other Investor an
Investor Counterpart Signature Page, provided such party has acquired the
Additional Securities (as defined in Section 18(b) of the Certificate of
Designations) specified on such Counterpart Signature Page in accordance with
the provisions of Section 18(b) of the Certificate of Designations. The consent
of the other Investors shall not be required to the addition of any Investor as
a party to this Agreement in compliance with this Section 7(i), provided that no
additional amendments are made to this Agreement at the time such party is added
to this Agreement as an Investor.
[SIGNATURE PAGES FOLLOW]
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The parties have executed this Amended and Restated Registration Rights
Agreement as of the date first written above.
EDUCATIONAL VIDEO CONFERENCING, INC.
By: /s/Xx. Xxxx X. Xxxxxxxx
------------------------------------------------
Name: Xx. Xxxx X. Xxxxxxxx
Title: Chairman and Chief Executive Officer
[INVESTOR COUNTERPART SIGNATURE PAGES FOLLOW]
INVESTOR
COUNTERPART SIGNATURE PAGE
The undersigned hereby executes the Amended and Restated Registration
Rights Agreement, dated as of September 27, 2000, relating to the Series B 7%
Convertible Preferred Stock and Warrants issued by Educational Video
Conferencing, Inc.
Dated: SEPTEMBER 27, 2000 PALOMA STRATEGIC FUND L.P.
------------------
Investor address and facsimile number By: Amaranth Advisors L.L.C
for notices: Attorney-in-Fact
Paloma Strategic Fund L.P.
c/o MQ Services Ltd. By: /s/Xxxxxxx X. Xxxxxx
Bermuda Commercial Bank Building ------------------------------------
00 Xxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Xxxxxxxx HM12 Bermuda Title: Vice President
Phone: (000) 000-0000
Fax: (000) 000-0000 Stated Value of shares of Preferred Stock
With a copy to: Owned: $10,000,000
------------------------------
Xxxxxxx X. Xxxxxxxxxx, Esq. No. of Warrant Shares underlying
Xxxxxxx, Xxxx & Xxxxx XXX
000 0xx Xxxxxx Xxxxxxxx: 555,556
Xxx Xxxx, XX 00000 ------------------------------
Phone:(000) 000-0000
Fax: (000) 000-0000
INVESTOR
COUNTERPART SIGNATURE PAGE
The undersigned hereby executes the Amended and Restated Registration
Rights Agreement, dated as of September 27, 2000, relating to the Series B 7%
Convertible Preferred Stock and Warrants issued by Educational Video
Conferencing, Inc.
Dated: SEPTEMBER 27, 2000 SENECA CAPITAL INTERNATIONAL, LTD.
------------------
Investor address and facsimile By: /s/Xxxxx Xxxx
number for notices: -------------------------------
Name: Xxxxx Xxxx
Title: Partner
Seneca Capital International, Ltd.
000 Xxxxxxx Xxxxxx
00xx Xxxxx Stated Value of shares of Preferred Stock
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Phone: (000) 000-0000 Owned: $1,308,000
Fax: (000) 000-0000 ----------------------------------
No. of Warrant Shares underlying
With a copy to: Warrants: 72,667
--------------------------------
Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxxx, Xxxx & Xxxxx LLP
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
INVESTOR
COUNTERPART SIGNATURE PAGE
The undersigned hereby executes the Amended and Restated Registration
Rights Agreement, dated as of September 27, 2000, relating to the Series B 7%
Convertible Preferred Stock and Warrants issued by Educational Video
Conferencing, Inc.
Dated: SEPTEMBER 27, 2000 SENECA CAPITAL, L.P.
------------------
Investor address and facsimile By: /s/Xxxxx Xxxx
number for notices: -------------------------------
Name: Xxxxx Xxxx
Title: Partner
Seneca Capital, L.P.
000 Xxxxxxx Xxxxxx
00xx Xxxxx Stated Value of shares of Preferred Stock
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx Owned: $692,000
Phone: (000) 000-0000 ---------------------------------
Fax: (000) 000-0000
No. of Warrant Shares underlying
With a copy to: Warrants: 38,444
--------------------------------
Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxxx, Xxxx & Xxxxx LLP
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
INVESTOR
COUNTERPART SIGNATURE PAGE
The undersigned hereby executes the Amended and Restated Registration
Rights Agreement, dated as of September 27, 2000, relating to the Series B 7%
Convertible Preferred Stock and Warrants issued by Educational Video
Conferencing, Inc.
Date: SEPTEMBER 29, 2000 MERCED PARTNERS LIMITED PARTNERSHIP
------------------ BY: GLOBAL CAPITAL MANAGEMENT, INC.,
GENERAL PARTNER
Investor address and facsimile
number for notices: By:/s/Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Merced Partners Limited Partnership Title: Chief Executive Officer
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx Stated Value of shares of Preferred Stock
Phone: (000) 000-0000
Fax: (000) 000-0000 Owned: $500,000
--------------------------------
With a copy to: No. of Warrant Shares underlying
Xxxx X. Xxxxx, Esq. Warrants: 27,778
-------------------------------
Xxxxxx & Xxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
INVESTOR
COUNTERPART SIGNATURE PAGE
The undersigned hereby executes the Amended and Restated Registration
Rights Agreement, dated as of September 27, 2000, relating to the Series B 7%
Convertible Preferred Stock and Warrants issued by Educational Video
Conferencing, Inc.
Date: SEPTEMBER 29, 0000 XXXXXXXXX XXXXXXXXXXXXX, LTD.
------------------
BY: HUNTER CAPITAL MANAGEMENT, L.L.C.,
INVESTMENT MANAGER
Investor address and facsimile
number for notices: BY: GLOBAL CAPITAL MANAGEMENT, INC.,
MEMBER
Lakeshore International, Ltd.
c/o Hunter Capital Management, L.L.C. By: /s/Xxxxxxx X. Xxxx
000 Xxxxxxx Xxxxxxx, Xxxxx 000 -------------------------------------
Xxxxxxxxxx, XX 00000 Name: Xxxxxxx X. Xxxx
Attention: Xxxxx Xxxxx Title: Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
Stated Value of shares of Preferred Stock
With a copy to: Owned: $500,000
-------------------------------
Xxxx X. Xxxxx, Esq. No. of Warrant Shares underlying
Xxxxxx & Xxxxxx
One Battery Park Plaza Warrants: 27,778
Xxx Xxxx, XX 00000 -------------------------------
Phone: (000) 000-0000
Fax: (000) 000-0000
