VISION ACQUISITION II, INC. REGISTRATION RIGHTS AGREEMENT
Exhibit
10.1
THIS
REGISTRATION RIGHTS AGREEMENT (this “Agreement”)
is
made as of May
2,
2008 by
and
among VISION ACQUISITION II, INC., a Delaware corporation (the “Company”),
and
each INVESTOR executing an omnibus signature page or a copy hereof
(collectively, the “Investors”
and
each, an “Investor”).
WHEREAS,
the Investors desire to purchase from the Company, and the Company desires
to
issue and sell to the Investors (the “Offering”),
a
minimum of 40 units (the “Units”)
each
Unit consisting of 10,000 shares (the “Shares”) of its common stock, par value
$0.0001 per share (the “Common
Stock”),
upon
the terms set forth in the Company’s Confidential Private Placement Memorandum,
dated March 24, 2008 (the “Memorandum”);
and
WHEREAS,
to induce the Investors to purchase shares of Common Stock, the Company has
agreed to undertake to register, if, as and when required hereunder, the Common
Stock under the terms set forth herein.
NOW,
THEREFORE, the parties hereto hereby covenant and agree as follows:
1. Certain
Definitions.
As used
in this Agreement, the following terms shall have the following respective
meanings:
“Commission
Comments”
means
written comments pertaining solely to Rule 415 which are received by the Company
from the SEC, and a copy of which shall have been provided by the Company to
the
Investor, to a filed Registration Statement which limit the amount of shares
which may be included therein to a number of shares which is less than such
amount sought to be included thereon as filed with the SEC.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended, or any similar federal
statute, and the rules and regulations of the SEC thereunder, all as the same
shall be in effect at the time.
“Public
Sale”
shall
mean any sale of securities to the public pursuant to (i) an offering pursuant
to an effective registration statement under the Securities Act or (ii) the
provisions of Rule 144 (or any similar rule or rules then in effect) under
the
Securities Act.
“Register,”
“registered”
and
“registration”
shall
mean a registration effected by preparing and filing a registration statement
or
statements or similar documents in compliance with the Securities Act and the
declaration or ordering of effectiveness of such registration statement or
document by the SEC.
“Registrable
Securities”
shall
mean (i) all shares of Common Stock represented by the Shares purchased by
the
Investors, (ii) all shares of Common Stock issued as a dividend or other
distribution with respect to, or in exchange for or in replacement of, any
of
the foregoing shares of Common Stock and (iii) any other shares of Common Stock
otherwise acquired by an Investor. As to any particular shares of Common Stock
constituting Registrable Securities, such shares shall cease to be Registrable
Securities when they are eligible for a Public Sale.
“Requisite
Period”
shall
mean, with respect to a firm commitment underwritten public offering, the period
commencing on the effective date of the registration statement and ending on
the
date each underwriter has completed the distribution of all securities purchased
by it, and, with respect to any other registration, the period commencing on
the
effective date of the registration statement and ending on the earlier of (i)
the date on which the sale of all Registrable Securities covered thereby is
completed, and (ii) the date on which all Registrable Securities become publicly
traded and freely tradeable without volume restrictions pursuant to Rule
144.
"Rule
415"
means
Rule 415 promulgated by the SEC pursuant to the Securities Act, as such Rule
may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC having substantially the same effect as such Rule.
“SEC”
shall
mean the Securities and Exchange Commission, or any other federal agency at
the
time administering the Securities Act.
“Securities
Act”
shall
mean the Securities Act of 1933, as amended, and the rules and regulations
of
the SEC thereunder, all as the same shall be in effect at the applicable
time.
“Shares”
shall
mean all of the shares of Common Stock purchased by Investors.
“Stockholders”
shall
mean all Investors.
| 2. |
Automatic
Registration.
|
Within
30
days following the closing of a merger or other business combination
with
an
operating business (a “Merger”)
or any
other event pursuant to which the Company ceases to be a “shell company,” as
defined by Rule 12b-2 under the Exchange Act and a “blank check company,” as
defined by Rule 3a51-1 under the Exchange Act (an “Event”),
we
agree to file with the SEC a registration statement on Form S-1 (or another
available form) under the Securities Act (the “Registration Statement”),
covering the resale of the Shares. We further agree to use our best efforts
to
cause the Registration Statement to be declared effective by the SEC on or
before the earlier of (1) 150 days following an Event or the closing of a
Merger, as applicable, or if the Registration Statement is subject to review
and
comment from the Commission, 180 days following an Event or the closing of
a
Merger, as applicable, or (2) five trading days following the date on which
we
are notified by the SEC that the Registration Statement will not be reviewed
or
is no longer subject to further review.
| 3. |
Piggyback
Registration.
|
(a) If
the
Company at any time (other than pursuant to Sections 2 or 4 hereof) proposes
to
effect a registration of any of its securities pursuant to and in accordance
with the provisions of the Securities Act for sale to the public, whether for
its own account or for the account of other security holders or both (except
with respect to an initial public offering (“IPO”), registration statements on
Forms S-4 and S-8 and any similar successor forms thereto, and/or registrations
on Form S-3 relating solely to dividend or interest reinvestment plans) (a
“Piggyback
Registration”),
each
such time it shall give prompt written notice to such effect to all holders
of
outstanding Registrable Securities at least forty-five (45) days prior to such
filing. Upon the written request of any such holder, received by the Company
within twenty (20) days after the giving of any such notice by the Company,
the
Company will, subject to Section 3(b) hereof, cause all Registrable Securities
as to which registration shall have been so requested to be included in the
registration statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by the holder of such
Registrable Securities on the same terms and conditions as the other shares
of
Common Stock included in such registration statement (the “Piggyback
Registration Statement”).
2
(b) The
Company shall automatically include in such Piggyback Registration Statement
all
Registrable Securities for resale and offer on a continuous basis pursuant
to
Rule 415; provided, however, that (i) if, at any time after giving written
notice of its intention to register any securities and prior to the effective
date of the Registration Statement filed in connection with such registration,
the Company determines for any reason not to proceed with such registration,
the
Company will be relieved of its obligation to register any Registrable
Securities in connection with such registration, (ii) in case of a determination
by the Company to delay registration of its securities, the Company will be
permitted to delay the registration of Registrable Securities for the same
period as the delay in registering such other securities, (iii) each
Investor
is
subject to confidentiality obligations with respect to any information gained
in
this process or any other material non-public information he, she or it obtains,
(iv) each Investor
is
subject to all applicable laws relating to xxxxxxx xxxxxxx or similar
restrictions; and (v) if all of the Registrable Securities of the Investor
cannot
be
so included due to Commission Comments, then the Company may reduce the number
of the Investor’s
Registrable Securities covered by such Registration Statement to the maximum
number which would enable the Company to conduct such offering in accordance
with the provisions of Rule 415. The Investor
shall be
entitled to include all Registrable Securities for resale in the Piggyback
Registration Statement filed by the Company in connection with a public offering
of equity securities by the Company after the date of this Agreement, pursuant
to Rule 415, so long as (1) such shares shall not be included as part of the
underwritten offering of primary shares by the Company, unless the Company
and
underwriter agree to allow the inclusion of such Registrable Securities as
part
of the underwritten offering and, in such event, the Investor elects to include
the Registrable Securities in the underwriting subject to an allocation among
all holders of registration rights in the manner set forth in Section 3(d)
hereof, (2) the underwriter approves the inclusion of such Registrable
Securities in such Initial Registration Statement, subject to customary
underwriter cutbacks applicable to all holders of registration rights, (3)
the
Investor
shall
enter into the underwriters’ form of lockup agreement as and to the extent
requested by the underwriters, which may require that all of the Registrable
Securities held by the Investor
not
be
sold or otherwise transferred without the consent of the underwriters for a
period not to exceed 180 days from the closing of the offering contemplated
by
the Initial Registration Statement, and (4) if all of the Registrable Securities
of the Investor
cannot
be
so included due to Commission Comments, then the Company may reduce the number
of the
Investor’s
Registrable Securities covered by such Registration Statement to the maximum
number which would enable the Company to conduct such offering in accordance
with the provisions of Rule 415. The Company shall cause any Registration
Statement filed under this Section 3(b) to be declared effective under the
Securities Act as promptly as possible after the filing thereof and shall keep
such Registration Statement continuously effective under the Securities Act
during the Effectiveness Period. By 5:00 p.m. (New York City time) on the
business day immediately following the Effective Date of such Registration
Statement, the Company shall file with the Commission in accordance with Rule
424 under the Securities Act the final Prospectus to be used in connection
with
sales pursuant to such Registration Statement (whether or not such filing is
technically required under such Rule).
(c) In
the
event that any Piggyback Registration shall be, in whole or in part, an
underwritten public offering of Common Stock and the managing underwriter(s)
advise the Company in writing that in their opinion the number of Registrable
Securities and/or other securities requested to be included in such offering
exceeds the number of shares which can be sold without materially adversely
affecting the marketability of the offering, then the number of Registrable
Securities to be included in such registration statement shall be reduced,
pro
rata among the requesting holders, based upon the number of Registrable
Securities requested to be registered by them; provided,
that
for all registrations other than an IPO, the shares of Registrable Securities
shall not be reduced until all shares of Common Stock for the account of any
person other than the Company and its assigns, or requesting holders of
Registrable Securities are first reduced. Subject to the foregoing sentence,
the
Company will include in such registration (i) first, the securities the Company
proposes to sell and (ii) second, the Registrable Securities and/or other
securities requested to be included in such registration, pro rata from among
the holders of Registrable Securities, according to the number of Registrable
Securities and/or other securities requested by them to be so
included.
(d) In
the
event that all Registrable Securities cannot be included in a Registration
Statement or a Piggyback Registration Statement under Sections 2 or 3 hereof
due
to Commission Comments, then the Company, unless otherwise prohibited by the
SEC, shall cause the Registrable Securities of the Stockholder to be included
in
such Registration Statement to be reduced pro rata based on the number of
registrable securities held by all holders of registration rights.
3
4. Registration;
Holdback Agreement; Power of Attorney.
(a) Notwithstanding
anything to the contrary contained in this Agreement, the Company shall not
be
required to file a registration statement pursuant to Sections 2 or 4 hereof
(i)
which would become effective within 120 days following the effective date of
a
registration statement (other than a registration statement filed on Form S-4
or
S-8) filed by the Company with the SEC pertaining to any subsequent public
offering for the account of the Company or another holder of securities of
the
Company if the holder(s) of Registrable Securities were afforded the
opportunity, subject to the underwriter’s cut-back, to include all of its
Registrable Securities in such subsequent registration pursuant to Section
3
hereof or (ii) during the period which would violate any restriction or
prohibition reasonably requested by any managing underwriter(s) for a public
offering.
(b)
Each
Stockholder hereby irrevocably appoints Antti William Uusiheimala (“Attorney”)
to act
as his or its true and lawful agent and attorney-in-fact, with full power of
substitution, in his sole discretion to effect any changes to, or elimination
of, the rights of Stockholders herein.
5. Registration
Procedures. If
and
whenever the Company is required by the provisions hereof to effect the
registration of any Registrable Securities under the Securities Act, the Company
will, as expeditiously as possible:
(a) subject
to Sections 2 and 4 hereof, use its best efforts to cause the
Registration
Statement to be declared effective by the SEC on the earlier of (1) 150 days
following an Event or the closing of a Merger, as applicable, or if the
Registration Statement is subject to review and comment from the SEC, 180 days
following an Event or the closing of a Merger, as applicable, or (2) five
trading days following the date on which we are notified by the SEC that the
Registration Statement will not be reviewed or is no longer subject to further
review.
(b) subject
to Sections 3 and 4 hereof, use its best efforts to prepare and file with the
SEC a registration statement with respect to such securities within thirty
(30)
days after delivery of notice under Section 3 or Section 4 hereof, and use
its
best efforts to cause such registration statement to become effective not later
than 120 days from the date of its filing and to remain effective for the
Requisite Period;
(c) prepare
and file with the SEC such amendments and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary
to
keep such registration statement effective for the Requisite Period and comply
with the provisions of the Securities Act with respect to the disposition of
all
Registrable Securities covered by such registration statement in accordance
with
the intended method of disposition set forth in such registration statement
for
such period;
(d) furnish
to each seller of Registrable Securities and to each underwriter 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 intended disposition of the Registrable Securities
covered by such registration statement;
(e) use
its
best efforts (i) to register or qualify the Registrable Securities covered
by
such registration statement under the securities or “blue sky” laws of such
United States jurisdictions as the sellers of Registrable Securities or, in
the
case of an underwritten public offering, the managing underwriter reasonably
shall request, (ii) to prepare and file in those United States jurisdictions
such amendments (including post effective amendments) and supplements, and
take
such other actions, as may be necessary to maintain such registration and
qualification in effect at all times for the period of distribution contemplated
thereby, and (iii) to take such further action as may be necessary or advisable
to enable the disposition of the Registrable Securities in such United States
jurisdictions; provided
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;
4
(f) use
its
best efforts to list the Registrable Securities covered by such registration
statement with any securities exchange on which the Common Stock of the Company
is then listed, or, if the Common Stock is not then listed on a national
securities exchange, use its best efforts to list and facilitate the reporting
of the Common Stock on The New York Stock Exchange, The American Stock Exchange,
The Nasdaq National Market or Capital Market;
(g) immediately
notify each seller of Registrable Securities and each underwriter under such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event
of which the Company has knowledge as a result of which the prospectus contained
in such registration statement, as then in effect, includes any 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 promptly amend or supplement such
registration statement to correct any such untrue statement or omission;
(h) notify
each seller of Registrable Securities of the issuance by the SEC of any stop
order suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose and make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued,
obtain the lifting thereof at the earliest possible time;
(i) permit
a
single firm of counsel designated as selling stockholders’ counsel by the
holders of a majority-in-interest of the Registrable Securities and all other
securities being registered to review the registration statement and all
amendments and supplements thereto for a reasonable period of time prior to
their filing, and the Company shall not file any document in a form to which
such counsel reasonably objects;
(j) if
the
offering is an underwritten offering, at the request of any seller of
Registrable Securities, use its best efforts to furnish to such seller on the
date that Registrable Securities are delivered to the underwriters for sale
pursuant to such registration: (i) a copy of an opinion, dated such date, of
counsel representing the Company for the purposes of such registration,
addressed to the underwriters, stating that such registration statement has
become effective under the Securities Act, and (A) that, to the best knowledge
of such counsel, no stop order suspending the effectiveness thereof has been
issued and no proceedings for that purpose have been instituted or are pending
or contemplated under the Securities Act, (B) that the registration statement,
the related prospectus and each amendment or supplement thereof comply as to
form in all material respects with the requirements of the Securities Act
(except that such counsel need not express any opinion as to financial
statements or other financial or statistical information contained therein)
and
(C) to such other effects as reasonably may be requested by counsel for the
underwriters, and (ii) a copy of a letter dated such date from the independent
public accountants retained by the Company, addressed to the underwriters,
stating that they are independent public accountants within the meaning of
the
Securities Act and that, in the opinion of such accountants, the financial
statements of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request;
(k) make
available for inspection by each seller of Registrable Securities, any
underwriter participating in any distribution pursuant to such 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 such registration
statement, unless such requested information contains material nonpublic
information, in which case no such material nonpublic information shall be
supplied other than pursuant to a mutual confidentiality agreement;
5
(l) provide
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;
(m) take
all
actions reasonably necessary to facilitate the timely preparation and delivery
of certificates representing the Registrable Securities to be sold pursuant
to
the Registration Statement; and
(n) take
all
other reasonable actions necessary to expedite and facilitate the registration
of the Registrable Securities pursuant to the Registration
Statement.
In
connection with each registration hereunder, the sellers of Registrable
Securities will furnish to the Company in writing such information with respect
to themselves and the proposed distribution by them as reasonably shall be
necessary in order to assure compliance with federal and applicable state
securities laws.
6. Expenses.
All
expenses incurred by the Company in complying with Sections 2, 3 and 4 hereof,
including, without limitation, all registration and filing fees, listing 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., reasonable fees of
transfer agents and registrars, costs of insurance, and reasonable fees and
disbursements of counsel for the sellers of Registrable Securities designated
pursuant to Section 5(i) and all other securities being registered, but
excluding any Selling Expenses, are called “Registration
Expenses.”
All
underwriting discounts, selling commissions, fees and expenses of counsel (other
than the one counsel selected to represent the selling stockholders as set
forth
in Section 5(i) hereof) and stock transfer taxes applicable to the sale of
Registrable Securities are called “Selling
Expenses.”
The
Company will pay all Registration Expenses in connection with each Registration
Statement filed hereunder. All Selling Expenses in connection with each
Registration Statement shall be borne by the participating sellers in proportion
to the number of Registrable Securities sold by each or as they may otherwise
agree.
7. Indemnification
and Contribution.
(a) The
Company will indemnify and hold harmless each seller of Registrable Securities,
each underwriter of Registrable Securities and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act,
from and against, and pay or reimburse them for, any losses, claims, damages
or
liabilities, joint or several, to which such seller, 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 any registration statement under which such
Registrable Securities were registered under the Securities Act pursuant hereto,
any preliminary prospectus (unless superseded by a final prospectus) or final
prospectus contained therein, or any amendment or supplement thereof, (ii)
the
omission or alleged omission to state in any such registration statement a
material fact required to be stated therein or necessary to make the statements
therein not misleading or, with respect to any prospectus, necessary to make
the
statements therein, in light of the circumstances under which they were made,
not misleading, or (iii) any violation or alleged violation of the Securities
Act or any state securities or blue sky laws applicable to the Company and
relating to action or inaction required by the Company and will reimburse each
such seller, each such underwriter and each such controlling person for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage or liability (or action
in respect thereof); provided,
that
the Company will not be liable in any such case if and only to the extent that
any such loss, claim, damage or liability (or action in respect thereof) arises
out of or is based upon the Company’s reliance on 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 such registration
statement or prospectus; and provided,
further,
that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage or liability (or action in respect thereof) arises out
of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission in such registration statement or prospectus, which untrue
statement or alleged untrue statement or omission or alleged omission is
completely corrected in an amendment or supplement to the registration statement
or prospectus and such seller or such controlling person thereafter fails to
deliver or cause to be delivered such registration statement or prospectus
as so
amended or supplemented prior to or concurrently with the Registrable
Securities to
the
person asserting such loss, claim, damage or liability (or action in respect
thereof) or expense after the Company has furnished such seller or such
controlling person with the same.
6
(b) Each
seller of such Registrable Securities 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
and
each underwriter and each person who controls any underwriter within the meaning
of the Securities Act from and 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 are based on any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
under which such Registrable Securities were registered under the Securities
Act
pursuant hereto, 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 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
or
liability (or action in respect thereof); provided,
however,
that
such seller will be liable hereunder in any such case only 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
made in reliance upon and in conformity with information pertaining to such
seller furnished in writing to the Company by such seller specifically for
use
in such registration statement or prospectus; and provided,
further,
that
the liability of each seller hereunder shall be limited to the proportion that
the public offering price of the Registrable Securities sold by such seller
under such registration statement bears to the total public offering price
of
all securities sold thereunder, but in any event not to exceed the proceeds
actually received by such seller from the sale of Registrable Securities covered
by such registration statement. Notwithstanding the foregoing, the indemnity
provided in this Section 7(b) shall not apply to amounts paid in settlement
of
any such loss, claim, damage, liability or expense if such settlement is
effected without the consent of such indemnified party, which shall not be
unreasonably withheld.
(c) Promptly
after receipt by an indemnified party hereunder of notice of the commencement
of
any action or claim, 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 7 and shall only relieve it from any
liability which it may have to such indemnified party under this Section 7
if
and to the extent the indemnifying party is materially 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 7 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,
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.
7
(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 holder of Registrable
Securities exercising rights under this Agreement, or any controlling person
of
any such holder, makes a claim for indemnification pursuant to this Section
7
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 7 provides
for
indemnification in such case, or (ii) contribution under the Securities Act
may
be required on the part of any such selling holder, any such controlling person
or the Company in circumstances for which indemnification is provided under
this
Section 7, 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 Registrable Securities 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,
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 Registrable Securities 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.
8. Changes
in Capital Stock.
If, and
as often as, there is any change in the capital stock of the Company 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 capital
stock as so changed.
9. Rule
144 Reporting.
With a
view to making available the benefits of certain rules and regulations of the
SEC which may at any time permit the sale of the Registrable Securities to
the
public without registration, at all times after 90 days after any registration
statement covering a public offering of securities of the Company under the
Securities Act shall have become effective, the Company agrees to use its best
efforts to:
(a) make
and
keep public information available, as those terms are understood and defined
in
Rule 144(c) under the Securities Act;
(b) file
with
the SEC in a timely manner all reports and other documents required of the
Company under the Securities Act and the Exchange Act ; and
(c) furnish
to each holder of Registrable Securities forthwith upon request a written
statement by the Company as to its compliance with the reporting requirements
of
such Rule 144 and of the Securities Act and the Exchange Act, a copy of the
most
recent annual or quarterly report of the Company, and such other reports and
documents so filed by the Company as such holder may reasonably request in
availing itself of any rule or regulation of the SEC allowing such holder to
sell any Registrable Securities without registration.
10. Representations
and Warranties of the Company.
The
Company represents and warrants to the Stockholders as follows:
(a) The
execution, delivery and performance of this Agreement by the Company have been
duly authorized by all requisite corporate action and will not violate any
provision of law, any order of any court or other agency of government, the
Certificate of Incorporation or By-laws of the Company or any provision of
any
indenture, agreement or other instrument to which it or any of its properties
or
assets is bound, conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any such indenture, agreement
or other instrument or result in the creation or imposition of any lien, charge
or encumbrance of any nature whatsoever upon any of the properties or assets
of
the Company or its subsidiaries.
8
(b) This
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable in
accordance with its terms, subject to any applicable bankruptcy, insolvency
or
other laws affecting the rights of creditors generally and subject to general
equitable principles and the availability of specific performance.
11. Assignment
of Registration Rights.
The
rights to cause or have the Company register Registrable Securities pursuant
to
this Agreement may be transferred by the Stockholders in connection with a
transfer of Registrable Securities to transferees or assignees of such
securities; provided,
that
the Company is, within reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned.
The term “Stockholders”
as
used
in this Agreement shall include such transferees or permitted
assignees.
12. Termination.
The
registration rights granted pursuant to this Agreement shall terminate upon
the
expiration of the Requisite Period.
13. Miscellaneous.
(a) Subject
to Section 11 hereof, 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
without limitation transferees of any Registrable Securities), whether so
expressed or not.
(b) All
notices, requests, consents and other communications hereunder shall be in
writing and shall be delivered in person, mailed by certified or registered
mail, return receipt requested, or sent by telecopier or telex, addressed (i)
if
to the Company, to Vision Acquisition II, Inc., c/o Vision Capital Advisors,
LLC, 00 Xxxx 00xx
Xxxxxx,
0xx
Xxxxx,
Xxx Xxxx, XX 00000, facsimile (000) 000-0000, Attention: Antti William
Uusiheimala; (ii) if to Investors, to the address of such party set forth
beneath such party’s signature to the Omnibus Signature Page; (iii) if to Xxxxxx
Associates, LP, the Placement Agent, to 00 Xxxxxxxx, Xxx Xxxx, XX 00000,
facsimile: (000) 000-0000, Attention: Xxxxx Xxxx; and (iv) if to any subsequent
holder of Registrable Securities, to it at such address as may have been
furnished to the Company in writing by such holder; or, in any case, at such
other address or addresses as shall have been furnished in writing to the
Company (in the case of a holder of Registrable Securities) or to the holders
of
Registrable Securities (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 applicable to contracts entered into and to be performed
wholly within said State.
(d) Any
judicial proceeding brought against any of the parties to this Agreement on
any
dispute arising out of this Agreement or any matter related hereto shall be
brought in the state or federal courts of the State of New York and County
of
New York or in the United States District Court for the Southern District of
New
York, and, by execution and delivery of this Agreement, each of the parties
hereto accepts for itself and himself the process in any such action or
proceeding by the mailing of copies of such process to it or him, at its or
his
address as set forth in paragraph 13(b) and irrevocably agrees to be bound
by
any judgment rendered thereby in connection with this Agreement. Each party
hereto irrevocably waives to the fullest extent permitted by law any objection
that it or he may now or hereafter have to the laying of the venue of any
judicial proceeding brought in such courts and any claim that any such judicial
proceeding has been brought in an inconvenient forum. The foregoing consent
to
jurisdiction shall not constitute general consent to service of process in
the
State of New York for any purpose except as provided above and shall not be
deemed to confer rights on any person other than the respective parties to
this
Agreement.
9
(e) The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof in addition to any other remedy to which they are entitled at
law
or in equity.
(f)
This
Agreement may not be amended or modified without the written consent of the
Company, and the holders of at least a majority of the Registrable Securities
then outstanding.
(g) Failure
of any party to exercise any right or remedy under this Agreement or otherwise,
or delay by a party in exercising such right or remedy, shall not operate as
a
waiver thereof. No waiver shall be effective unless and until it is in writing
and signed by the party granting the waiver.
(h) 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.
(i) The
Company shall not grant to any third party, other than the Placement Agent,
any
registration rights more favorable than or inconsistent with any of those
contained herein, so long as any of the registration rights under this Agreement
remain in effect.
(j) 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.
14. Omnibus
Signature Page.
This
Agreement is intended to be read and construed in conjunction with a
Subscription Agreement, of
even
date herewith pertaining to the issuance by the Company of the shares of Common
Stock to investors pursuant to the Memorandum. Accordingly, pursuant to the
terms and conditions of this Agreement and such related agreements it is hereby
agreed that the execution by Investors of the Subscription Agreement, in the
place set forth therein, shall constitute their agreement to be bound by the
terms and conditions hereof and the terms and conditions of the Subscription
Agreement with the same effect as if each of such separate but related agreement
were separately signed.
[Remainder
of this page intentionally left blank]
10
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first written above.
| VISION ACQUISITION II, INC. | ||
| By: | /s/ Antti William Uusiheimala | |
|
Antti
William Uusiheimala, President
|
||
See
Omnibus Signature Page to Subscription Agreement for Investors’
Signatures
11
