EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is made as of this
30th day of August, 1996, by and among View Tech, Inc., a California corporation
(the "Company"), and Andrew W. Jamison (the "Holder").
RECITALS
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WHEREAS, the Company and the Holder are parties to an Agreement and Plan of
Merger by and among the Company, the Holder, and Groupnet, Inc., a Massachusetts
corporation ("Groupnet") (the "Merger Agreement"), as of even date herewith,
whereby the Company issued 150,000 shares of the Company's Common Stock to the
Holder;
WHEREAS, the Merger Agreement sets forth certain provisions with respect to
certain rights of the Holder to include shares of the Company's Common Stock
held by him in a registered public offering of the Company's capital stock on
Form S-3 (as defined in Section 1.1(d)); and
NOW, THEREFORE, the parties hereby agree as follows:
I. REGISTRATION RIGHTS
Section 1.1 Definitions. For purposes of this Section 1:
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(a) The term "Act" means the Securities Act of 1933, as
amended.
(b) The term "Affiliate" means a person or entity that directly,
or indirectly through one or more intermediaries, controls or is controlled by,
or is under common control with, a specified person or entity.
(c) The term "Common Stock" means the Company's Common Stock
authorized for issuance under its Articles of Incorporation.
(d) The term "Form S-3" means such form under the Act as in
effect on the date hereof or any registration form under the Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
(e) The term "Holder" means any person owning or having the right
to acquire Registrable Securities or any assignee thereof.
(f) The term "1934 Act" shall mean the Securities Exchange Act of
1934, as amended.
(g) The terms "register," "registered," and "registration" refer
to a registration effected by preparing and filing a registration statement or
similar document in compliance with the Act, and the declaration or ordering of
effectiveness of such registration statement or document.
(h) The term "Registrable Securities" means (i) shares of Common
Stock issued to the Holder pursuant to the Merger Agreement and (ii) any Common
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of the shares
referenced in (i) above, excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which such person's rights under
this Section 1 are not assigned.
(i) The term "SEC" shall mean the Securities and Exchange
Commission.
Section 1.2 Registration on Form S-3. The Company shall use its best
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efforts to file on or prior to October 31, 1996 a registration statement on Form
S-3 to register all of the Registrable Securities held by the Holder and to
cause such Form S-3 to become effective as soon as reasonably practicable
thereafter.
Section 1.3 Obligations of the Company. Whenever effecting the
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registration of any Registrable Securities under this Section 1, the Company
shall, as expeditiously as reasonably possible:
(a) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by
them.
(b) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by the Company are then listed.
(c) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(d) The Company shall use its best efforts to keep the
registration statement continuously effective and usable for a period of 24
months after its effectiveness or if shorter when (i) all the Registrable
Securities have been sold pursuant to the registration statement, or (ii) the
first date after the second anniversary of the effective date hereof on which
the largest number of Registrable Securities then held by any Holder constitutes
less than one (1%) percent of the then outstanding shares of Common Stock of the
Company.
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(e) The Company shall use its best efforts to qualify all the
Registrable Securities under any applicable state securities laws.
(f) From time to time, the Company will amend or supplement the
registration statement and any prospectus contained therein to the extent
necessary to comply with the Securities Act and any applicable state securities
statutes or regulations. The Company will also provide the Holder with as many
copies of the prospectus contained in the appropriate registration statement and
such other documents as such Holder may reasonably request (including without
limitation a copy of all documents filed with and correspondence from or to the
SEC in connection with the appropriate registration statement).
Section 1.4 Furnish Information. It shall be a condition precedent to
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the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding himself, the
Registrable Securities held by him, and the intended method of disposition of
such securities as the Company may reasonably request in writing and as shall be
required to effect the registration of such Holder's Registrable Securities.
Section 1.5 Expenses of Company Registration. The Company shall bear and
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pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to registrations pursuant
to Section 1.2 for each Holder, including (without limitation) all registration,
filing, and qualification fees, "Blue Sky" fees and expenses, printers and
accounting fees relating or apportionable thereto, but excluding any
underwriting discounts and commissions relating to Registrable Securities, and
any attorneys' fees other than the fees for the Company's counsel.
Section 1.6 Delay of Registration. No Holder shall have any right to
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obtain or seek an injunction restraining or otherwise delaying any such
registration statement filed with and declared effective by the SEC as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
Section 1.7 Indemnification. In the event any Registrable Securities are
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included in a registration statement under this Section 1:
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(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, any underwriter (as defined in the Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
or the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Company of the Act, the 1934 Act, any state securities law or
any rule or regulation promulgated under the Act, or the 1934 Act or any state
securities law; and the Company will pay to each such Holder, underwriter or
controlling person, 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 indemnity agreement contained
in this Section 1.7(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Holder, or its underwriter or controlling person. Notwithstanding the
foregoing, the Company shall not be required to indemnify any Holder pursuant to
this Section 1.7(a) against any loss, claim, damage, liability, or action
arising from any untrue or misleading statement or omission contained in any
preliminary prospectus, if such deficiency is corrected in the final prospectus
and the Company made timely delivery of the final prospectus to all purchasers
of shares of the Company's capital stock pursuant to the public offering of such
shares.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Act, any underwriter, any other
Holder selling securities in such registration statement and any controlling
person of any such underwriter or other Holder, against any losses, claims,
damages, or liabilities (joint or several) to which any of the foregoing persons
may become subject, under the Act, or the 1934 Act or other federal or state
law, insofar as such losses, claims, damages, or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance upon
and in conformity with written information furnished by such Holder expressly
for use in connection with such registration; and each such Holder will pay, any
legal or other expenses reasonably incurred by any person intended to be
indemnified pursuant to this Section 1.7(b), in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this Section 1.7(b) shall not apply to
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amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder (which consent
shall not be unreasonably withheld); provided, that, in no event shall any
indemnity under this Section 1.7(b) exceed the gross proceeds from the offering
received by such Holder. Notwithstanding the foregoing, no Holder shall be
required to indemnify the Company, its directors, its officers or any
controlling person pursuant to this Section 1.7(b) against any loss, claim,
damage, or liability arising from any untrue or misleading statement or omission
contained in any preliminary prospectus if such deficiency is corrected in the
final prospectus and the Company made timely delivery of the final prospectus to
all purchasers of shares of the Company's capital stock pursuant to the public
offering of such shares.
(c) Promptly after receipt by an indemnified party under this
Section 1.7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.7, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party if the
indemnified party, acting reasonably, determines that representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 1.7, but the omission
so to deliver written notice to the indemnifying party will not relieve it of
any liability that it may have to any indemnified party otherwise than under
this Section 1.7.
(d) If the indemnification provided for in this Section 1.7 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
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(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement, which shall be customary for registration of the type then proposed,
shall control.
(f) The obligations of the Company and Holders under this Section
1.7 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
Section 1.8 Compliance with Exchange Act. The Company shall timely file
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with the SEC such information as the SEC may require under Section 13 or 15(d)
of the Exchange Act; and in such event, the Company shall use its best efforts
to take all action pursuant to Rule 144(c) as may be required as a condition to
the availability of Rule 144 under the Securities Act (or any successor
exemptive rule hereinafter in effect) with respect to the Common Stock of the
Company.
Section 1.9 Termination of Registration Rights. No Holder shall be
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entitled to exercise any right provided for in this Section 1 beyond two (2)
years following the date of this Agreement.
II. COVENANTS OF HOLDERS
Section 2.1 Covenants of Holders. The Holders, and their duly appointed
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representatives, shall obtain and provide to the Company, promptly upon request,
any and all information reasonably required by the Company to comply with state
and federal securities laws and other requirements, including but not limited
to, beneficial ownership information and all shall cooperate with any state or
federal licensing agency in any investigation by such agencies.
III. MISCELLANEOUS
Section 3.1 Successors and Assigns. Except as otherwise provided herein,
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the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferee of any shares of Registrable Securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
Section 3.2 Governing Law. This Agreement shall be governed by and
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construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
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Section 3.3 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 3.4 Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
Section 3.5 Notices. All notices, requests, demands and other
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communications which a party is required to or may desire to give any other
party in connection with this Agreement shall be in writing, and shall be
personally delivered, delivered by facsimile transmission, or delivered by
United States registered or certified mail, postage prepaid with return receipt
requested, addressed as follows:
If to the Company: View Tech, Inc.
950 Flynn Road
Camarillo, CA 93012
Attention: Mr. Robert G. Hatfield
Fax No. 805/482-3825
With a copy to: Howard J. Kern, Esq.
4057 Rhodes Avenue
Studio City, CA 91064
Fax No. 818/980-6004
With a copy to: V. Joseph Stubbs, Esq.
Brobeck, Phleger & Harrison LLP
550 South Hope Street, 21st Floor
Los Angeles, CA 90071
Fax No. 213/-745-3331
If to the Holder: Andrew W. Jamison
18 Winding Way
Plymouth, MA 02360
With a copy to: Thomas M. Zimmer, Esq.
Van Wert & Zimmer, P.C.
One Militia Drive
Lexington, MA
Fax No. 617/862-1941
If notice is given by personal delivery in accordance with the provisions of
this Section 3.5, said notice shall conclusively be deemed given at the time of
delivery. If notice is given by confirmed facsimile transmission in accordance
with the provisions of this Section 3.5, said notice shall conclusively be
deemed given at the time of the transmission. If notice is given by mail in
accordance with the provisions of this section, said notice shall conclusively
be deemed given 48 hours after deposit thereof in the United States mail. The
addressees or addresses set forth above may be changed from time to time by a
notice sent to the other parties.
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Section 3.6 Expenses. If any action at law or in equity is necessary to
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enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
Section 3.7 Amendments and Waivers. Any term of this Agreement may be
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amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company and the holders of
a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
holder of any Registrable Securities then outstanding, each future holder of all
such Registrable Securities, and the Company.
Section 3.8 Severability. If one or more provisions of this Agreement
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are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
Section 3.9 Entire Agreement. This Agreement (including the exhibits and
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schedules hereto, if any) constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
This Agreement supersedes any registration rights granted to the Holder
including, without limitation, any registration rights granted under the Merger
Agreement. Each party to this Agreement acknowledges and represents that no
representations, warranties, covenants, conditions, inducements, promises or
agreements, oral or otherwise, other than as set forth herein, have been made by
any party hereto, or anyone acting on behalf of any party.
Section 3.10 Facsimile Signatures. This Agreement may be executed
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manually or by facsimile signatures, all of which signatures shall have the same
force and effect. Any party executing this Agreement by facsimile shall as soon
as practicable thereafter deliver to counsel for the other parties a manually
signed copy of this Agreement.
Section 3.11 Venue; Jurisdiction. All actions with respect to this
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Agreement will be instituted in a state court sitting in Ventura County,
California or Suffolk County, Massachusetts or in a federal court for the
Central District of California, or the Eastern District of Massachusetts,
subject to the provisions on arbitration in (S)3.13 below. By the execution of
this Agreement, each Party irrevocably and unconditionally submits to the
jurisdiction (both subject matter and personal) of each such court and
irrevocably and unconditionally waives: (a) any objection such Party might now
or hereafter have to the venue in any such court; and (b) any claim that any
action or proceeding brought in any such court has been brought in an
inconvenient forum.
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Section 3.12 Arbitration. Any disputes arising out of this Agreement and
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the transactions among the Parties contemplated by this Agreement shall be
settled by binding arbitration to be held in (i) Ventura County, California if
such arbitration proceeding is initiated by the Holder and (ii) in Suffolk
County, Massachusetts if such arbitration proceeding is initiated by the
Company, in each case in accordance with the rules of the American Arbitration
Association. Judgment upon any award rendered by any arbitrator may be entered
in any court having jurisdiction. The statute of limitations, estoppel, waiver,
laches, and similar doctrines which would otherwise be applicable in an action
brought by a party shall be applicable in any arbitration proceeding, and the
commencement of an arbitration proceeding shall be deemed the commencement of an
action for these purposes.
Section 3.13 Attorneys' Fees. Each Party agrees that the losing party in
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any suit or action shall reimburse the prevailing party for its reasonable
costs, expenses, and attorney's fees incurred in any action brought to determine
the rights of the Parties hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first written above.
THE COMPANY: VIEW TECH, INC., a California corporation
By: /s/ William M. McKay
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Name: William M. McKay
Title: Chief Financial Officer
HOLDER:
By: /s/ Andrew W. Jamison
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Name: Andrew W. Jamison
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