Exhibit 4.4 Registration Rights Agreement between View Systems, Inc. and
Rubin Investment Group, dated February 18, 2000
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made by and among VIEW SYSTEMS, INC.,
a Florida corporation (the "Company"), and RUBIN INVESTMENT GROUP (the
"Purchaser").
BACKGROUND
The Purchaser has agreed to purchase shares of the Company's Common Stock,
a First Common Stock Purchase Warrant (the "First Purchase Warrant") for
1,500,000 shares of the Company's common stock and a Second Common Stock
Purchase Warrant (the "Second Purchase Warrant") for 1,000,000 shares of the
Company's common stock, pursuant to and in accordance with a Subscription and
Investment Representation Agreement dated as of even date herewith (the
"Purchase Agreement"). (The shares of Common Stock issued by the Company
pursuant to the Purchase Agreement and the shares of the Company's Common Stock
issuable by the Company pursuant to the First Purchase Warrant and the Second
Purchase Warrant are hereinafter referred to as the "Registerable Shares").
The Company has agreed to provide the registration rights set forth in this
Agreement to induce the purchase by the Purchaser of the Shares, First Purchase
Warrant and the Second Purchase Warrant pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth in this Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION A. DEMAND REGISTRATION.
1. REQUESTS FOR REGISTRATION. Upon the election of those owning not less
than 50% of the outstanding Registerable Shares, the Purchaser may make a
one-time demand for registration under the Securities Act of 1933 (the "Demand
Registration") of all or any portion of the Registerable Shares by sending
written notice of the demand to the Company. Such notice shall specify the
number of the Registerable Securities sought to be registered. The Company will
then use its best efforts to file with the Securities and Exchange Commission
(the "SEC"), at the earliest possible date but no later than sixty (60) days
following such a demand, the registration statement for the Demand Registration
(the "Demand Registration Statement"). At closing, Purchaser shall be deemed to
have demanded registration of all of Purchaser's Registerable Shares in the
Company's filed SB-2 registration statement or if that registration statement is
not declared effective, in a replacement SB-2 filed by the Company as soon as
possible thereafter.
REGISTRATION OF OTHER SECURITIES. Whenever the Company shall effect a
Demand Registration, no shares of Common
Stock owned by other stockholders of the Company ("Other Stockholders") other
than the Registerable Securities shall be included among the shares of Common
Stock covered by such registration statement unless the Purchaser shall have
consented in writing to the inclusion of such other shares of Common Stock.
Purchaser shall be deemed to have consented to inclusion of all shareholders who
currently hold contracted piggyback registration rights.
EXPENSES. The Company will pay all of the expenses relating to (i) the
preparation, filing and distribution of the registration statement, including
the filing fees, printing expenses, messenger and delivery expenses, fees and
disbursements of counsel for the Company and for the Purchaser and fees and
expenses of the independent certified accountants relating to the preparation of
the Demand Registration Statement, including the costs and expenses of employees
of the Company who participate in the preparation of the registration statement,
and (ii) the sale of the Registerable Securities, excluding commissions,
discounts and expenses of the underwriters specifically related to the offering
of the Registerable Shares by the Purchaser. Purchaser shall be responsible for
the costs of its counsel and Purchaser's counsel shall provide his best efforts
to assist with the SB-2 registration.
PRIORITY ON DEMAND REGISTRATION. If the managing underwriters advise the
Company that in their good faith opinion the number of the Registerable
Securities and other shares of Common Stock requested to be included in the
Demand Registration Statement exceeds the number that can be sold in such
offering, the Company will include in such Demand Registration Statement (i)
first, the securities the Company is obligated to include by virtue of
previously existing contract rights; (ii) second, the Registerable Securities
requested to be included in such Demand Registration Statement, (iii) third, any
shares of Common Stock that the Company desires to include on its own behalf and
(iv) fourth, where the Company has reserved "cutback" rights, any shares of
Common Stock beneficially owned by the Other Stockholders, pro rata on the basis
of the number of shares of Common Stock that the Other Stockholders wanted to
register.
SELECTION OF UNDERWRITERS. In an underwritten offering, the Company shall
have the right to select reputable, nationally recognized investment banker(s)
and manager(s) for the Demand Registration Statement and make the other
decisions regarding the underwriting arrangements for the offering covered by
the Demand Registration Statement subject to the reasonable concurrence of the
Purchaser.
SECTION B. PIGGYBACK REGISTRATIONS.
RIGHT TO PIGGYBACK. Provided the First Purchase Warrant is exercised in
full by Purchaser, if at any time after an initial public offering of the
Company's stock, the Company proposes to register any of its shares of Common
Stock under the Securities Act for an underwritten offering, whether or not for
sale for its own account (other than registrations effected pursuant to Form S-4
or S-8 promulgated under the Securities Act of 1933 (the "Securities Act") or
any successor forms thereto or other than in connection with an exchange offer
or offering solely to the Company's Shareholders), and the registration form to
be used may be used for the registration of the Registerable Shares of (a
"Piggyback Registration"), the Company will give prompt written notice to the
Purchaser of such registration. Upon the written request of the Purchaser (given
within 20 business days after the Purchaser's receipt of the Company's notice of
the proposed registration), the Company will use its best efforts to include in
the registration statement for such Piggyback Registration (the "Piggyback
Registration Statement"), subject to the allocation provisions below, all
Registerable Securities with respect to which the Company has received a written
request for inclusion. Purchaser shall not demand Piggyback Registration for any
Registerable Shares that are included in an effective and current Demand
Registration Statement.
PIGGYBACK EXPENSES. In all Piggyback Registrations, the Company shall pay
all of the expenses relating to the preparation of the Piggyback Registration
and the offering of the shares of Common Stock and the Company shall pay the
commissions, discounts and expenses of the underwriters related to the offering
of the shares of Common Stock by the Company, but will not pay the commissions,
discounts and expenses of the underwriters related to the offering of the shares
of Common Stock by the Purchaser and the Other Stockholders registered on the
Piggyback Registration Statement or the fees or expenses of special legal
counsel to the Purchaser.
PRIORITY. If the managing underwriters for the Piggyback Registration
advise the Company that in their good faith opinion the number of shares of
Common Stock requested to be included in such Piggyback Registration exceeds
the number that can be sold in such offering, the Company will allocate the
shares of Common Stock to be included as follows: first, the securities the
Company is obligated to include by virtue of previously existing contract
rights; second, any shares of Common Stock that the Company proposes to sell
on its own behalf; third, any shares of common stock carrying registration
rights that the Company must reasonably grant to underwriters to incentivize
them to underwrite the registration; fourth, Registerable Securities
requested to be included in such Piggyback Registration Statement provided,
however, that the number of Registerable Securities being registered in such
offering may not be reduced to less than twenty-five percent (25%) of the
Registerable Securities as to which the Purchaser has requested registration
hereunder; and fifth, shares of Common Stock beneficially owned by any Other
Stockholders of the Company, pro rata on the basis of the number of shares of
Common Stock that the Other Stockholders wanted to register.
SELECTION OF UNDERWRITERS. In an underwritten offering, the Company shall
have the right to select reputable, nationally recognized investment banker(s)
and manager(s) for the Piggyback Registration and to make the other decisions
regarding the underwriting arrangements for the offering covered by the
Piggyback Registration Statement. Notwithstanding the foregoing, the managing
underwriter shall be reasonably acceptable to the Purchaser if Registerable
Securities of the Purchaser are included on the Piggyback Registration
Statement.
SECTION C. REGISTRATION PROCEDURES. Whenever the holders of Registerable
Securities have requested that any Registerable Securities be registered
pursuant to Section 1 or 2 of this Agreement, the Company will, as expeditiously
as possible:
prepare and file with the SEC a registration statement with respect to such
Registerable Securities (and any amendment or supplement thereto) and use its
best efforts to cause such registration statement to become effective and to
remain effective until the closing of the underwritten offering, which shall be
within five (5) business days after the registration statement is declared
effective, or in other cases for a period of at least one hundred eighty (180)
days thereafter or until all Registerable Securities have been disposed of (if
earlier);
provide to the Purchaser before filing a registration statement or
prospectus or any amendments or supplements thereto draft copies (that are
subject to change) of all such documents proposed to be filed at least five (5)
business days prior to their filing and will give reasonable consideration in
good faith to any comments of the Purchaser or its counsel;
furnish to the Purchaser such number of copies of such registration
statement and any amendment or supplement thereto and the prospectus included in
such registration statement (including each preliminary prospectus), and such
other documents as the Purchaser may reasonably request in order to facilitate
the disposition of the Registerable Securities owned by the Purchaser;
notify in writing the Purchaser's counsel promptly (i) of the receipt by
the Company of any notification with respect to any comments by the SEC with
respect to such registration statement or prospectus or any amendment or
supplement thereto or any request by the SEC for the amending or supplementing
thereof or for additional information with respect thereto, (ii) of the receipt
by the Company of any notification with respect to the issuance by the SEC of
any stop order suspending the effectiveness of such registration statement or
prospectus or any amendment or supplement thereto or the initiation or
threatening of any proceeding for that purpose and (iii) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of such Registerable Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purposes;
use its best efforts to register or qualify such Registerable Securities
under such other securities or blue sky laws of such jurisdictions as the
managing underwriter(s) or the Purchaser may reasonably request;
enter into such customary agreements (including an underwriting agreement
in customary form) and take such other customary actions as may be reasonably
necessary to expedite or facilitate the disposition of such Registerable
Securities;
permit the Purchaser to participate in the negotiation of the underwriting
agreement and the pricing terms in connection with a Demand Registration
Statement and to remove the Registerable Securities from a Piggyback
Registration Statement based upon the pricing terms. The Company reserves the
right to make all final decisions regarding the terms of the Offering, including
price.
obtain a "comfort" letter addressed to the Company from its independent
public accountants in customary form and covering such matters of the type
customarily covered by "comfort" letters and provide a copy of such letter to
the Purchaser;
use its commercially reasonable efforts to obtain from its counsel an
opinion of counsel in customary form;
notify on a timely basis each seller of such Registerable Securities at any
time when a prospectus relating to such Registerable Securities is required to
be delivered under the Securities Act within the appropriate period mentioned in
paragraph (ii) of this Section, of the happening of any event as a result of
which the prospectus included in such 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, at the request
of such seller, prepare and furnish to such seller a reasonable number of copies
of a supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter
delivered to the offerees of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading in
light of the circumstances then existing;
make available for inspection by the Purchaser's counsel or any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such underwriter
(collectively, the "Inspectors"), all pertinent financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records'), as shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the Company's officers, directors and
employees to supply all information (together with the Records, the
"Information") reasonably requested by any such Inspector in connection with
such registration statement. Any of the Information which the Company determines
in good faith to be confidential, and of which determination the Inspectors are
so notified, shall not be disclosed by the Inspectors unless (i) the disclosure
of such Information is necessary to avoid or correct a misstatement or omission
in the registration statement, (ii) the release of such Information is ordered
pursuant to a subpoena or other order form a court of competent jurisdiction or
(iii) such Information has been made generally available to the public. The
seller of Registerable Securities agrees that it will, upon learning that
disclosure of such Information is sought in a court of competent jurisdiction,
give notice to the Company and allow the Company, at the Company's expense, to
undertake appropriate action to prevent disclosure of the Information deemed
confidential;
provide a transfer agent and registrar (which may be the same entity and
which may be the Company) for such Registerable Securities;
issue to any underwriter to which any seller of Registerable Securities may
sell shares in such offering certificates evidencing such Registerable
Securities; provided however, that the Company shall have the right to approve
any such underwriter with such approval not to be unreasonably withheld;
list such Registerable Securities on any national securities exchange on
which any shares of the Common Stock are listed or, if the Common Stock is not
listed on a national securities exchange, use its commercially reasonable
efforts to qualify such Registerable Securities for inclusion on the automated
quotation system of the National Association of Securities Dealers, Inc. (the
"NASD") or such national securities exchange as the holders of a majority of
such Registerable Securities shall request;
otherwise use its commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC and make available to its security
holders, as soon as reasonably practicable, earnings statements (which need not
be audited) for the Company's fiscal year on form 10-K after the effective date
of the registration statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Securities Act;
use its commercially reasonable efforts to take all other steps necessary
to effect the registration of such Registerable Securities contemplated hereby;
and
upon the request of those owning not less than thirty percent of the
Registerable Securities, register the Registerable Securities on Form S-3, if
available for use by the Company.
SECTION D. INDEMNIFICATION.
The Company hereby indemnifies, to the extent permitted by law, the
Purchaser and its officers and directors, and each person who controls the
Purchaser (within the meaning of the Securities Act), against all losses,
claims, damages, liabilities and expenses arising out of or resulting from any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by the Purchaser expressly for use therein or by the Purchaser's failure
to deliver a copy of the registration statement or prospectus or any amendments
or supplements thereto after the Company has furnished the Purchaser with a
sufficient number of copies of the same.
In connection with any registration statement in which any Purchaser is
participating, the Purchaser will furnish to the Company in writing such
information as is reasonably requested by the Company for use in any such
registration statement or prospectus and will indemnify, to the extent permitted
by law, the Company, its directors and officers and each person who controls the
Company (within the meaning of the Securities Act) against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact or any omission or alleged omission of a material
fact required to be stated in the registration statement or prospectus or any
amendment thereof or supplement thereto or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in information so furnished by the
Purchaser specifically for use in preparing the registration statement.
Notwithstanding the foregoing, the liability of the Purchaser under this Section
D (ii) shall be limited to an amount equal to the net proceeds actually received
by the Purchaser from the sale of Registerable Securities covered by the
registration statement.
Any person entitled to indemnification hereunder will (i) give prompt
notice to the indemnifying party of any claim with respect to which it seeks
indemnification and (ii) unless in such indemnified party's reasonable judgment
a conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party will not be subject to
any liability for any settlement made without its consent (but such consent will
not be unreasonably withheld). An indemnifying party who is not entitled, or
elects not, to assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
SECTION E. OTHER AGREEMENTS OF THE COMPANY.
From and after the date of effectiveness of a registration statement with
respect to the Company's securities under the Securities Act or such earlier
date as a registration statement filed by the Company pursuant to the Exchange
Act related to any class of the Company's securities shall have become
effective, the Company shall comply with all of the reporting requirements of
the Exchange Act and with all other public information reporting requirements of
the SEC which are conditions to the availability of Rule 144 for the sale of its
Common Stock. The Company shall cooperate with each Purchaser in supplying such
information as may be necessary for such Purchaser to complete and file any
information reporting forms currently or hereafter required by the SEC as a
condition of the availability of Rule 144.
The Company represents and warrants to the Purchaser that the registration
rights granted to the Purchaser hereby does not conflict with any of the
registration rights granted by the Company. The Company shall not, after the
date hereof, grant any registration rights which conflict with the registration
rights granted hereby.
SECTION F. TERMINATION. The rights and obligations of the parties to this
Agreement shall terminate on the tenth (10th) anniversary of this Agreement.
SECTION G. MISCELLANEOUS.
NOTICES. Any notice or other communication to be given hereunder shall
be in writing and mailed or telecopied to such party at the address or number
set forth below:
If to the Company: View Systems, Inc.
Gunther Than
925 W. Kenyon Avenue
Suite 15
Englewood, Colorado 80110
Telephone No.: 303 783 9153
Telecopier No.: 303 762 6448
with a copy to: Andrew L. Jiranek, View Systems, Inc.
9693 Gerwig Lane, Suite O
Columbia, Md. 21046
Telephone No.: 410 290 5919
Telecopier No.: 410 290 5917
If to the Purchaser: Rubin Investment Group
4929 Wilshire Boulevard
Suite 428
Los Angeles, California 90010
Telephone No.: 310/407-0111
Telecopier No.: 310/407-0155
with a copy to: Robert L. Davidson, Esq.
Wolf Haldenstein Adler Freeman & Herz, LLP
270 Madison Avenue
New York, NY 10016
Telephone No.: (212) 545-4720
Telecopier No.: (212) 686-0114
or to such other person, address or number as the party entitled to such notice
or communication shall have specified by notice to the other party given in
accordance with the provisions of this Section. Any such notice or other
communication shall be deemed given: (i) if mailed, when deposited in the mail,
properly addressed and with postage prepaid; or (ii) if sent by telecopy, when
transmitted.
AMENDMENTS AND WAIVERS. The provisions of this Agreement may be amended or
terminated and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, if approved in writing by
the Purchaser.
BINDING EFFECT. This Agreement will bind and inure to the benefit of the
respective successors (including any successor resulting from a merger or
similar reorganization), assigns, heirs and personal representatives of the
parties hereto provided, however, that such person or entities shall, as a
condition to the effectiveness of such assignment be required to execute to this
Agreement whereupon such person or entity shall have the benefits of and shall
be subject to the restrictions contained in this Agreement with respect to the
Registerable Shares. Without limiting the generality of the foregoing, in
addition, if the Purchaser liquidates or reorganizes such that its assets are
transferred to its own partners or to another entity, such partners or entity
shall succeed to all of the rights of the Purchaser hereunder.
GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to such
jurisdiction's principles of conflict of laws. In the event that the Corporation
changes its domicile after the execution and delivery of this Agreement, the law
of that jurisdiction shall govern the terms and conditions of this Agreement
thereafter.
COUNTERPARTS. This Agreement may be executed in counterparts, each of which
shall be considered to be an original instrument and to be effective as of the
date first written above and all of which taken together shall constitute one
and the same instrument.
INTERPRETATION. Unless the context of this Agreement clearly requires
otherwise, (i) references to the plural include the singular, the singular the
plural, the part the whole, (ii) references to one gender include all genders
and (iii) "including" has the inclusive meaning frequently identified with the
phrase "but not limited to." The section and other headings contained in this
Agreement are for reference purposes only and shall not control or affect the
construction of this Agreement or the interpretation thereof in any respect.
SEVERABILITY. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or enforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be in any way impaired thereby, it being
intended that all of the rights and privileges of the Purchaser shall be
enforceable to the fullest extent permitted by the law.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the 18th day of February, 2000.
VIEW SYSTEMS, INC.
By:
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DULY AUTHORIZED AGENT
RUBIN INVESTMENT GROUP
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Dan J. Rubin
Chief Executive Officer