REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
January 15, 1997 among Rapid Cast, Inc., a Delaware corporation (the "Company"),
J.P. Morgan Investment Corporation, a Delaware corporation ("JPMIC"), Sixty Wall
Street SBIC Fund, L.P., a Delaware limited partnership (the "SBIC Fund" and,
together with JPMIC, the "JPM Investors"), those parties listed on the signature
pages hereto under the caption "Clipper Investors" (collectively, the "Clipper
Investors"), those parties, if any, listed on the signature pages hereto under
the caption "Other Investors" (the "Other Investors" and together, with the JPM
Investors and the Clipper Investors, the "Investors") and those parties listed
on the signature pages hereto under the caption "Founders" (collectively, the
"Founders").
RECITALS:
A. Concurrently with the execution of this Agreement, the Investors
are acquiring from the Company (it being acknowledged and agreed that it is
JPMIC's intention to subsequently allocate and assign a portion of its
securities to SBIC Fund upon such terms and conditions as they may hereafter
agree) shares of the Company's Series A Convertible Preferred Stock, par value
$0.001 per share, shares of the Company's Series B Non-Voting Convertible
Preferred Stock, par value $0.001 per share and warrants to purchase shares of
the Company's Common
Stock, par value $0.001 per share, pursuant to the Convertible Preferred Stock
and Warrants Purchase Agreement of even date herewith (the "Purchase
Agreement").
B. By entering into this Agreement, the Company wishes to provide a
further inducement to the Investors to purchase the Company's Series A Stock,
Series B Stock and Warrants pursuant to the Purchase Agreement.
C. By entering into this Agreement, the Company and the Founders
wish to terminate certain registration rights previously granted to the
Founders.
NOW, THEREFORE, in consideration of the foregoing, the parties agree
as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "COMMON SHARES" means shares of Common Stock, par value
$0.001 per share of the Company.
(b) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
(c) "FORM S-3" means such form under the Securities Act as in
effect on the date hereof or any registration form under the Securities 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.
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(d) "FOUNDER WARRANT" means any of the 1,838,683 warrants issued
by the Company pursuant to the Subscription Agreement, dated as of April 26,
1996, by and between the Company and the subscribers thereto in connection with
the offering of certain bridge financing notes and in connection with the
offering of certain additional bridge financing notes in May, June and August,
1996.
(e) "HOLDER" means any Person owning or having the right to
acquire Registrable Securities, or any assignee thereof in accordance with
Section 11.
(f) "INITIATING HOLDERS" means the Holder(s) initiating a
Qualifying Request.
(g) "INVESTOR WARRANT" means any of the warrants issued by the
Company pursuant to the Purchase Agreement.
(h) "MAJORITY IN INTEREST OF THE INITIATING HOLDERS" means
Initiating Holders holding a majority of the Registrable Securities held by all
Initiating Holders.
(i) "NONVOTING COMMON STOCK" means the Nonvoting Common Stock,
par value $0.001 per share, of the Company.
(j) "PERSON" means any individual, partnership, limited
liability company, joint venture, corporation, association, trust or any other
entity or organization.
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(k) "PREFERRED STOCK" means the Series A Stock, Series B Stock
and Series C Stock of the Company.
(l) "QUALIFYING REQUEST" means a request from any of the
Investors or any of their affiliates, partners or assignees, that in the
aggregate possess at least fifty percent (50%) of the Registrable Investor
Securities outstanding as of the date of such request; PROVIDED, HOWEVER, that
(i) so long as the JPM Investors and their "Permitted Transferees" (as defined
in the Shareholders Agreement) continue to own Registrable Investor Securities
with an original purchase price of at least $2,000,000 (including, without
limitation, the purchase price of shares of Preferred Stock which are
convertible, or have been converted, into Common Shares), a request made by the
JPM Investors and their Permitted Transferees holding at least fifty percent
(50%) of the Registrable Investor Securities then held by the JPM Investors and
their Permitted Transferees will on one occasion be deemed to be a Qualifying
Request (it being understood and agreed that such a request with respect to an
offering that is not consummated for any reason shall not be deemed to
constitute a Qualifying Request by the JPM Investors) and (ii) so long as the
Clipper Investors and their Permitted Transferees continue to own Registrable
Investor Securities with an original purchase price of at least $2,000,000
(including, without limitation, the purchase price of shares of Preferred Stock
which are convertible, or have been converted, into Common Shares), a request
made by the Clipper Investors and their
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Permitted Transferees holding at least fifty percent (50%) of the Registrable
Investor Securities then held by the Clipper Investors and their Permitted
Transferees will on one occasion be deemed to be a Qualifying Request (it being
understood and agreed that such a request with respect to an offering that is
not consummated for any reason shall not be deemed to constitute a Qualifying
Request by the Clipper Investors).
(m) "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document.
(n) "REGISTRABLE FOUNDER SECURITIES" means (1) any Common Shares
owned by the Founders on the date hereof, (2) any Common Shares issuable or
issued upon conversion of the Series C Stock, (3) any Common Shares issuable or
issued upon exercise of a Founder Warrant or upon exercise of a stock option now
or hereafter owned by a Founder and issued to such Founder pursuant to a stock
option plan of the Company, (4) any Common Shares 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, or upon conversion of, such Common Shares, Series C Stock,
Founder Warrant or stock options, or other warrants, rights or securities, and
(5) any Common Shares purchased, or issuable or issued upon conversion of
Preferred
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Stock purchased, by a Founder pursuant to Sections 3.3 or 4 of the Shareholders
Agreement; PROVIDED, HOWEVER, that any Registrable Founder Securities sold by a
Person in a transaction in which such Person's rights under this Agreement are
not assigned pursuant to Section 11 below shall cease to be Registrable Founder
Securities from and after the time of such sale.
(o) "REGISTRABLE INVESTOR SECURITIES" means (1) any Common
Shares issuable (without regard to any restriction on conversion that may be
applicable to any particular holder of Preferred Stock or Nonvoting Common
Stock) or issued upon conversion of the Series A Stock or the Series B Stock or
the Nonvoting Common Stock, (2) any Common Shares issuable (without regard to
any restriction on exercise that may be applicable to a particular holder of an
Investor Warrant) or issued upon exercise of an Investor Warrant or upon
conversion of Nonvoting Common Stock issued upon exercise of an Investor
Warrant, (3) any Common Shares 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,
or upon conversion of, such Series A Stock, Series B Stock, Common Shares,
Investor Warrants, or other warrants, rights or securities, (4) any Common
Shares purchased, or issuable or issued upon conversion of Preferred Stock
purchased, by an Investor pursuant to Sections 3.3 or 4 of the Shareholders
Agreement, (5) up to 120,000 Common Shares issued to
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Mr. John L. Vidovich upon exercise of stock options granted pursuant to that
certain letter agreement, dated as of January 15, 1997, between the Company and
Mr. Vidovich and (6) up to 450,000 Common Shares issued to Mr. Frank Pipp upon
exercise of stock options granted to Mr. Pipp upon such terms and conditions as
shall be approved by the Compensation Committee of the Board of Directors of the
Company; PROVIDED, HOWEVER, that any Registrable Investor Securities sold by a
Person in a transaction in which such Person's rights under this Agreement are
not assigned pursuant to Section 11 below shall cease to be Registrable Investor
Securities from and after the time of such sale.
(p) "REGISTRABLE SECURITIES" means, collectively, the
Registrable Founder Securities and the Registrable Investor Securities.
(q) The number of shares of "REGISTRABLE FOUNDER SECURITIES THEN
OUTSTANDING" and "REGISTRABLE INVESTOR SECURITIES THEN OUTSTANDING" shall be
determined by the number of Common Shares outstanding, and the number of Common
Shares issuable, at the time in question, which are Registrable Securities.
(r) "REQUISITE INVESTORS" means the Holders of a majority of the
Registrable Investor Securities then outstanding; PROVIDED, HOWEVER, that the
"Requisite Investors" must in all cases include (x) Clipper Capital Associates,
L.P. (or its designee), acting on behalf of the "Clipper Investors", for so
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long as (A) Clipper Capital Associates, L.P. or any of its affiliates controls
the Clipper Investors and (B) the Clipper Investors and their Permitted
Transferees (as such term is defined in the Shareholders Agreement) continue to
own Registrable Investor Securities with an aggregate original purchase price of
at least $2,000,000 (including, without limitation, the purchase price of shares
of Preferred Stock which are convertible, or have been converted, into Common
Shares) and (y) JPMIC for so long as the JPM Investors and their Permitted
Transferees continue to own Registrable Investor Securities with an aggregate
original purchase price of at least $2,000,000 (including, without limitation,
the purchase price of shares of Preferred Stock which are convertible, or have
been converted, into Common Shares).
(s) "SEC" means the Securities and Exchange Commission.
(t) "SECURITIES ACT" means the Securities Act of 1933, as
amended.
(u) "SERIES A STOCK" means the Series A Preferred Stock, par
value $0.001 per share, of the Company.
(v) "SERIES B STOCK" means the Series B Preferred Stock, par
value $0.001 per share, of the Company.
(w) "SERIES C STOCK" means the Series C Preferred Stock, par
value $0.001 per share, of the Company.
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(x) "SHAREHOLDERS AGREEMENT" means that certain Shareholders
Agreement, dated of even date herewith, by and among the Company, the Investors
and the Founders.
(y) "VIOLATION" means any of the following statements, omissions
or violations: (i) any untrue statement or alleged untrue statement of a
material fact contained in a registration statement under this Agreement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto or any documents filed under state
securities or "blue sky" laws in connection therewith, (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 Securities Act, the
Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law.
2. REQUEST FOR REGISTRATION.
(a) If, after the earlier of (i) the second anniversary of the
date of this Agreement or (ii) one hundred eighty (180) days after the initial
public offering of the Company's securities, the Company shall receive a written
Qualifying Request that the Company file a registration statement under the
Securities Act, then the Company shall, within ten (10) days of the receipt
thereof, give written notice of such request
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to all Holders and shall, subject to the limitations of Section 2(b) below, use
its best efforts to prepare and file with the SEC as expeditiously as
practicable, and in any event within sixty (60) days of the receipt of such
request, a registration statement under the Securities Act with respect to all
Registrable Securities which the Holders request to be registered within twenty
(20) days of the mailing of such notice by the Company in accordance with
Section 19 below.
(b) If Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 2
and the Company shall include such information in the written notice referred to
in Section 2(a). In such event, the right of any Holder to include such
Holder's Registrable Securities in such registration shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. A majority in interest of the Initiating Holders
shall select the managing underwriter or underwriters in such underwriting
subject to approval by the Company, which approval shall not be unreasonably
withheld. All Holders proposing to distribute their securities through such
underwriting shall (together with the Company as provided in Section 4(f)) enter
into an underwriting agreement in customary
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form with the underwriter or underwriters so selected for such underwriting
by a majority in interest of the Initiating Holders; PROVIDED, HOWEVER, that
none of the JPM Investors (or any of their Permitted Transferees) or Clipper
Investors (or any of their Permitted Transferees) shall be required to make
any representations or warranties except as they relate to such Holder's
ownership of shares and authority to enter into the underwriting agreement
and to such Holder's intended method of distribution, and the liability of
such Holder shall be limited to an amount equal to the net proceeds from the
offering received by such Holder. Notwithstanding any other provision of
this Section 2, if the underwriter advises the Initiating Holders that
marketing factors require a limitation of the number of shares to be
underwritten, then the Initiating Holders shall so advise the Company and the
Company shall so advise all Holders of Registrable Securities which would
otherwise be underwritten pursuant hereto, and the number of shares of
Registrable Securities that may be included in the underwriting shall be
allocated as follows: (i) eighty percent (80%) of such number of shares
shall be allocated among the Holders of Registrable Investor Securities that
have elected to participate in such underwritten offering, pro rata according
to the number of Registrable Investor Securities held by each such Holder,
and (ii) twenty percent (20%) of such number of shares shall be allocated
among the Holders of Registrable Founder Securities that have elected to
participate in such underwritten offering, pro rata according to the number
of Registrable Founder
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Securities held by each such Holder. Without the consent of a majority in
interest of the Initiating Holders, no securities other than Registrable
Securities shall be covered by such registration.
(c) The Company shall be obligated to effect only three (3)
registrations pursuant to this Section 2 (an offering which is not consummated
for any reason shall not be counted for this purpose); PROVIDED, HOWEVER, that
the Company shall be obligated to effect as many registrations as may be
requested by Holders of Registrable Investor Securities pursuant to any
Qualifying Request in the event and so long as (i) registration pursuant to Form
S-3 or any similar "short-form" registration statement is available and (ii) the
registration covers Registrable Securities which, together with other securities
of the Company entitled to inclusion in such registration, are proposed to be
sold at an aggregate price to the public of not less than five million dollars
($5,000,000). The Company shall not be obligated to effect more than one (1)
registration (other than "short-form" registrations pursuant to Form S-3 or any
similar "short-form" registration statement) pursuant to this Section 2 in any
twelve (12) month period. If any registration is commenced pursuant to this
Section 2 and is not consummated for any reason whatsoever (a "Failed
Registration"), such Failed Registration shall not be deemed to constitute a
registration under this Section 2(c) and the Holders shall retain their rights
pursuant to this Section 2 to make Qualifying Requests; PROVIDED,
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HOWEVER, that expenses in connection with any Failed Registration shall be paid
in accordance with Section 6 hereof.
(d) Notwithstanding the foregoing, if the Company shall furnish
to Holders requesting a registration statement pursuant to this Section 2, a
certificate signed by the President of the Company stating that in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed by reason of a material pending transaction and it is therefore
essential to defer the filing of such registration statement, the Company shall
have the right to defer such filing for a period of not more than ninety (90)
days after receipt of the request of the Initiating Holders; PROVIDED, HOWEVER,
that the Company may not utilize this right more than once in any twelve (12)
month period.
3. COMPANY REGISTRATION. If (but without any obligation to do so)
the Company proposes to register (including for this purpose a registration
effected by the Company for shareholders other than the Holders) any of its
stock or other securities under the Securities Act in connection with the public
offering of such securities solely for cash (other than a registration on Form
S-8 (or similar or successor form) relating solely to the sale of securities to
participants in a Company stock plan or to other compensatory arrangements to
the extent includable on Form S-8 (or similar or successor form), or a
registration on Form S-4 (or similar or successor form)), the
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Company shall, at such time, promptly give each Holder written notice of such
registration. Upon the written request of each Holder given within twenty (20)
days after mailing of such notice by the Company in accordance with Section 19,
the Company shall, subject to the provisions of Section 8, use its reasonable
best efforts to cause to be registered under the Securities Act all of the
Registrable Securities that each such Holder has requested to be registered.
The Company shall have no obligation under this Section 3 to make any offering
of its securities, or to complete an offering of its securities that it proposes
to make, and shall incur no liability to any Holder for its failure to do so.
4. OBLIGATIONS OF THE COMPANY. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities being registered thereunder, keep
such registration statement effective for up to one hundred twenty (120) days or
until the Holders have completed the distribution referred to in such
registration statement, whichever occurs first (but in any event for at least
any period required under the Securities Act); PROVIDED THAT before filing such
registration statement or any amendments thereto, the Company
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will furnish to the Holders copies of all such documents proposed to be filed.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement.
(c) Furnish to the Holders such number of copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus and any
summary prospectus) and any other prospectus filed under Rule 424 under the
Securities Act, in conformity with the requirements of the Securities Act, and
such other documents as Holders may reasonably request in order to facilitate
the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or "blue sky"
laws of such states or jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto (i) to qualify to do business in any state or
jurisdiction where it would not otherwise be
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required to qualify but for the requirements of this clause (d), or (ii) to file
a general consent to service of process in any such state or jurisdiction.
(e) Use its best efforts to cause all Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
Company's business or operations to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities.
(f) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering.
(g) Notify each Holder of Registrable Securities covered by 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
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 the light of the circumstances then
existing.
(h) Notify each Holder of Registrable Securities covered by such
registration statement and such Holder's underwriters, if any, and confirm such
advice in writing:
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(i) when the registration statement has become effective, (ii) when any post-
effective amendment to the registration statement becomes effective and (iii) of
any request by the SEC for any amendment or supplement to the registration
statement or prospectus or for additional information.
(i) Notify each Holder of Registrable Securities if at any time
the SEC should institute or threaten to institute any proceedings for the
purpose of issuing, or should issue, a stop order suspending the effectiveness
of the Registration Statement. Upon the occurrence of any of the events
mentioned in the preceding sentence, the Company will use its best efforts to
prevent the issuance of any such stop order or to obtain the withdrawal thereof
as soon as possible. The Company will advise each Holder of Registrable
Securities promptly of any order or communication of any public board or body
addressed to the Company suspending or threatening to suspend the qualification
of any Registrable Securities for sale in any jurisdiction.
(j) Furnish, at the request of any Holder requesting
registration of Registrable Securities pursuant to this Agreement, (i) on the
date that such Registrable Securities are delivered to the underwriters for sale
in connection with a registration pursuant to this Agreement, if such securities
are being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, an opinion, dated such date, of the
counsel
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representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) on the date that the
registration statement with respect to such securities becomes effective, a
"comfort" letter dated such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, if any, and to the Holders
requesting registration of Registrable Securities, and, if such securities are
being sold through underwriters, a reaffirmation of such letter on the date that
such Registrable Securities are delivered to the underwriters for sale.
(k) As soon as practicable after the effective date of the
registration statement, and in any event within sixteen (16) months thereafter,
have "made generally available to its security holders" (within the meaning of
Rule 158 under the Securities Act) an earning statement (which need not be
audited) covering a period of at least twelve (12) months beginning after the
effective date of the registration statement and otherwise complying with
Section 11(a) of the Securities Act.
5. FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Registrable
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Securities of any selling Holder that such Holder shall furnish to the Company
such information regarding itself, the Registrable Securities held by it, and
the intended method of disposition of such securities as shall be required to
effect the registration of such Holder's Registrable Securities. If any
registration statement or comparable statement under the Securities Act refers
to an Investor or any of its affiliates, by name or otherwise, as the holder of
any securities of the Company then, unless counsel to the Company advises the
Company that the Securities Act requires that such reference be included in any
such statement, each such holder shall have the right to require the deletion of
such reference to itself and its affiliates.
6. EXPENSES OF DEMAND REGISTRATION. All expenses, other than
underwriting discounts and commissions relating to Registrable Securities,
incurred in connection with registrations, filings or qualifications pursuant to
Section 2, including without limitation all registration, filing and
qualification fees, printers' and accounting fees, fees and disbursements of
counsel for the Company, and the reasonable fees and disbursements of one
counsel (selected by a majority in interest of the Initiating Holders) for the
selling Holders shall be borne by the Company; PROVIDED, HOWEVER, that the
Company shall not be required to bear such expenses in connection with any
registration begun pursuant to Section 2 if the offering is not consummated
primarily as a result of any act or omission of any Initiating Holder (in which
case any such Initiating Holder
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shall bear such expenses); PROVIDED FURTHER, HOWEVER, that if at the time of
such withdrawal, (a) the Holders have learned of a material adverse change in
the condition (financial or otherwise), business or prospects of the Company
from that known to the Holders at the time of their request or (b) there has
occurred a material adverse change in marketing factors related to the sale of
Registrable Securities to the public from those existing at the time of the
Holders' request, then the Initiating Holders shall not be required to pay any
such expenses and the Company shall bear such expenses.
7. EXPENSES OF COMPANY REGISTRATION. The Company shall bear and pay
all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 3 for each Holder, including without limitation all
registration, filing and qualification fees, printers' and accounting fees
relating or apportionable thereto and the fees and disbursements of one counsel
for the selling Holders (selected by the Holders of a majority of the
Registrable Securities being registered), but excluding underwriting discounts
and commissions relating to Registrable Securities.
8. UNDERWRITING REQUIREMENTS. In connection with any offering
initiated by the Company involving an underwriting of shares being issued by the
Company, the Company shall not be required under Section 3 to include any
Holder's securities in such underwriting unless such Holder accepts the terms of
the
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underwriting as agreed upon between the Company and the underwriters selected
by it, and then only in such quantity as will not, in the opinion of the
underwriters, exceed the largest number of securities requested to be
included in such offering which can be sold without having an adverse effect
on such offering by the Company; PROVIDED, HOWEVER, that no Holder
participating in such underwriting shall be required to make any
representations or warranties except as they relate to such Holder's
ownership of shares and authority to enter into the underwriting agreement
and to such Holder's intended method of distribution, and the liability of
such Holder shall be limited to an amount equal to the net proceeds from the
offering received by such Holder. If the total number of securities,
including Registrable Securities, requested by shareholders to be included in
such offering exceeds the largest number of securities that the underwriters
reasonably believe can be sold without having an adverse effect on such
offering, then the Company shall be required to include in the offering only
that number of such securities, including Registrable Securities, which the
underwriters believe will not have an adverse effect on such offering. The
securities of the shareholders so included shall be allocated as follows:
(i) first, (x) eighty percent (80%) of such number of shares shall be
allocated among the Holders of Registrable Investor Securities that have
elected to participate in such offering, pro rata according to the number of
Registrable Investor Securities held by each such Holder, and (y) twenty
percent (20%) of such number of shares shall be allocated among
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the Holders of Registrable Founder Securities that have elected to
participate in such offering, pro rata according to the number of Registrable
Founder Securities held by each such Holder, and (ii) thereafter, to the
extent additional securities may be included in such offering, to other
selling shareholders, pro rata according to the total number of securities
entitled to be included therein owned by each such other selling shareholder
or in such other proportions as shall mutually be agreed to by such other
selling shareholders.
9. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) The Company will indemnify and hold harmless each Holder,
its heirs, personal representatives and assigns, each of such Holder's partners,
each of such Holder's, and each of such Holder's partners', officers, directors,
partners, employees and affiliates, any underwriter (as defined in the
Securities Act) for such Holder and each Person, if any, who controls such
Holder or underwriter within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages or liabilities (joint or several) to
which they may become subject under the Securities Act, the Exchange 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 a
Violation (PROVIDED, HOWEVER, that the Company will not be required to indemnify
any of the foregoing
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Persons on account of any losses, claims, damages or liabilities arising from a
Violation if and to the extent that such Violation was made in a preliminary
prospectus and was corrected in a subsequent prospectus that was required by law
to be delivered to the Person making the claim with respect to which
indemnification is sought hereunder (and such subsequent prospectus was made
available by the Company to permit delivery of such prospectus in a timely
manner), and such subsequent prospectus was not so delivered to such Person);
and the Company will pay to each such indemnified party, as incurred, 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 9(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 to a particular indemnified party 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 or on behalf of such indemnified party.
(b) 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,
23
who controls the Company within the meaning of the Securities 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 Securities Act, the Exchange 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 or on behalf of such Holder expressly for use in connection with
such registration; and each such Holder will pay, as incurred, any legal or
other expenses reasonably incurred by any Person intended to be indemnified
pursuant to this Section 9(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 9(b) 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 Holder, which consent shall
not be unreasonably withheld; and provided further, that, in no event shall the
liability of any Holder under this Section 9(b) exceed the net proceeds from the
offering received by such Holder.
24
(c) Promptly after receipt by an indemnified party under this
Section 9 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 9, 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 shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if 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 shall not relieve such indemnifying party of any
liability to the indemnified party under this Section 9 except if, and only to
the extent that, the indemnifying party is actually prejudiced thereby; and such
failure 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 9.
25
(d) The obligations of the Company and Holders under this
Section 9 shall survive the completion of any offering of Registrable Securities
in a registration statement under this Agreement, and otherwise.
(e) Any indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made or
omitted by or on behalf of any indemnified party.
(f) If for any reason the foregoing indemnity is unavailable,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such losses, claims, damages, liabilities
or expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party on the one hand and the indemnified
party on the other (taking into consideration, among other things, the fact that
the provision of the registration rights and indemnification hereunder is a
material inducement to the Investors to purchase Registrable Investor Securities
pursuant to the Purchase Agreement) or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law or provides a lesser sum to the
indemnified party than the amount hereinafter calculated, in such proportion as
is appropriate to reflect not only the relative benefits received by the
indemnifying party on the one hand and the indemnified party on
26
the other (taking into consideration, among other things, the fact that the
provision of the registration rights and indemnification hereunder is a material
inducement to the Investors to purchase Registrable Investor Securities pursuant
to the Purchase Agreement) but also the relative fault of the indemnifying party
and the indemnified party as well as any other relevant equitable
considerations. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by or on behalf of the indemnifying party or the
indemnified party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
Notwithstanding anything to the contrary in this Section 9, no Holder shall be
required, pursuant to this Section 9, to contribute any amount in excess of the
net proceeds received by such indemnifying party from the sale of Common Shares
in the offering to which the losses, claims, damages, liabilities or expenses of
the indemnified party relate.
10. REPORTS UNDER THE EXCHANGE ACT. With a view to making available
to the Holders the benefits of Rule 144 under the Securities Act and any other
rule or regulation of the SEC
27
that may at any time permit a Holder to sell securities of the Company to the
public without registration or pursuant to a registration on Form S-3, the
Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act, at all times
after the effective date of the first registration statement filed by the
Company for the offering of its securities to the general public;
(b) take such action as is necessary to enable the Holders to
utilize Form S-3 for the sale of their Registrable Securities;
(c) 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
(d) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Company that it has complied with the reporting requirements of Rule 144 under
the Securities Act (at any time after the effective date of the first
registration statement filed by the Company) and the Securities Act and Exchange
Act (at any time after it has become subject to such reporting requirements) or
that it qualifies as a registrant whose securities may be resold pursuant to
Form S-3 (at any time it so qualifies), (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and
28
documents so filed by the Company, and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation of the SEC
which permits the selling of any such securities without registration or
pursuant to such form.
11. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Agreement may be
assigned in whole or in part by a Holder to one or more of its Permitted
Transferees (as such term is defined in the Shareholders Agreement) or to one or
more transferees or assignees of not less than (i) 250,000 shares of the
Registrable Securities owned by such Holder (as adjusted for any stock splits,
stock dividends or stock combinations) or (ii) if such Holder shall then own
less than 250,000 shares of Registrable Securities, all Registrable Securities
then owned by such Holder, provided that such transferee or assignee delivers to
the Company a written instrument by which such transferee or assignee agrees to
be bound by the obligations imposed on Holders under this Agreement to the same
extent as if such transferee or assignee was a party hereto.
12. TERMINATION OF EXISTING REGISTRATION RIGHTS; LIMITATIONS ON
SUBSEQUENT REGISTRATION RIGHTS. By executing this Agreement, each Founder and
the Company agree that any "registration rights" such Founder may have relating
to securities of the Company arising under any other agreement are hereby
terminated. The Company represents and warrants to the
29
Holders that no other "registration rights" relating to securities of the
Company exist on the date hereof, except for the "piggy back" registration
rights granted to Ronald D. Blum, O.D., pursuant to that certain settlement
agreement, dated as of November 12, 1996, by and between the Company and Dr.
Blum. Each of the Holders represents to each other Holder that it has no other
"registration rights" relating to securities of the Company as of the date
hereof. From and after the date of this Agreement, the Company shall not,
without the prior written consent of the Requisite Investors, enter into any
agreement with any holder or prospective holder of any securities of the Company
which would allow such holder or prospective holder (a) to include such
securities in any registration filed under this Agreement, unless under the
terms of such agreement, such holder or prospective holder may include such
securities in any such registration only to the extent that the inclusion of
such holder's securities will not reduce the amount of the Registrable
Securities of the Holders which is included therein or (b) to request a
registration.
13. "MARKET STAND-OFF" AGREEMENT. Each Holder hereby agrees that,
during the period of ninety (90) days following the effective date of a
registration statement of the Company filed under the Securities Act in
connection with an underwritten offering, it shall not, to the extent requested
by the Company and such underwriter, sell or otherwise transfer or dispose of
(other than to donees or partners who agree to be similarly
30
bound) any Common Shares or any securities of the Company convertible into
Common Shares held by it except Common Shares included in such registration.
14. AMENDMENT; WAIVER. Any provision of this Agreement may be
amended only with the written consent of the Company, the Requisite Investors
and the Holders of a majority of the Registrable Founder Securities then
outstanding. The observance of any provision 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 party to be charged,
provided that (i) subject to Section 2.6 of the Shareholders Agreement, the
Requisite Investors may act on behalf of all Holders of Registrable Investor
Securities and (ii) the Holders of a majority of the Registrable Founder
Securities then outstanding may act on behalf of all such Holders. Any
amendment or waiver effected in accordance with this Section 14 shall be binding
upon each Holder of Registrable Securities at the time outstanding, each future
Holder of all such securities, and the Company.
15. CHANGES IN REGISTRABLE SECURITIES. If, and as often as, there
are any changes in the Registrable Securities by way of stock split, stock
dividend, combination or reclassification, or through merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions of this Agreement, as may be
required, so that the rights and privileges
31
granted hereby shall continue with respect to the Registrable Securities as so
changed. Without limiting the generality of the foregoing, the Company will
require any successor by merger or consolidation to assume and agree to be bound
by the terms of this Agreement, as a condition to any such merger or
consolidation.
16. ENTIRE AGREEMENT. This Agreement constitutes the full and entire
understanding and agreement among the parties with regard to the subject matter
hereof. Nothing in this Agreement, express or implied, is intended to confer
upon any Person, other than the parties hereto and their respective successors
and assigns, any rights, remedies, obligations, or liabilities under or by
reason of this Agreement, except as expressly provided herein.
17. GOVERNING LAW. This Agreement shall be governed in all respects
by the laws of the State of New York as such laws are applied to agreements
between New York residents entered into and to be performed entirely within New
York, whether or not all parties hereto are residents of New York.
18. SUCCESSORS AND ASSIGNS. The provisions hereof shall inure to the
benefit of, and be binding upon, the successors, permitted assigns (as provided
in Section 11), heirs, executors and administrators of the parties hereto.
19. NOTICES. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given in
32
writing and shall be deemed effectively given upon receipt by the party to be
notified or three (3) days after deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party to be
notified (a) if to a party other than the Company, at such party's address set
forth at the end of this Agreement or at such other address as such party shall
have furnished the Company in writing, or, until any such party so furnishes an
address to the Company, then to and at the address of the last holder of the
shares covered by this Agreement who has so furnished an address to the Company,
or (b) if to the Company, at its address set forth at the end of this Agreement,
or at such other address as the Company shall have furnished to the parties in
writing.
20. SEVERABILITY. Any invalidity, illegality or limitation on the
enforceability of this Agreement or any part thereof, by any party whether
arising by reason of the law of the respective party's domicile or otherwise,
shall in no way affect or impair the validity, legality or enforceability of
this Agreement with respect to other parties. If any provision of this
Agreement shall be judicially determined to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
21. TITLES AND SUBTITLES. The titles of the Sections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
33
22. DELAYS OR OMISSIONS; REMEDIES CUMULATIVE. It is agreed that no
delay or omission to exercise any right, power or remedy accruing to the
parties, upon any breach or default of the Company under this Agreement, shall
impair any such right, power or remedy, nor shall it be construed to be a waiver
of any such breach or default, or any acquiescence therein, or of any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. It is further agreed that any waiver, permit, consent
or approval of any kind or character by a party of any breach or default under
this Agreement, or any waiver by a party of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in writing and that all remedies, either under this
Agreement, or by law or otherwise afforded to a party, shall be cumulative and
not alternative.
23. ATTORNEYS' FEES. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which such party may be entitled.
24. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
34
25. ADDITIONAL INVESTORS AND FOUNDERS. (a) Pursuant to Section
1.3(b) of the Purchase Agreement, at any time on or before April 30, 1997, the
Company may sell up to an additional 1,333,333 shares of Series A Stock to such
persons as may be approved by the Board of Directors of the Company. Any such
persons who become "Investors" under the Purchase Agreement shall execute a
counterpart of this Agreement and thereafter shall be deemed to be "Investors"
for all purposes of this Agreement.
(b) As a condition precedent to the future grant of any stock
option and/or stock award by the Company to any person who is not then a party
to this Agreement, such person shall execute a counterpart of this Agreement and
thereafter shall be deemed to be a "Founder" for all purposes of this Agreement.
35
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"COMPANY"
RAPID CAST INC.,
ADDRESS: a Delaware corporation
1500 Hempstead Turnpike
East Meadow, NY 11554 By:
Attention: President --------------------------------------
Telecopy: (516) 465-7317 Name: Jeffrey Rubin
Title: Executive Vice President
"INVESTORS"
JPM INVESTORS:
J.P. MORGAN INVESTMENT CORPORATION
ADDRESS:
60 Wall Street By:
New York, NY 10260 --------------------------------------
Attention: Ms. Molly F. Ashby Name: Molly F. Ashby
Telecopy: (212) 648-5032 Title: Manager
SIXTY WALL STREET SBIC FUND, L.P.
ADDRESS: By: Sixty Wall Street SBIC
60 Wall Street Corporation, its General Partner
New York, NY 10260
Attention: Ms. Molly F. Ashby By:
Telecopy: (212) 648-5032 --------------------------------------
Name: Molly F. Ashby
Title: Manager
CLIPPER INVESTORS:
CLIPPER CAPITAL ASSOCIATES, L.P.
ADDRESS:
c/o Clipper Capital By: Clipper Capital Associates,
Partners, L.P. Inc., its general partner
11 Madison Avenue
26th Floor By:
New York, New York 10010 ---------------------------------
Attention: Mr. Kevin Macdonald Name: Daniel V. Cahillane
Telecopy: (212)448-5464 Title: Treasurer
36
CLIPPER/MERCHANT PARTNERS, L.P.
ADDRESS:
c/o Clipper Capital By: Clipper Capital Associates,
Partners, L.P. L.P., its general partner
11 Madison Avenue
26th Floor By: Clipper Capital Associates,
New York, New York 10010 Inc., its general partner
Attention: Mr. Kevin Macdonald
Telecopy: (212)448-5464
By:
----------------------------
Name: Daniel V. Cahillane
Title: Treasurer
CLIPPER/MERBAN, L.P.
ADDRESS:
c/o CITCO By: Clipper Capital Associates,
Curacao International Trust L.P., its general partner
Company, N.V.
De Ruyterkade 62 By: Clipper Capital Associates,
Willemstad, Curacao Inc., its general partner
P.O. Box 812
Curacao Netherland Antilles By:
Attention: Mr. Wim Langeveld ----------------------------
Telecopy: 011 5999 322 500 Name: Daniel V. Cahillane
Title: Treasurer
CLIPPER EQUITY PARTNERS I, L.P.
ADDRESS:
c/o Clipper Capital By: Clipper Capital Associates, L.P.,
Partners, L.P. its general partner
11 Madison Avenue
26th Floor By: Clipper Capital Associates,
New York, New York 10010 Inc., its general partner
Attention: Mr. Kevin Macdonald
Telecopy: (212)448-5464
By:
----------------------------
Name: Daniel V. Cahillane
Title: Treasurer
CLIPPER/EUROPEAN RE, L.P.
ADDRESS:
c/o CITCO By: Clipper Capital Associates,
Curacao International Trust L.P., its general partner
Company, N.V.
62 De Ruyterkade By: Clipper Capital Associates
Willemstad, Curacao Inc., its general partner
P.O. Box 812
Curacao Netherland Antilles
Attention: Mr. Wim Langeveld By:
Telecopy: 011 5999 322 500 ----------------------------
Name: Daniel V. Cahillane
Title: Treasurer
37
OTHER INVESTORS:
ADDRESS: -------------------------------------------
5 Forest View Drive FRANK PIPP
Gladstone, New Jersey 07934
"FOUNDERS"
ADDRESS: INCOMNET, INC.
Incomnet, Inc.
21031 Ventura Blvd. By:
Suite 1100 --------------------------------------
Woodland Hills, CA 91364 Name: Melvyn Reznick
Attention: Mr. Melvyn Reznick Title: President
Telecopy: (818) 587-5691
ADDRESS: -------------------------------------------
c/o Rapid Cast, Inc. JEFFREY RUBIN
1500 Hempstead Turnpike
East Meadow, New York 11554
Attention: Mr. Jeffrey Rubin
Telecopy: (516) 465-7317
ADDRESS: -------------------------------------------
c/o Fast Cast Corporation LARRY JOEL
4510 Robards Lane
Louisville, Kentucky 40218
Attention: Dr. Larry Joel
Telecopy: (502) 458-5919
ADDRESS: -------------------------------------------
c/o Rapid Cast, Inc. ROBERT S. COHEN
1500 Hempstead Turnpike
East Meadow, New York 11554
Telecopy: (516) 465-7317
38
ADDRESS: -------------------------------------------
c/o Rapid Cast, Inc. ALAN COHEN
1500 Hempstead Turnpike
East Meadow, New York 11554
Telecopy: (516) 465-7317
ADDRESS: -------------------------------------------
c/o Rapid Cast, Inc. MERYL COHEN as custodian for NICOLE COHEN
1500 Hempstead Turnpike and ERICA COHEN under the New York UGMA
East Meadow, New York 11554
Telecopy: (516) 465-7317
ADDRESS: -------------------------------------------
c/o Rapid Cast, Inc. MERYL COHEN as custodian for JACLYN
1500 Hempstead Turnpike COHEN and GABRIELLE COHEN under the
East Meadow, New York 11554 New York UGMA
Telecopy: (516) 465-7317
ADDRESS: THE ALLYSON COHEN IRREVOCABLE TRUST
c/o Rapid Cast, Inc.
1500 Hempstead Turnpike
East Meadow, New York 11554 -------------------------------------------
Telecopy: (516) 465-7317 By: Arlene Flohr, Trustee
ADDRESS: THE JEFFREY COHEN IRREVOCABLE TRUST
c/o Rapid Cast, Inc.
1500 Hempstead Turnpike
East Meadow, New York 11554 -------------------------------------------
Telecopy: (516) 465-7317 By: Arlene Flohr, Trustee
ADDRESS: THE STEPHANIE COHEN RUBIN
c/o Rapid Cast, Inc. IRREVOCABLE TRUST
1500 Hempstead Turnpike
East Meadow, New York 11554
Telecopy: (516) 465-7317 -------------------------------------------
By: Arlene Flohr, Trustee
ADDRESS: -------------------------------------------
152 West 57th Street NAOMI BODNER
54th Floor
New York, New York 10019
Telecopy: (212) 581-0002
39
ADDRESS: -------------------------------------------
152 West 57th Street NAOMI BODNER as custodian for MOSHE
54th Floor BODNER, AARON BODNER, ELIZAR BODNER,
New York, New York 10019 TZYPPORAH BODNER, MORDECHI BODNER,
Telecopy: (212) 581-0002 YAAKOV BODNER, RACHEL BODNER and
YISSOCHAR BODNER under the New York UGMA
ADDRESS: -------------------------------------------
152 West 57th Street LAURA HUBERFELD
54th Floor
New York, New York 10019
Telecopy: (212) 581-0002
ADDRESS: -------------------------------------------
152 West 57th Street LAURA HUBERFELD as custodian for
54th Floor JESSICA HUBERFELD and RACHEL HUBERFELD
New York, New York 10019 under the New York UGMA
Telecopy: (212) 581-0002
ADDRESS: LAURA HUBERFELD/NAOMI BODNER PARTNERSHIP
152 West 57th Street
54th Floor
New York, New York 10019 -------------------------------------------
Telecopy: (212) 581-0002 By: Laura Huberfeld, Partner
-------------------------------------------
By: Naomi Bodner, Partner
ADDRESS: -------------------------------------------
10200 Hollow Way Road MARTIN PRICE
Dallas, Texas 75229
Telecopy: (214) 369-3895
ADDRESS: -------------------------------------------
c/o Rapid Cast, Inc. DR. SHAWN ZIMBERG
1500 Hempstead Turnpike
East Meadow, New York 11554
Attention: Dr. Shawn Zimberg
Telecopy: (516) 465-7317
40
ADDRESS: -------------------------------------------
c/o Rapid Cast, Inc. JEFFREY RUBIN as custodian for JORDANA L.
1500 Hempstead Turnpike RUBIN under the New York UGMA
East Meadow, New York 11554
Attention: Mr. Jeffrey Rubin
Telecopy: (516) 465-7317
ADDRESS: -------------------------------------------
Incomnet, Inc. STEPHEN CASWELL
21031 Ventura Blvd.
Suite 1100
Woodland Hills, CA 91364
Attention: Mr. Stephen Caswell
Telecopy: (818) 587-5691
ADDRESS: -------------------------------------------
Winston & Strawn ALBERT MILSTEIN
35 West Wacker Drive
Suite 4200
Chicago, IL 60601
Attention: Albert Milstein, Esq.
Telecopy: (312) 558-5700
ADDRESS: -------------------------------------------
1 Strawberry Hill Avenue JOHN L. VIDOVICH
No. 6F
Stamford, CT 36902
41