EXHIBIT 10.22
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of March
20, 2005, by and among Verilink Corporation., a Delaware corporation, with
headquarters located at 11551 E. Arapahoe Rd., Suite 150, Centennial, Colorado
80112 (the "COMPANY"), and the undersigned buyers (each, a "BUYER", and
collectively, the "BUYERS").
WHEREAS:
A. In connection with the Securities Purchase Agreement by and among
the parties hereto of even date herewith (the "SECURITIES PURCHASE AGREEMENT"),
the Company has agreed, upon the terms and subject to the conditions set forth
in the Securities Purchase Agreement, to issue and sell to each Buyer (i) senior
secured convertible notes of the Company (the "INITIAL NOTES"), which will,
among other things, be convertible into the Company's common stock, $0.01 par
value per share (the "COMMON STOCK", as converted, the "INITIAL CONVERSION
SHARES") in accordance with the terms of the Notes, and (ii) warrants (the
"WARRANTS"), which will be exercisable to purchase shares of Common Stock (as
exercised collectively, the "WARRANT SHARES").
B. In connection with the Securities Purchase Agreement, the Company
has agreed, upon the terms and subject to the conditions set forth in the
Securities Purchase Agreement, to issue and sell to each Buyer certain
additional investment rights (the "ADDITIONAL INVESTMENT RIGHTS") which will be
exercisable to purchase additional senior secured convertible notes of the
Company (the "ADDITIONAL NOTES", and collectively with the Initial Notes, the
"NOTES"), which will be convertible into shares of Common Stock (as converted,
the "ADDITIONAL CONVERSION SHARES", and collectively with the Initial Conversion
Shares, the "CONVERSION SHARES") in accordance with the terms of the Additional
Notes.
C. The Notes bear interest, which at the option of the Company,
subject to certain conditions, may be paid in shares of Common Stock (the
"INTEREST SHARES").
D. To induce the Buyers to execute and deliver the Securities
Purchase Agreement, the Company has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (collectively, the
"1933 ACT"), and applicable state securities laws.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and each
of the Buyers hereby agree as follows:
1. Definitions.
Capitalized terms used herein and not otherwise defined herein shall
have the respective meanings set forth in the Securities Purchase Agreement. As
used in this Agreement, the following terms shall have the following meanings:
a. "ADDITIONAL EFFECTIVENESS DEADLINE" means the date that is 90
days after the applicable Exercise Date (as defined in the Additional Investment
Rights) or, if there is a full review of the Registration Statement by the SEC,
120 days after the applicable Exercise Date.
b. "ADDITIONAL FILING DEADLINE" means 30 days after the earlier of
(x) each Exercise Date at which an aggregate of at least $500,000 in principal
amount of Additional Notes are purchased by one or more Buyers or their
successors or assigns or after which there is an aggregate of at least $500,000
in principal amount of Additional Notes that have been purchased by one or more
Buyers or their successors or assigns, with respect to which the underlying
Additional Registrable Securities have not be previously registered pursuant
hereto or (y) such time after any Additional Notes are purchased that no
additional Additional Notes are available or are permitted to be purchased
pursuant to the Additional Investment Rights.
c. "ADDITIONAL REGISTRABLE SECURITIES" means (i) the Additional
Conversion Shares issued or issuable upon conversion or redemption of all of the
Additional Notes actually purchased, (ii) any Interest Shares issued or issuable
under the Additional Notes, and (iii) any share capital of the Company issued or
issuable with respect to the Additional Notes or the Additional Conversion
Shares as a result of any stock split, stock dividend, recapitalization,
exchange or similar event or otherwise with respect to the Common Stock, without
regard to any limitations on conversions of Additional Notes or exercise of the
Additional Warrants. Notwithstanding the foregoing, Additional Registrable
Securities shall not include any securities (i) sold by a person to the public
either pursuant to a registration statement or Rule 144, (ii) sold in a private
transaction in which the transferor's rights hereunder are not assigned or (iii)
that may be sold without restriction pursuant to Rule 144(k) promulgated under
the 1933 Act.
d. "ADDITIONAL REGISTRATION STATEMENT" means a registration
statement or registration statements of the Company filed under the 1933 Act
covering any Additional Registrable Securities.
e. "BUSINESS DAY" means any day other than Saturday, Sunday or any
other day on which commercial banks in the City of New York are authorized or
required by law to remain closed.
f. "CLOSING DATE" shall have the meaning set forth in the Securities
Purchase Agreement.
g. "EFFECTIVE DATE" means the date a Registration Statement has been
declared effective by the SEC.
h. "EFFECTIVENESS DEADLINE" means the Initial Effectiveness Deadline
and the Additional Effectiveness Deadline, as applicable.
i. "FILING DEADLINE" means the Initial Filing Deadline and the
Additional Filing Deadline, as applicable.
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j. "INITIAL EFFECTIVENESS DEADLINE" means the date that is 120 days
after the Closing Date.
k. "INITIAL FILING DEADLINE" means 60 days after the Closing Date.
l. "INITIAL REGISTRABLE SECURITIES" means (i) the Initial Conversion
Shares issued or issuable upon conversion or redemption of the Initial Notes,
(ii) the Warrant Shares issued or issuable upon exercise of the Warrants, (iii)
the Interest Shares issued or issuable under the Initial Notes, and (iv) any
share capital of the Company issued or issuable with respect to the Initial
Conversion Shares, the Initial Notes, the Warrant Shares and the Warrants as a
result of any stock split, stock dividend, recapitalization, exchange or similar
event or otherwise with respect to the Common Stock, without regard to any
limitations on conversions of the Initial Notes or exercises of the Warrants.
Notwithstanding the foregoing, Initial Registrable Securities shall not include
any securities (i) sold by a person to the public either pursuant to a
registration statement or Rule 144, (ii) sold in a private transaction in which
the transferor's rights hereunder are not assigned or (iii) that may be sold
without restriction pursuant to Rule 144(k) promulgated under the 1933 Act.
m. "INITIAL REGISTRATION STATEMENT" means a registration statement
or registration statements of the Company filed under the 1933 Act covering the
Initial Registrable Securities.
n. "INVESTOR" means a Buyer or any transferee or assignee thereof to
whom a Buyer assigns its rights under this Agreement and who agrees to become
bound by the provisions of this Agreement in accordance with Section 9 and any
transferee or assignee thereof to whom a transferee or assignee assigns its
rights under this Agreement and who agrees to become bound by the provisions of
this Agreement in accordance with Section 9, in each case who holds Registrable
Securities that have not been sold to the public.
o. "PERSON" means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated
organization and a government or any department or agency thereof.
p. "REGISTER," "REGISTERED," and "REGISTRATION" refer to a
registration effected by preparing and filing one or more Registration
Statements (as defined below) in compliance with the 1933 Act and pursuant to
Rule 415 and the declaration or ordering of effectiveness of such Registration
Statement(s) by the SEC.
q. "REGISTRABLE SECURITIES" means the Initial Registrable Securities
and the Additional Registrable Securities.
r. "REGISTRATION STATEMENT" means the Initial Registration Statement
and the Additional Registration Statement(s) and any registration statement
filed pursuant to the provisions of Section 2(f) hereof.
s. "REQUIRED HOLDERS" means the holders of at least a majority of
the Registrable Securities.
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t. "REQUIRED REGISTRATION AMOUNT" for the Initial Registration
Statement and the Additional Registration Statement, as applicable, means 150%
of the sum of (i) the number of Interest Shares issued and issuable pursuant to
the terms of the Initial Notes or Additional Notes, as applicable, assuming that
all principal payments on such Notes are made in a timely fashion and that the
Notes are not redeemed or converted before maturity, that all interest payments
on such Notes are made in Interest Shares and that the number of Interest Shares
is determined based on the Interest Conversion Price (as defined in the Notes),
as of the trading date immediately preceding the applicable date of
determination, (ii) the number of Conversion Shares issued and issuable pursuant
to the Initial Notes or Additional Notes as of the trading day immediately
preceding the applicable date of determination, and (ii) the number of Warrant
Shares issued and issuable pursuant to the Warrants as of the trading day
immediately preceding the applicable date of determination, all subject to
adjustment as provided in Section 2(e).
u. "RULE 144" means Rule 144 under the 1933 Act or any other similar
rule or regulation of the SEC that may at any time permit the Investors to sell
securities of the Company to the public without registration.
v. "RULE 415" means Rule 415 under the 1933 Act or any successor
rule providing for offering securities on a continuous or delayed basis.
w. "SEC" means the United States Securities and Exchange Commission.
2. Registration.
a. Initial Mandatory Registration. The Company shall prepare, and,
as soon as reasonably practicable but in no event later than the Initial Filing
Deadline, file with the SEC the Initial Registration Statement on Form S-3
covering the resale of all of the Initial Registrable Securities. In the event
that Form S-3 is unavailable for such a registration, the Company shall use such
other form as is available for such a registration, subject to the provisions of
Section 2(d). The Initial Registration Statement prepared pursuant hereto shall
register for resale at least the number of shares of Common Stock equal to the
Required Registration Amount as to the Initial Registrable Securities as of the
date the Initial Registration Statement is initially filed with the SEC. The
Initial Registration Statement shall contain (except to the extent requested
otherwise by the Required Holders or reasonably determined by the Company to be
inappropriate) the "Selling Stockholders" and "Plan of Distribution" sections in
substantially the form attached hereto as Exhibit B. The Company shall use its
reasonable best efforts to have the Initial Registration Statement declared
effective by the SEC as soon as reasonably practicable, but in no event later
than the Initial Effectiveness Deadline. The Company shall not be obligated to
enter into any underwriting agreement for the sale of any of the Initial
Registrable Securities.
b. Additional Mandatory Registration. The Company shall prepare,
and, as soon as reasonably practicable but in no event later than the Additional
Filing Deadline, file with the SEC an Additional Registration Statement on Form
S-3 covering the resale of all of the Additional Registrable Securities not
previously registered on an Additional Registration Statement hereunder. In the
event that Form S-3 is unavailable for such a registration, the
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Company shall use such other form as is available for such a registration,
subject to the provisions of Section 2(e). Each Additional Registration
Statement prepared pursuant hereto shall register for resale at least the number
of Shares of Common Stock equal to the Required Registration Amount as to the
Additional Registrable Securities not previously registered pursuant to this
Agreement as of the date such Additional Registration Statement is initially
filed with the SEC. Each Additional Registration Statement shall contain (except
to the extent requested otherwise by the Required Holders or reasonably
determined by the Company to be inappropriate) the "Selling Stockholders" and
"Plan of Distribution" sections in substantially the form attached hereto as
Exhibit B. The Company shall use its reasonable best efforts to have the
Additional Registration Statement declared effective by the SEC as soon as
reasonably practicable, but in no event later than the Additional Effectiveness
Deadline. The Company shall not be obligated to enter into any underwriting
agreement for the sale of any of the Additional Registrable Securities.
c. Allocation of Registrable Securities. The initial number of
Registrable Securities included in any Registration Statement and any increase
in the number of Registrable Securities included therein shall be allocated pro
rata among the Investors based on the number of Registrable Securities held by
each Investor at the time the Registration Statement covering such initial
number of Registrable Securities or increase thereof is declared effective by
the SEC. In the event that an Investor sells or otherwise transfers any of such
Investor's Registrable Securities, each transferee shall, subject to the
provisions of Section 9 hereof, be allocated a pro rata portion of the then
remaining number of Registrable Securities included in such Registration
Statement for such transferor. Any shares of Common Stock included in a
Registration Statement and which remain allocated to any Person which ceases to
hold any Registrable Securities covered by such Registration Statement shall be
allocated to the remaining Investors, pro rata based on the number of
Registrable Securities then held by such Investors which are covered by such
Registration Statement. In no event shall the Company include any securities
other than Registrable Securities on any Registration Statement without the
prior written consent of the Required Holders.
d. Legal Counsel. Subject to Section 5 hereof, the Required Holders
shall have the right to select one legal counsel to review any Registration
Statement and related prospectus pursuant to this Section 2 ("LEGAL COUNSEL"),
which shall be Schulte Roth & Zabel LLP or such other counsel as thereafter
designated by the Required Holders. The Company shall permit Legal Counsel to
review any such Registration Statement and prospectus and all amendments and
supplements thereto, and any comments made by the staff of the SEC and the
Company's responses thereto, within a reasonable period of time prior to the
filing thereof with the SEC (or, in the case of comments made by the staff of
the SEC, within a reasonable period of time following the receipt thereof by the
Company).
e. Ineligibility for Form S-3. In the event that the Company does
not meet the eligibility requirements for filing a Registration Statement on
Form S-3 for the registration of the resale of Registrable Securities hereunder,
the Company shall (i) register the resale of the Registrable Securities on
another appropriate form and (ii) undertake to register the Registrable
Securities on Form S-3 as soon as such form is available (through post-effective
amendment of an existing Registration Statement or otherwise), provided that the
Company shall maintain the effectiveness of the Registration Statement filed
pursuant to subsection (i) above
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then in effect until such time as a Registration Statement on Form S-3 covering
the Registrable Securities has been declared effective by the SEC.
f. Sufficient Number of Shares Registered. In the event the number
of shares available under a Registration Statement filed pursuant to Section
2(a) or Section 2(b) is insufficient to cover all of the Registrable Securities
required to be covered by such Registration Statement or an Investor's allocated
portion of the Registrable Securities pursuant to Section 2(b), the Company
shall amend the applicable Registration Statement, or file a new Registration
Statement (on the short form available therefor, if applicable), or both, so as
to cover at least the Required Registration Amount as of the trading day
immediately preceding the date of the filing of such amendment or new
Registration Statement, in each case, as soon as reasonably practicable, but in
any event not later than fifteen (15) days after the necessity therefor arises.
The Company shall use its reasonable best efforts to cause such amendment and/or
new Registration Statement to become effective as soon as reasonably practicable
following the filing thereof. For purposes of the foregoing provision, the
number of shares available under a Registration Statement shall be deemed
"insufficient to cover all of the Registrable Securities" if at any time the
number of shares of Common Stock available for resale under the Registration
Statement is less than the product determined by multiplying (i) the Required
Registration Amount as of such time by (ii) 0.67. The calculation set forth in
the foregoing sentence shall be made without regard to any limitations on the
conversion of the Notes or the exercise of the Warrants or the Additional
Investment Rights (unless such Warrants or Additional Investment Rights have
expired in accordance with their terms) and such calculation shall assume that
the Notes are then convertible into shares of Common Stock at the then
prevailing Conversion Rate (as defined in the Notes) and that the unexpired
Warrants and Additional Investment Rights are then exercisable for shares of
Common Stock or Additional Notes at the then prevailing Exercise Price (as
defined in the Warrants and Additional Investment Rights, respectively).
g. Effect of Failure to File and Obtain and Maintain Effectiveness
of Registration Statement. If (i) a Registration Statement or Registration
Statements covering all of the Registrable Securities required to be covered
thereby and required to be filed by the Company pursuant to this Agreement are,
(A) not filed with the SEC on or before the respective Filing Deadline (a
"FILING FAILURE") or (B) not declared effective by the SEC on or before the
respective Effectiveness Deadline (an "EFFECTIVENESS FAILURE") or (ii) on any
day after the applicable Effective Date sales of all of the Registrable
Securities required to be included on such Registration Statement cannot be made
(other than during an Allowable Grace Period (as defined in Section 3(r))
pursuant to such Registration Statement (including, without limitation, because
of a failure to keep such Registration Statement effective, to disclose such
information as is necessary for sales to be made pursuant to such Registration
Statement or to register a sufficient number of shares of Common Stock) (a
"MAINTENANCE FAILURE") then, as partial relief for the damages to any holder by
reason of any such delay in or reduction of its ability to sell the underlying
shares of Common Stock (which remedy shall not be exclusive of any other
remedies available at law or in equity), the Company shall pay to each holder of
Registrable Securities relating to such Registration Statement an amount in cash
equal to one percent (1%) of the aggregate Purchase Price (as such term is
defined in the Securities Purchase Agreement) of such Investor's Registrable
Securities included in such Registration Statement (or, in the case of a
Maintenance Failure resulting from failure to register a sufficient number of
shares of Common Stock, cash equal one percent (1%) of the greater of (x)
one-third (1/3) of the aggregate Purchase
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Price or (y) the Purchase Price of such Investor's Registrable Securities that
cannot be sold) on each of the following dates: (i) the day of a Filing Failure
and on every thirtieth day (pro rated for periods totaling less than thirty
days) thereafter until such Filing Failure is cured; (ii) on the thirtieth day
after an Effectiveness Failure and on every thirtieth day (pro rated for periods
totaling less than thirty days) thereafter until such Effectiveness Failure is
cured; (iii) the initial day of a Maintenance Failure and on every thirtieth day
(pro rated for periods totaling less than thirty days) thereafter until such
Maintenance Failure is cured. The payments to which a holder shall be entitled
pursuant to this Section 2(g) are referred to herein as "REGISTRATION DELAY
PAYMENTS." Registration Delay Payments shall be paid on the earlier of (I) the
last day of the calendar month during which such Registration Delay Payments are
incurred and (II) the third Business Day after the event or failure giving rise
to the Registration Delay Payments is cured. In the event the Company fails to
make Registration Delay Payments in a timely manner, such Registration Delay
Payments shall bear interest at the rate of 1.0% per month (prorated for partial
months) until paid in full.
h. The obligations of the Company under this Section 2 shall
terminate at such time as there are no Registrable Securities held by the Buyers
or there assignees hereunder.
3. Related Obligations.
At such time as the Company is obligated to file a Registration Statement
with the SEC pursuant to Section 2(a), 2(b), 2(e) or 2(f), the Company will use
its reasonable best efforts to effect the registration of the Registrable
Securities in accordance with the intended method of disposition thereof and,
pursuant thereto, the Company shall have the following obligations:
a. The Company shall submit to the SEC, within two (2) Business Days
after the Company learns that no review of a particular Registration Statement
will be made by the staff of the SEC or that the staff has no further comments
on a particular Registration Statement, as the case may be, a request for
acceleration of effectiveness of such Registration Statement to a time and date
not later than 48 hours after the submission of such request. Subject to the
terms hereof, including but not limited to Section 3(r), the Company shall keep
each Registration Statement effective pursuant to Rule 415 at all times until
the earlier of (i) the date as of which the Investors may sell all of the
Registrable Securities covered by such Registration Statement without
restriction pursuant to Rule 144(k) (or any successor thereto) promulgated under
the 1933 Act or (ii) the date on which the Investors shall have disposed of all
of the Registrable Securities covered by such Registration Statement (the
"REGISTRATION PERIOD"). The Company shall ensure that each Registration
Statement (including any amendments or supplements thereto and prospectuses
contained therein) shall not contain any 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 (in the case of prospectuses, in the light of the
circumstances in which they were made) not misleading.
b. The Company shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to a Registration
Statement and the prospectus used in connection with such Registration
Statement, which prospectus is to be filed pursuant to Rule 424 promulgated
under the 1933 Act, as may be necessary to keep such Registration Statement
effective at all times during the Registration Period, and, during such
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period, comply with the provisions of the 1933 Act with respect to the
disposition of all Registrable Securities of the Company covered by such
Registration Statement until such time as all of such Registrable Securities
shall have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such Registration
Statement. In the case of amendments and supplements to a Registration Statement
which are required to be filed pursuant to this Agreement (including pursuant to
this Section 3(b)) by reason of the Company filing a report on Form 10-Q, Form
10-K, Form 8-K or any analogous report under the Securities Exchange Act of
1934, as amended (the "1934 ACT"), the Company shall have incorporated such
report by reference into such Registration Statement, if applicable, or shall
file such amendments or supplements with the SEC on the same day on which the
1934 Act report is filed which created the requirement for the Company to amend
or supplement such Registration Statement.
c. The Company shall (A) permit Legal Counsel to review and comment
upon (i) a Registration Statement within a reasonable amount of time prior to
its filing with the SEC and (ii) all amendments and supplements to all
Registration Statements (except for Annual Reports on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K and any similar or successor
reports) within a reasonable amount of time prior to their filing with the SEC,
and (B) not file, or submit a request for the acceleration of the effectiveness
of, any Registration Statement or amendment or supplement thereto in a form to
which Legal Counsel reasonably and timely objects. The Company shall furnish to
Legal Counsel, without charge, (i) copies of any correspondence from the SEC or
the staff of the SEC to the Company or its representatives relating to any
Registration Statement, (ii) promptly after the same is prepared and filed with
the SEC, one copy of any Registration Statement and any amendment(s) thereto,
including financial statements and schedules, all documents incorporated therein
by reference, if requested by an Investor, and all exhibits and (iii) upon the
effectiveness of any Registration Statement, one copy of the prospectus included
in such Registration Statement and all amendments and supplements thereto.
d. The Company shall furnish to each Investor whose Registrable
Securities are included in any Registration Statement, without charge, (i)
promptly after the same is prepared and filed with the SEC, at least one copy of
such Registration Statement and any amendment(s) thereto, including financial
statements and schedules, all documents, including exhibits, incorporated
therein by reference, if requested by an Investor and not otherwise available on
the EDGAR system, and each preliminary prospectus, and (ii) upon the
effectiveness of any Registration Statement (but in no event later than two
Business Days after the Effective Date), ten (10) copies of the prospectus
included in such Registration Statement and all amendments and supplements
thereto (or such other number of copies as such Investor may reasonably
request).
e. The Company shall use its reasonable best efforts to (i) register
and qualify, unless an exemption from registration and qualification applies,
the resale by Investors of the Registrable Securities covered by a Registration
Statement under such other securities or "blue sky" laws of such jurisdictions
in the United States as the Investor may reasonably request, (ii) prepare and
file in those jurisdictions, such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof during the Registration Period,
(iii) take such other actions as
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may be necessary to maintain such registrations and qualifications in effect at
all times during the Registration Period to the extent necessary to enable the
Investors to consummate the public sale of the Registrable Securities covered by
such Registration Statement, and (iv) take all other actions reasonably
necessary or advisable to qualify the Registrable Securities for sale in such
jurisdictions; provided, however, that the Company shall not be required in
connection therewith or as a condition thereto to (x) qualify to do business in
any jurisdiction where it would not otherwise be required to qualify but for
this Section 3(e), (y) subject itself to general taxation in any such
jurisdiction, or (z) file a general consent to service of process in any such
jurisdiction. The Company shall promptly notify Legal Counsel and each Investor
who holds Registrable Securities of the receipt by the Company of any
notification with respect to the suspension of the registration or qualification
of any of the Registrable Securities for sale under the securities or "blue sky"
laws of any jurisdiction in the United States or its receipt of actual notice of
the initiation or threatening of any proceeding for such purpose.
f. The Company shall notify Legal Counsel and each Investor in
writing of the happening of any event, as promptly as reasonably practicable
after becoming aware of such event, as a result of which the prospectus included
in a Registration Statement, as then in effect, includes an untrue statement of
a material fact or omission to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading (provided that in no
event shall such notice contain any material, nonpublic information), and,
subject to Section 3(r), promptly prepare a supplement or amendment to such
Registration Statement to correct such untrue statement or omission, and deliver
ten (10) copies of such supplement or amendment to Legal Counsel and each
Investor (or such other number of copies as Legal Counsel or such Investor may
reasonably request). The Company shall also promptly notify Legal Counsel and
each Investor in writing (i) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and when a Registration Statement or
any post-effective amendment has become effective (notification of such
effectiveness shall be delivered to Legal Counsel and each Investor by
electronic mail or facsimile on the same day of such effectiveness and by
overnight mail), (ii) of any request by the SEC for amendments or supplements to
a Registration Statement or related prospectus or related information, and (iii)
of the Company's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
g. The Company shall use its reasonable best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a
Registration Statement, or the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension at
the earliest reasonably practicable moment and to notify Legal Counsel and each
Investor who holds Registrable Securities being sold of the issuance of such
order and the resolution thereof or its receipt of actual notice of the
initiation or threat of any proceeding for such purpose.
h. If any Investor is required under applicable securities law to be
described in the Registration Statement as an underwriter, at the reasonable
request of such Investor, the Company shall use its reasonable efforts to
furnish to such Investor, on the date of the effectiveness of the Registration
Statement and thereafter from time to time on such dates as an Investor may
reasonably request (i) a letter, dated such date, from the Company's independent
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certified public accountants in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the Investors, and (ii) an opinion, dated as of
such date, of counsel representing the Company for purposes of such Registration
Statement, in form, scope and substance as is customarily given in an
underwritten public offering, addressed to the Investors.
i. In connection with the Investors' due diligence efforts, the
Company shall make available for inspection during business hours and upon
reasonable advance request by (i) any Investor, (ii) Legal Counsel and (iii) one
firm of accountants or other agents retained by the Investors (collectively, the
"INSPECTORS"), all pertinent financial and other records, and pertinent
corporate documents and properties of the Company (collectively, the "RECORDS"),
as shall be reasonably deemed necessary by each Inspector, and cause the
Company's officers, directors and employees to supply all information which any
Inspector may reasonably request; provided, however, that each Inspector shall
agree in writing to hold in strict confidence and shall not make any disclosure
(except to an Investor) or use of any Record or other information which the
Company determines in good faith to be confidential, and of which determination
the Inspectors are so notified, unless (a) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in any Registration
Statement or is otherwise required under the 1933 Act, (b) the release of such
Records is ordered pursuant to a final, non-appealable subpoena or order from a
court or government body of competent jurisdiction, or (c) the information in
such Records has been made generally available to the public other than by
disclosure in violation of this or any other agreement of which the Inspector
has knowledge. Each Investor agrees that it shall, upon learning that disclosure
of such Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to the Company and allow
the Company, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, the Records deemed
confidential. Nothing herein (or in any other confidentiality agreement between
the Company and any Investor) shall be deemed to limit the Investors' ability to
sell Registrable Securities in a manner which is otherwise consistent with
applicable laws and regulations.
j. The Company shall hold in confidence and not make any disclosure
of information concerning an Investor provided to the Company unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws or applicable rules and regulations of the Principal Market,
(ii) the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that disclosure of
such information concerning an Investor is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
written notice to such Investor and allow such Investor, at the Investor's
expense, to undertake appropriate action to prevent disclosure of, or to obtain
a protective order for, such information.
k. The Company shall use its reasonable best efforts either to (i)
cause all of the Registrable Securities covered by a Registration Statement to
be listed on each securities exchange on which securities of the same class or
series issued by the Company are then listed, if
10
any, if the listing of such Registrable Securities is then permitted under the
rules of such exchange or applicable law, or (ii) secure designation and
quotation of all of the Registrable Securities covered by a Registration
Statement on the Nasdaq National Market or (iii) if, despite the Company's
reasonable best efforts to satisfy, the preceding clauses (i) and (ii) the
Company is unsuccessful in satisfying the preceding clauses (i) and (ii), to
secure the inclusion for quotation on The Nasdaq SmallCap Market for such
Registrable Securities and, without limiting the generality of the foregoing, to
use reasonable best efforts to arrange for at least two market makers to
register with the National Association of Securities Dealers, Inc. ("NASD") as
such with respect to such Registrable Securities. The Company shall pay all fees
and expenses in connection with satisfying its obligation under this Section
3(k).
l. The Company shall cooperate with the Investors who hold
Registrable Securities being offered and, to the extent applicable, facilitate
the timely preparation and delivery of certificates representing the Registrable
Securities to be offered pursuant to a Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, as the
Investors may reasonably request and registered in such names as the Investors
may request.
m. If requested by an Investor, the Company shall, to the extent
necessary to comply with the provisions of the 1933 Act with respect to the
disposition of such Investor's portion of the Registrable Securities covered by
a Registration Statement pursuant to the terms hereof (i) as soon as reasonably
practicable incorporate in a prospectus supplement or post-effective amendment
such information as an Investor reasonably requests to be included therein
relating to the sale and distribution of Registrable Securities, including,
without limitation, information with respect to the number of Registrable
Securities being offered or sold, the purchase price being paid therefor and any
other terms of the offering of the Registrable Securities to be sold in such
offering; (ii) as soon as reasonably practicable make all required filings of
such prospectus supplement or post-effective amendment after being notified of
the matters to be incorporated in such prospectus supplement or post-effective
amendment; and (iii) as soon as reasonably practicable, supplement or make
amendments to any Registration Statement if reasonably requested by an Investor
holding any Registrable Securities.
n. The Company shall use its reasonable best efforts to cause the
Registrable Securities covered by a Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may be
necessary to consummate the disposition of such Registrable Securities.
o. The Company shall make generally available to its security
holders as soon as practical, but not later than ninety (90) days after the
close of the period covered thereby, an earnings statement (in form complying
with, and in the manner provided by, the provisions of Rule 158 under the 1933
Act which provides that an earning statement is deemed to be made generally
available its security holders if such information is contained in one report or
any combination of reports either on Form 10-K, Form 10-Q, Form 8-K, or in the
annual report to security holders pursuant to Rule 14a-3 under the 1934 Act)
covering a twelve-month period beginning not later than the first day of the
Company's fiscal quarter next following the effective date of a Registration
Statement.
11
p. The Company shall otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the SEC in connection with
any registration hereunder.
q. Within two (2) Business Days after a Registration Statement which
covers Registrable Securities is ordered effective by the SEC, the Company shall
deliver, and shall cause legal counsel for the Company to deliver, to the
transfer agent for such Registrable Securities (with copies to the Investors
whose Registrable Securities are included in such Registration Statement)
confirmation that such Registration Statement has been declared effective by the
SEC in the form attached hereto as Exhibit A.
r. Notwithstanding anything to the contrary herein, at any time
after the Registration Statement has been declared effective by the SEC, the
Company may delay the disclosure of material, non-public information concerning
the Company the disclosure of which at the time is not, in the good faith
opinion of the Board of Directors of the Company and upon the advice of its
counsel, in the best interest of the Company and, upon the advice of counsel to
the Company, otherwise required (a "GRACE PERIOD"); provided, that the Company
shall promptly (i) notify the Investors in writing of the existence of material,
non-public information giving rise to a Grace Period (provided that in each
notice the Company will not disclose the content of such material, non-public
information to the Investors) and the date on which the Grace Period will begin,
and (ii) notify the Investors in writing of the date on which the Grace Period
ends; and, provided further, that during any three hundred sixty five (365) day
period such Grace Periods shall not exceed an aggregate of thirty-five (35) days
(each, an "ALLOWABLE GRACE PERIOD"). For purposes of determining the length of a
Grace Period above, the Grace Period shall begin on and include the date the
Investors receive the notice referred to in clause (i) and shall end on and
include the later of the date the Investors receive the notice referred to in
clause (ii) and the date referred to in such notice. Subject to the provisions
of Section 2(g), the Company may delay the filing or effectiveness or suspend
the use or effectiveness of any Registration Statement (and the Investors hereby
agree not to offer or sell any Registrable Securities pursuant to such
Registration Statement), and the provisions of Section 3(g) hereof shall not be
applicable, during the period of any Allowable Grace Period. Upon expiration of
the Grace Period, the Company shall again be bound by the first sentence of
Section 3(f) with respect to the information giving rise thereto unless such
material, non-public information is no longer applicable. Notwithstanding
anything to the contrary, the Company shall cause its transfer agent to deliver
unlegended shares of Common Stock to a transferee of an Investor for any sale of
Registrable Securities made under a Registration Statement or pursuant to Rule
144 with respect to which an Investor has entered into a contract for sale, and
delivered a copy of the prospectus included as part of the applicable
Registration Statement, prior to the Investor's receipt of the notice of a Grace
Period and for which the Investor has not yet settled.
4. Obligations of the Investors.
a. Within the reasonable amount of time prior to the first
anticipated filing date of a Registration Statement, the Company shall notify
each Investor in writing of the information the Company requires from each such
Investor if such Investor elects to have any of such Investor's Registrable
Securities included in such Registration Statement. It shall be a condition
precedent to the obligations of the Company to complete the registration
pursuant to
12
this Agreement with respect to the Registrable Securities of a particular
Investor that such Investor shall furnish to the Company such information
regarding itself, the Registrable Securities held by it and the intended method
of disposition of the Registrable Securities held by it as shall be reasonably
required to effect the effectiveness of the registration of such Registrable
Securities and shall execute such documents in connection with such registration
as the Company may reasonably request, including a registration statement
questionnaire in the form provided by the Company.
b. Each Investor, by such Investor's acceptance of the Registrable
Securities, agrees to cooperate with the Company as reasonably requested by the
Company in connection with the preparation and filing of any Registration
Statement hereunder, unless such Investor has notified the Company in writing of
such Investor's election to exclude all of such Investor's Registrable
Securities from such Registration Statement.
c. Each Investor agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(g) or
the first sentence of 3(f), such Investor will immediately discontinue
disposition of Registrable Securities pursuant to any Registration Statement(s)
covering such Registrable Securities until such Investor's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 3(g) or the
first sentence of 3(f) or receipt of notice that no supplement or amendment is
required. Notwithstanding anything to the contrary, the Company shall cause its
transfer agent to deliver unlegended shares of Common Stock to a transferee of
an Investor for any sale of Registrable Securities made under a Registration
Statement or pursuant to Rule 144 with respect to which an Investor has entered
into a contract for sale prior to the Investor's receipt of a notice from the
Company of the happening of any event of the kind described in Section 3(g) or
the first sentence of 3(f) and for which the Investor has not yet settled.
d. To the extent required by applicable law, each Investor shall
promptly notify the Company of any change in any information regarding such
Investor furnished by such Investor to the Company for inclusion in a
Registration Statement. Each Investor covenants and agrees that it will comply
with the prospectus delivery requirements of the 1933 Act as applicable to it in
connection with sales of Registrable Securities pursuant to the Registration
Statement.
e. To the extent required by applicable law, each Investor shall
deliver a prospectus to the purchaser of Registrable Securities held by such
Investor.
f. The Investors shall (i) notify the Company in the event that any
information supplied by such Investor in writing for inclusion in any
Registration Statement or related prospectus is materially untrue or omits to
state a material fact required to be stated therein or necessary to make such
information not misleading in light of the circumstances then existing and (ii)
immediately discontinue any sale or other disposition of Registrable Securities
pursuant to any such Registration Statement or prospectus until the filing of an
amendment or supplement to such prospectus as may be necessary so that such
prospectus does not contain an untrue statement of 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.
13
g. At the end of the Registration Period with respect to a
Registration Statement, the Investors holding Registrable Securities subject to
such Registration Statement shall discontinue sales of shares pursuant to such
Registration Statement upon receipt of notice from the Company of its intention
to remove from registration the shares covered by such Registration Statement
which remain unsold.
5. Expenses of Registration.
All reasonable expenses, other than underwriting discounts and
commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printers and accounting fees, and
fees and disbursements of counsel for the Company shall be paid by the Company.
The Company shall also reimburse the Investors for the fees and disbursements of
Legal Counsel in connection with registration, filing or qualification pursuant
to Sections 2 and 3 of this Agreement which amount shall be limited to $10,000
for the Initial Registration Statement and $5,000 for each Additional
Registration Statement.
6. Indemnification.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. To the fullest extent permitted by law, the Company will, and
hereby does, indemnify, hold harmless and defend each Investor, the directors,
officers, members, partners, employees, agents, representatives of, and each
Person, if any, who controls any Investor within the meaning of the 1933 Act or
the 1934 Act (each, an "INDEMNIFIED PERSON"), against any losses, claims,
damages, liabilities, judgments, fines, penalties, charges, costs, reasonable
attorneys' fees, amounts paid in settlement or expenses, joint or several,
(collectively, "CLAIMS") incurred in investigating, preparing or defending any
action, claim, suit, inquiry, proceeding, investigation or appeal taken from the
foregoing by or before any court or governmental, administrative or other
regulatory agency, body or the SEC, whether pending or threatened, whether or
not an indemnified party is or may be a party thereto ("INDEMNIFIED DAMAGES"),
to which any of them may become subject insofar as such Claims (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon: (i) any untrue statement or alleged untrue statement of a
material fact in a Registration Statement or any post-effective amendment
thereto or in any filing made in connection with the qualification of the
offering under the securities or other "blue sky" laws of any jurisdiction in
which Registrable Securities are offered ("BLUE SKY FILING"), or the omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used in accordance with applicable law prior to the
effective date of such Registration Statement, or contained in the final
prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in the light of the circumstances under which the statements therein
were made, not misleading, (iii) any violation or alleged violation by the
Company of the 1933 Act, the 1934 Act, any other securities law, including,
without limitation, any state securities
14
law, or any rule or regulation thereunder relating to the offer or sale of the
Registrable Securities pursuant to a Registration Statement or (iv) any
violation of this Agreement (the matters in the foregoing clauses (i) through
(iv) being, collectively, "VIOLATIONS"). Subject to Section 6(c), the Company
shall reimburse the Indemnified Persons, promptly as such expenses are
reasonably incurred and are due and payable, for any legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i) shall
not apply to a Claim by an Indemnified Person arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by such Indemnified Person for such
Indemnified Person expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or supplement thereto, if
such prospectus was timely made available by the Company pursuant to Section
3(d); (ii) with respect to any preliminary prospectus, shall not inure to the
benefit of any such Person from whom the Person asserting any such Claim
purchased the Registrable Securities that are the subject thereof (or to the
benefit of any Person controlling such Person) if the untrue statement or
omission of material fact contained in the preliminary prospectus was corrected
in the prospectus, as then amended or supplemented and if such prospectus was
timely made available by the Company pursuant to Section 3(d), and the
Indemnified Person was promptly advised in writing not to use the incorrect
prospectus prior to the use giving rise to a violation and such Indemnified
Person, notwithstanding such advice, used it or failed to deliver the correct
prospectus as required by the 1933 Act; (iii) shall not be available to the
extent such Claim is based on a failure of the Investor to deliver or to cause
to be delivered the prospectus made available by the Company, including a
corrected prospectus, if such prospectus or corrected prospectus was timely made
available by the Company pursuant to Section 3(d); and (iv) shall not apply to
amounts paid in settlement of any Claim if such settlement is effected without
the prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Indemnified
Person and shall survive the transfer of the Registrable Securities by the
Investors pursuant to Section 9.
b. In connection with any Registration Statement in which an
Investor is participating, each such Investor agrees to severally and not
jointly indemnify, hold harmless and defend, to the same extent and in the same
manner as is set forth in Section 6(a), the Company, each of its directors, each
of its officers who signs the Registration Statement and each Person, if any,
who controls the Company within the meaning of the 1933 Act or the 1934 Act
(each, an "INDEMNIFIED PARTY"), against any Claim or Indemnified Damages to
which any of them may become subject, under the 1933 Act, the 1934 Act or
otherwise, insofar as such Claim or Indemnified Damages 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 to the Company by such Investor expressly for use in
connection with such Registration Statement or any post-effective amendment
thereof; and, subject to Section 6(c), such Investor promptly will reimburse,
promptly as such expenses are reasonably incurred and are due and payable, any
legal or other expenses reasonably incurred by an Indemnified Party in
connection with investigating or defending any such Claim; provided, however,
that the indemnity agreement contained in this Section 6(b) and the agreement
with respect to contribution contained in Section 7 shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the prior
written consent of such Investor, which consent
15
shall not be unreasonably withheld or delayed; provided, further, however, that
the Investor shall be liable under this Section 6(b) for only that amount of a
Claim or Indemnified Damages as does not exceed the net proceeds to such
Investor as a result of the sale of Registrable Securities pursuant to such
Registration Statement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Party
and shall survive the transfer of the Registrable Securities by the Investors
pursuant to Section 9. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(b) with
respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact contained
in the preliminary prospectus was corrected on a timely basis in the prospectus,
as then amended or supplemented.
c. Promptly after receipt by an Indemnified Person or Indemnified
Party under this Section 6 of notice of the commencement of any action or
proceeding (including any governmental action or proceeding) involving a Claim,
such Indemnified Person or Indemnified Party shall, if a Claim in respect
thereof is to be made against any indemnifying party under this Section 6,
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 control of the defense thereof with counsel
mutually satisfactory to the indemnifying party and the Indemnified Person or
the Indemnified Party, as the case may be; provided, however, that an
Indemnified Person or Indemnified Party shall have the right to retain its own
counsel with the fees and expenses of not more than one counsel for such
Indemnified Person or Indemnified Party to be paid by the indemnifying party,
if, in the reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
differing interests between such Indemnified Person or Indemnified Party and any
other party represented by such counsel in such proceeding. In the case of an
Indemnified Person, legal counsel referred to in the immediately preceding
sentence shall be selected by the Investors holding a majority in interest of
the Registrable Securities included in the Registration Statement to which the
Claim relates. The Indemnified Party or Indemnified Person shall cooperate fully
with the indemnifying party in connection with any negotiation or defense of any
such action or Claim by the indemnifying party and shall furnish to the
indemnifying party all information reasonably available to the Indemnified Party
or Indemnified Person which relates to such action or Claim. The indemnifying
party shall keep the Indemnified Party or Indemnified Person reasonably apprised
at all times as to the status of the defense or any settlement negotiations with
respect thereto. No indemnifying party shall be liable for any settlement of any
action, claim or proceeding effected without its prior written consent,
provided, however, that the indemnifying party shall not unreasonably withhold,
delay or condition its consent. No indemnifying party shall, without the prior
written consent of the Indemnified Party or Indemnified Person, consent to entry
of any judgment or enter into any settlement or other compromise which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party or Indemnified Person of a release from all liability
in respect to such Claim or litigation. Following indemnification as provided
for hereunder, the indemnifying party shall be subrogated to all rights of the
Indemnified Party or Indemnified Person with respect to all third parties, firms
or corporations relating to the matter for which indemnification has been made.
The failure to deliver written notice to the indemnifying party within a
reasonable time of
16
the commencement of any such action shall not relieve such indemnifying party of
any liability to the Indemnified Person or Indemnified Party under this Section
6, except to the extent that the indemnifying party is prejudiced in its ability
to defend such action.
d. The indemnity agreements contained herein shall be in addition to
(i) any cause of action or similar right of the Indemnified Party or Indemnified
Person against the indemnifying party or others, and (ii) any liabilities the
indemnifying party may be subject to pursuant to the law.
7. Contribution.
To the extent any indemnification by an indemnifying party is prohibited
or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided, however, that:
(i) no Person involved in the sale of Registrable Securities which Person is
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) in connection with such sale shall be entitled to contribution
from any Person involved in such sale of Registrable Securities who was not
guilty of fraudulent misrepresentation; and (ii) contribution by any seller of
Registrable Securities shall be limited in amount to the net amount of proceeds
received by such seller from the sale of such Registrable Securities pursuant to
such Registration Statement.
8. Reports Under the 1934 Act.
With a view to making available to the Investors the benefits of Rule 144,
the Company agrees to:
a. so long as an Investor owns Registrable Securities, make and keep
public information available, as those terms are understood and defined in Rule
144;
b. file with the SEC in a timely manner all reports and other
documents required of the Company under the 1933 Act and the 1934 Act so long as
the Company remains subject to such requirements and the filing of such reports
and other documents is required for the applicable provisions of Rule 144; and
c. furnish to each Investor so long as such Investor owns
Registrable Securities, promptly upon request, (i) a written statement by the
Company, if true, that it has complied with the reporting requirements of Rule
144, the 1933 Act and the 1934 Act, (ii) a copy of the most recent annual report
of the Company and such other reports and documents so filed by the Company
(other than any correspondence filed by the Company with the SEC, including,
without limitation, any confidential treatment requests), and (iii) such other
information as may be reasonably requested to permit the Investors to sell such
securities pursuant to Rule 144 without registration.
9. Assignment of Registration Rights.
The rights under this Agreement shall be automatically assignable by the
Investors to any transferee of all or any portion of such Investor's Registrable
Securities if: (i)
17
the Investor agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment; (ii) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (a) the
name and address of such transferee or assignee, and (b) the securities with
respect to which such registration rights are being transferred or assigned;
(iii) immediately following such transfer or assignment the further disposition
of such securities by the transferee or assignee is restricted under the 1933
Act and applicable state securities laws; (iv) at or before the time the Company
receives the written notice contemplated by clause (ii) of this sentence the
transferee or assignee agrees in writing with the Company to be bound by all of
the provisions contained herein; and (v) such transfer shall have been made in
accordance with the applicable requirements of the Securities Purchase
Agreement.
10. Amendment of Registration Rights.
Provisions of this Agreement may be amended and the observance thereof 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 Required
Holders. Any amendment or waiver effected in accordance with this Section 10
shall be binding upon each Investor and the Company. No such amendment shall be
effective to the extent that it applies to less than all of the holders of the
Registrable Securities. No consideration shall be offered or paid to any Person
to amend or consent to a waiver or modification of any provision of any of this
Agreement unless the same consideration also is offered to all of the parties to
this Agreement.
11. Miscellaneous.
a. A Person is deemed to be a holder of Registrable Securities
whenever such Person owns or is deemed to own of record such Registrable
Securities. If the Company receives conflicting instructions, notices or
elections from two or more Persons with respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice or
election received from the such record owner of such Registrable Securities.
b. Any notices, consents, waivers or other communications required
or permitted to be given under the terms of this Agreement must be in writing
and will be deemed to have been delivered: (i) upon receipt, when delivered
personally; (ii) upon receipt, when sent by electronic mail or facsimile
(provided confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); or (iii) one Business Day
after deposit with a nationally recognized overnight delivery service, in each
case properly addressed to the party to receive the same. The addresses and
facsimile numbers for such communications shall be:
If to the Company:
Verilink Corporation
11551 E. Arapahoe Rd., Suite 150
Centennial, Colorado 80112
18
Telephone: (303) 968-3000
Facsimile: (303) 968-3005
Attention: Chief Financial Officer
With a copy (which shall not constitute valid notice) to:
Cooley Godward LLP
380 Interlocken Crescent, Suite 900
Broomfield, CO 80021
Telephone: (720) 566-4000
Facsimile: (720) 566-4099
Attention: Brent D. Fassett, Esq.
If to Legal Counsel:
Schulte Roth & Zabel LLP
919 Third Avenue
New York, New York 10022
Telephone: (212) 756-2000
Facsimile: (212) 593-5955
Attention: Eleazer N. Klein, Esq.
If to a Buyer, to its address and facsimile number set forth on the Schedule of
Buyers attached hereto, with copies to such Buyer's representatives as set forth
on the Schedule of Buyers, or to such other address and/or facsimile number
and/or to the attention of such other Person as the recipient party has
specified by written notice given to each other party five (5) days prior to the
effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender's facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by a courier or overnight courier
service shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance
with clause (i), (ii) or (iii) above, respectively.
c. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
d. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by the internal laws of
the State of New York, without giving effect to any choice of law or conflict of
law provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of any jurisdictions
other than the State of New York. Each party hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in The City of
New York, Borough of Manhattan, for the adjudication of any dispute hereunder or
in connection herewith or with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
19
jurisdiction of any such court, that such suit, action or proceeding is brought
in an inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
If any provision of this Agreement shall be invalid or unenforceable in any
jurisdiction, such invalidity or unenforceability shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of any provision of this Agreement in any other
jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND
AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE
HEREUNDER OR IN CONNECTION HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
e. This Agreement, the other Transaction Documents (as defined in
the Securities Purchase Agreement) and the instruments referenced herein and
therein constitute the entire agreement among the parties hereto with respect to
the subject matter hereof and thereof. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein and
therein. This Agreement, the other Transaction Documents and the instruments
referenced herein and therein supersede all prior agreements and understandings
among the parties hereto with respect to the subject matter hereof and thereof.
f. Subject to the requirements of Section 9, this Agreement shall
inure to the benefit of and be binding upon the permitted successors and assigns
of each of the parties hereto.
g. The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in identical counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered to
the other party hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
i. Each party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and deliver all
such other agreements, certificates, instruments and documents, as any other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
j. All consents and other determinations required to be made by the
Investors pursuant to this Agreement shall be made, unless otherwise specified
in this Agreement, by the Required Holders.
20
k. The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent and no rules of
strict construction will be applied against any party.
l. This Agreement is intended for the benefit of the parties hereto
and their respective permitted successors and assigns, and is not for the
benefit of, nor may any provision hereof be enforced by, any other Person.
m. The obligations of each Buyer hereunder are several and not joint
with the obligations of any other Buyer, and no provision of this Agreement is
intended to confer any obligations on any Buyer vis-a-vis any other Buyer.
Nothing contained herein, and no action taken by any Buyer pursuant hereto,
shall be deemed to constitute the Buyers as a partnership, an association, a
joint venture or any other kind of entity, or create a presumption that the
Buyers are in any way acting in concert or as a group with respect to such
obligations or the transactions contemplated herein.
* * * * * *
21
IN WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
COMPANY:
VERILINK CORPORATION
By: /s/ Leigh S. Belden
---------------------------------
Name: Leigh S. Belden
Title: President and CEO
IN WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
BUYERS:
PORTSIDE GROWTH & OPPORTUNITY FUND
By: /s/ Jeffrey Smith
---------------------------------
Name: Jeffrey Smith
Title: Authorized Signatory
IN WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
BUYER:
SMITHFIELD FIDUCIARY LLC
By: /s/ Adam J. Chill
---------------------------------
Name: Adam J. Chill
Title: Authorized Signatory
IN WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
BUYER:
D.B. ZWIRN SPECIAL OPPORTUNITIES
FUND, L.P.
By: D.B. Zwirn and Co., L.P.
By: /s/ Divid Proshan
----------------------------------
Name: Divid Proshan
Title: General Counsel
IN WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
BUYER:
PROVIDENT PREMIER MASTER FUND, LTD.
By: /s/ Steven W. Winters
----------------------------------
Name: Steven W. Winters
Title: Attorney-In-Fact
IN WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
BUYER:
LANGLEY PARTNERS, L.P.
By: Langley Capital, LLC, its General
Partner
By: /s/ Jeffrey Thorp
----------------------------------
Name: Jeffrey Thorp
Title: Managing Member
IN WITNESS WHEREOF, each Buyer and the Company have caused their
respective signature page to this Registration Rights Agreement to be duly
executed as of the date first written above.
BUYER:
JGB CAPITAL L.P.
By: JGB Management Inc., as General
Partner
By: /s/ Brett Cohen
----------------------------------
Name: Brett Cohen
Title: President
SCHEDULE OF BUYERS
BUYER'S REPRESENTATIVE'S
BUYER'S ADDRESS ADDRESS
BUYER AND FACSIMILE NUMBER AND FACSIMILE NUMBER
- --------------------------- ----------------------------------- -----------------------------
PORTSIDE GROWTH & c/o Ramius Capital Group, L.L.C. Schulte Roth & Zabel LLP
OPPORTUNITY FUND 666 Third Avenue, 26th Floor 919 Third Avenue
New York, New York 10017 New York, New York 10022
Attention: Jeffrey Smith Attn: Eleazer N. Klein, Esq.
Michael Neidell Facsimile: (212) 593-5955
Facsimile: (212) 845-7999 Telephone: (212) 756-2000
Telephone: (212) 845-7955 E-mail: eleazer.klein@srz.com
E-mail: jsmith@ramius.com
mneidell@ramius.com
Residence: Cayman Islands
SMITHFIELD FIDUCIARY LLC c/o Highbridge Capital
Management, LLC
9 West 57th Street, 27th Floor
New York, New York 10019
Attention: Ari J. Storch
Adam J. Chill
Facsimile: (212) 751-0755
Telephone: (212) 287-4720
Residence: Cayman Islands
D.B. ZWIRN SPECIAL D.B. Zwirn & Co., L.P.
OPPORTUNITIES FUND, L.P. 745 Fifth Ave.
18th Floor
New York, New York
10151
Attention: Daniel B. Zwirn
Perry A. Gruss
Telephone: 646-720-9101
Facsimile: 646-344-4743
Residence: Delaware
PROVIDENT PREMIER MASTER c/o Gemini Investment Strategies,
FUND, LTD. LLC
35 Waterview Boulevard
Parsippany, NJ 07054
Attention: Steven Winters
Facsimile: (973) 404-1360
Telephone: (973) 404-1350
Residence: Cayman Islands
LANGLEY PARTNERS, L.P. c/o Langley Capital, LLC
535 Madison Avenue, 7th Floor
New York, NY 10022
Attention: Jeffrey Thorp
Facsimile: (212) 208-2971
Telephone: (212) 850-7528
Residence: Delaware
JGB CAPITAL L.P. 660 Madison, 21st floor
New York, NY 10021
Attention: Brett Cohen
Facsimile: (212) 253-4093
Telephone: (212) 355-5771
Residence: Delaware
EXHIBIT A
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
American Stock Transfer & Trust Company
Operations Center
6201 15th Avenue
Brooklyn, NY 11219
Attention: Office of General Counsel
Re: Verilink Corporation
Ladies and Gentlemen:
I am an executive officer of Verilink Corporation, a Delaware
corporation (the "COMPANY"), and I am issuing this notice to in connection with
that certain Securities Purchase Agreement (the "SECURITIES PURCHASE AGREEMENT")
entered into by and among the Company and the buyers named therein
(collectively, the "HOLDERS") pursuant to which the Company issued to the
Holders senior secured convertible notes (the "INITIAL NOTES") convertible into
the Company's common stock, $.01 par value per share (the "COMMON STOCK"),
warrants exercisable for shares of Common Stock (the "WARRANTS") and additional
investment rights exercisable for additional senior secured convertible notes of
the Company (the "ADDITIONAL NOTES", and collectively with the Initial Notes,
the "NOTES") which will be convertible into shares of Common Stock. Pursuant to
the Securities Purchase Agreement, the Company also has entered into a
Registration Rights Agreement with the Holders (the "REGISTRATION RIGHTS
AGREEMENT") pursuant to which the Company agreed, among other things, to
register the Registrable Securities (as defined in the Registration Rights
Agreement), including the shares of Common Stock issuable upon conversion of the
Notes, the shares of Common Stock issuable as interest on the Notes and the
shares of Common Stock issuable upon exercise of the Warrants, under the
Securities Act of 1933, as amended (the "1933 ACT"). In connection with the
Company's obligations under the Registration Rights Agreement, on ____________
___, 200_, the Company filed a Registration Statement on Form S-3 (File No.
333-_____________) (the "REGISTRATION STATEMENT") with the Securities and
Exchange Commission (the "SEC") relating to the Registrable Securities which
names each of the Holders as a selling stockholder thereunder.
In connection with the foregoing, I advise you that a member of the
SEC's staff has advised the Company's counsel by telephone that the SEC has
entered an order declaring the Registration Statement effective under the 1933
Act at [ENTER TIME OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and I have
no knowledge, after telephonic inquiry of a member of the SEC's staff, that any
stop order suspending its effectiveness has been issued or that any proceedings
for that purpose are pending before, or threatened by, the SEC and the
Registrable Securities are available for resale under the 1933 Act pursuant to
the Registration Statement.
We hereby authorize American Stock Transfer & Trust Company as
transfer agent to the Company, without further inquiry and unless we inform you
otherwise, upon receipt of (i) an acknowledged Conversion Notice or Exercise
Notice, as applicable, and confirmation of resale or (ii) an appropriate legal
opinion, to remove the restrictive legends from any applicable shares of the
Common Stock of the Company to be issued pursuant thereto.
Very truly yours,
[ISSUER'S COUNSEL]
By: _____________________
CC: Portside Growth and Opportunity Fund
Smithfield Fiduciary LLC
Highbridge/Zwirn Special Opportunities Fund, L.P.
Provident Premier Master Fund, Ltd.
Langley Partners, L.P.
JGB Capital L.P.
Eleazer N. Klein, Esq.
EXHIBIT B
SELLING STOCKHOLDERS
The shares of Common Stock being offered by the selling stockholders are
issuable upon conversion of the convertible notes, as principal and interest
payments on the convertible notes and upon exercise of the warrants. For
additional information regarding the issuance of those convertible notes and
warrants, see "Private Placement of Shares of Common Stock, Convertible Notes,
Warrants and Additional Investment Rights" above. We are registering the shares
of Common Stock in order to permit the selling stockholders to offer the shares
for resale from time to time. Except for the ownership of the Convertible Notes,
the Warrants and the Additional Investment Rights issued pursuant to the
Securities Purchase Agreement, the selling stockholders have not had any
material relationship with us within the past three years.
The table below lists the selling stockholders and other information
regarding the beneficial ownership of the shares of Common Stock by each of the
selling stockholders. The second column lists the number of shares of Common
Stock beneficially owned by each selling stockholder, based on its ownership of
the convertible notes and warrants, as of ________, 200_, assuming conversion of
all convertible notes and exercise of the warrants held by the selling
stockholders on that date, without regard to any limitations on conversions or
exercise.
The third column lists the shares of Common Stock being offered by this
prospectus by each selling Stockholder.
In accordance with the terms of a registration rights agreement among the
Company and the selling stockholders, this prospectus generally covers the
resale of at least 150% of the sum of (i) the number of shares of Common Stock
issuable as interest on the convertible notes based upon certain assumptions,
(ii) the number of shares of Common Stock issuable upon conversion of the
convertible notes as of the trading day immediately preceding the date the
registration statement is initially filed with the SEC and (iii) the number of
shares of Common Stock issuable upon exercise of the related warrants as of the
trading day immediately preceding the date the registration statement is
initially filed with the SEC. Because the conversion price of the convertible
notes, the interest payable on the convertible notes may be adjusted and the
exercise price of the warrants may be adjusted, the number of shares that will
actually be issued may be more or less than the number of shares being offered
by this prospectus. The fourth column assumes the sale of all of the shares
offered by the selling stockholders pursuant to this prospectus.
Under the terms of the convertible notes and the warrants, a selling
stockholder may not convert the convertible notes or exercise the warrants to
the extent such conversion or exercise would cause such selling stockholder,
together with its affiliates, to beneficially own a number of shares of Common
Stock which would exceed 4.99% (or if the selling stockholder gives notice to
such effect in accordance with the terms of the notes or warrants, 9.99%) of our
then outstanding shares of Common Stock following such conversion or exercise,
excluding for purposes of such determination shares of Common Stock issuable
upon conversion of the convertible notes that have not been converted and upon
exercise of the warrants and additional
investment rights that have not been exercised. The number of shares in the
second column does not reflect this limitation. The selling stockholders may
sell all, some or none of their shares in this offering. See "Plan of
Distribution."
MAXIMUM NUMBER OF SHARES
NUMBER OF SHARES OWNED TO BE SOLD PURSUANT TO THIS NUMBER OF SHARES OWNED
NAME OF SELLING STOCKHOLDER PRIOR TO OFFERING PROSPECTUS AFTER OFFERING
- ---------------------------------- ---------------------- --------------------------- ----------------------
Portside Growth & Opportunity Fund 0
Smithfield Fiduciary LLC
D.B. Zwirn Special
Opportunities Fund, L.P.
Provident Premier Master
Fund, Ltd.
Langley Partners, L.P.
JGB Capital L.P.
PLAN OF DISTRIBUTION
We are registering the shares of Common Stock issuable upon conversion of
the convertible notes, upon exercise of the warrants and in payment of interest
on the convertible notes to permit the resale of these shares of Common Stock by
the holders of the convertible notes and warrants from time to time after the
date of this prospectus. We will not receive any of the proceeds from the sale
by the selling stockholders of the shares of Common Stock. We will bear all fees
and expenses incident to our obligation to register the shares of Common Stock.
The selling stockholders may sell all or a portion of the shares of Common
Stock beneficially owned by them and offered hereby from time to time directly
or through one or more underwriters, broker-dealers or agents. If the shares of
Common Stock are sold through underwriters or broker-dealers, the selling
stockholders will be responsible for underwriting discounts or commissions or
agent's commissions. The shares of Common Stock may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time of the
sale, at varying prices determined at the time of sale, or at negotiated prices.
These sales may be effected in transactions, which may involve crosses or block
transactions,
- on any national securities exchange or quotation service on which
the securities may be listed or quoted at the time of sale;
- in the over-the-counter market;
- in transactions otherwise than on these exchanges or systems or in
the over-the-counter market;
- through the writing of options, whether such options are listed on
an options exchange or otherwise;
- ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- block trades in which the broker-dealer will attempt to sell the
shares as agent but may position and resell a portion of the block
as principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
- an exchange distribution in accordance with the rules of the
applicable exchange;
- privately negotiated transactions;
- short sales;
- sales pursuant to Rule 144;
1
- broker-dealers may agree with the selling securityholders to sell a
specified number of such shares at a stipulated price per share;
- a combination of any such methods of sale; and
- any other method permitted pursuant to applicable law.
If the selling stockholders effect such transactions by selling shares of
Common Stock to or through underwriters, broker-dealers or agents, such
underwriters, broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions from the selling stockholders or
commissions from purchasers of the shares of Common Stock for whom they may act
as agent or to whom they may sell as principal (which discounts, concessions or
commissions as to particular underwriters, broker-dealers or agents may be in
excess of those customary in the types of transactions involved). In connection
with sales of the shares of Common Stock or otherwise, the selling stockholders
may enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the shares of Common Stock in the course of hedging in
positions they assume. The selling stockholders may also sell shares of Common
Stock short and deliver shares of Common Stock covered by this prospectus to
close out short positions and to return borrowed shares in connection with such
short sales. The selling stockholders may also loan or pledge shares of Common
Stock to broker-dealers that in turn may sell such shares.
The selling stockholders may pledge or grant a security interest in some
or all of the convertible notes, warrants or shares of Common Stock owned by
them and, if they default in the performance of their secured obligations, the
pledgees or secured parties may offer and sell the shares of Common Stock from
time to time pursuant to this prospectus or any amendment to this prospectus
under Rule 424(b)(3) or other applicable provision of the Securities Act of
1933, as amended, amending, if necessary, the list of selling stockholders to
include the pledgee, transferee or other successors in interest as selling
stockholders under this prospectus. The selling stockholders also may transfer
and donate the shares of Common Stock in other circumstances in which case the
transferees, donees, pledgees or other successors in interest will be the
selling beneficial owners for purposes of this prospectus.
The selling stockholders and any broker-dealer participating in the
distribution of the shares of Common Stock may be deemed to be "underwriters"
within the meaning of the Securities Act, and any commission paid, or any
discounts or concessions allowed to, any such broker-dealer may be deemed to be
underwriting commissions or discounts under the Securities Act. At the time a
particular offering of the shares of Common Stock is made, a prospectus
supplement, if required, will be distributed which will set forth the aggregate
amount of shares of Common Stock being offered and the terms of the offering,
including the name or names of any broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling
stockholders and any discounts, commissions or concessions allowed or reallowed
or paid to broker-dealers.
Under the securities laws of some states, the shares of Common Stock may
be sold in such states only through registered or licensed brokers or dealers.
In addition, in some states the shares of Common Stock may not be sold unless
such shares have been registered or qualified
2
for sale in such state or an exemption from registration or qualification is
available and is complied with.
There can be no assurance that any selling stockholder will sell any or
all of the shares of Common Stock registered pursuant to the shelf registration
statement, of which this prospectus forms a part.
The selling stockholders and any other person participating in such
distribution will be subject to applicable provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder, including,
without limitation, Regulation M of the Exchange Act, which may limit the timing
of purchases and sales of any of the shares of Common Stock by the selling
stockholders and any other participating person. Regulation M may also restrict
the ability of any person engaged in the distribution of the shares of Common
Stock to engage in market-making activities with respect to the shares of Common
Stock. All of the foregoing may affect the marketability of the shares of Common
Stock and the ability of any person or entity to engage in market-making
activities with respect to the shares of Common Stock.
We will pay all expenses of the registration of the shares of Common Stock
pursuant to the registration rights agreement; provided, however, that a selling
stockholder will pay all underwriting discounts and selling commissions, if any.
We will indemnify the selling stockholders against liabilities, including some
liabilities under the Securities Act, in accordance with the registration rights
agreements, or the selling stockholders will be entitled to contribution. We may
be indemnified by the selling stockholders against civil liabilities, including
liabilities under the Securities Act, that may arise from any written
information furnished to us by the selling stockholder specifically for use in
this prospectus, in accordance with the related registration rights agreement,
or we may be entitled to contribution.
Once sold under the registration statement, of which this prospectus forms
a part, the shares of Common Stock will be freely tradable in the hands of
persons other than our affiliates.
3