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Exhibit 3.1
SCHEDULE I
REGISTRATION RIGHTS PROVISIONS
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1. Definitions
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Terms defined in the foregoing Second Amendment are used as therein
defined unless otherwise defined in this Schedule I. In addition, as used in
this Schedule, the following capitalized terms shall have the following
meanings:
NVIC SHARES: A voting common share of NVIC with par value of
$.01 per share.
EFFECTIVE DATE: The date the Shelf Registration is declared
effective by the SEC.
INDEMNIFIED HOLDER: See Section 6(a).
NASD: National Association of Securities Dealers, Inc.
PERSON: An individual, partnership, limited liability company,
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
PROSPECTUS: The prospectus included in any Registration
Statement, as amended or supplemented, with respect to the terms of the offering
of any portion of the Registrable Securities covered by the Registration
Statement and by all other amendments and supplements to the prospectus,
including post-effective amendments and all material incorporated by reference
in such prospectus.
REGISTRABLE SECURITIES: The shares of Settlement Stock and
Option Stock provided that any such share ceases to be a Registrable Security
when it may be distributed to the public pursuant to Rule 144 (or any similar
provisions then in force) promulgated under the 1933 Act or when the certificate
therefor ceases to contain the restricted stock legend specified in Section 7(g)
of the Second Amendment or the equivalent thereof.
REGISTRATION EXPENSES. See Section 5.
REGISTRATION STATEMENT: Any registration statement of NVIC
which covers any of the Registrable Securities pursuant to the provisions of
this Schedule, including the Prospectus, amendments to such Registration
Statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in such Registration Statement.
SHELF REGISTRATION: See Section 3.
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STOCKHOLDERS: Frank Manchak, Jr.
2. Securities Subject to this Schedule
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The benefits of this Schedule are limited to the Registrable
Securities, whether held by the Stockholders or a subsequent holder thereof.
3. Shelf Registration: Timing of Filing, Effectiveness and Period of
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Usability
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Subject to the provisions of Section 4 hereof, NVIC shall file within
fifteen (15) business days hereof and shall use its commercially reasonable best
efforts to cause to be declared effective as soon as practicable a "shelf"
Registration Statement (a "Shelf Registration") pursuant to Rule 415 (or similar
rule that may be adopted by the SEC) under the 1933 Act for all the Registrable
Securities and such other NVIC Shares as NVIC deems appropriate, which form
shall be available for the sale of the Registrable Securities for cash in
accordance with the intended method or methods of distribution thereof.
NVIC agrees to use its commercially reasonable best efforts to keep the
Registration Statement continuously effective and usable for resale of
Registrable Securities until 790 days (the "Effectiveness Period") from the
Vesting Date or such shorter period which will terminate when all the
Registrable Securities covered by such Registration Statement have been sold
pursuant to such Registration Statement, may be sold pursuant to Rule 144, or
are freely tradeable.
Notwithstanding the foregoing, NVIC shall have the right (i) to defer
for a period of up to 90 days the request for acceleration of effectiveness, or
(ii) after effectiveness, to suspend effectiveness of the Registration Statement
for periods of up to 90 days if, in the good faith judgment of the board of
directors of NVIC or upon the advice of counsel to NVIC, such delay in
requesting acceleration of effectiveness or such suspension of effectiveness (A)
is necessary in light of the existence of material non-public information
(financial or otherwise) concerning NVIC and/or any other entity in which NVIC
has, or is proposing to acquire, an equity interest, or (B) otherwise is in the
best interest of NVIC and its shareholders. Notwithstanding any provision herein
to the contrary, the aggregate number of days during any given twelve month
period in which the effectiveness of the Registration Statement shall be
suspended at the request of NVIC shall not exceed one hundred twenty (120) days.
NVIC will give each of the Stockholders prompt written notice of any decision to
defer or suspend effectiveness of the Registration Statement.
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In connection with the registration of NVIC Shares as provided in this
Schedule, NVIC shall be entitled to include in the Registration Statement any
other securities of NVIC (whether to be offered by NVIC or other security
holders of NVIC and regardless of the proposed terms of transfer or sale of such
other securities).
4. Registration Procedures
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In connection with NVIC's obligation to file Registration Statements as
provided in Section 3 hereof, but subject to the terms, conditions and
limitations thereof, NVIC will as expeditiously as possible:
(a) prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement, and such
supplements to the Prospectus, as may be required by the rules,
regulations or instructions applicable to the registration form
utilized by NVIC under the 1933 Act or rules and regulations thereunder
for shelf registration or otherwise necessary to keep the Registration
Statement effective for the applicable period and cause the Prospectus
as so supplemented to be filed pursuant to Rule 424 under the 1933 Act;
and comply with the provisions of the 1933 Act with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(b) notify the Stockholders and the holders of Registrable
Securities promptly, and confirm such advice in writing,
(1) when the Registration Statement or the Prospectus
included therein, or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to
the Registration Statement or any post-effective amendment,
when the same has become effective,
(2) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose; and
(3) of the receipt by NVIC of any notification with
respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
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(c) make every commercially reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the
Registration Statement at the earliest possible date;
(d) furnish, without charge, to Stockholders and each selling
holder of Registrable Securities, at least one conformed copy of the
Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (but excluding
exhibits incorporated by reference);
(e) deliver to Stockholders and each selling holder of
Registrable Securities without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons may reasonably request; NVIC consents to the
use of the Prospectus or any amendment or supplement thereto by each
Stockholder and the selling holders of Registrable Securities in
connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto;
(f) cooperate with Stockholders and the selling holders of
Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
and not bearing any restricted stock legends;
(g) use its commercially reasonable best efforts to cause the
Registrable Securities covered by the Registration Statement to be
registered with or approved by governmental agencies or authorities
within the United States under states' securities or "Blue Sky" laws as
may be necessary to enable the seller or sellers thereof to consummate
the disposition of such Registrable Securities in such jurisdictions as
the sellers may specify in response to inquiries to be made by NVIC,
provided that NVIC will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to
take any action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject;
(h) if any event shall occur as a result of which it is
necessary, in the opinion of NVIC, to amend or supplement the
Prospectus in order to make the Prospectus not misleading in the light
of the circumstances existing at the time it is delivered to a
purchaser, prepare a supplement or post-effective amendment to the
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as
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thereafter delivered to the purchasers of the Registrable Securities,
the Prospectus will not contain an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein not misleading;
(i) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make generally
available to its security holders an earnings statement satisfying the
provisions of Section 11(a) of the 1933 Act (in accordance with Rule
158 thereunder or otherwise), no later than 60 days after the end of
the 12-month period (or 120 days, if such period is a fiscal year)
beginning with the first month of NVIC's first fiscal quarter
commencing after the Effective Date, which statements shall cover said
12-month period;
(j) if at any time an event of the kind described in Section
4(h) shall occur, promptly notify the Stockholders and the holders of
Registrable Securities that the use of the Prospectus must be
discontinued;
(k) cause the NVIC Shares issued to the Stockholders to be
listed on the NASD's automated quotation system.
Each selling holder of Registrable Securities as to which any
registration is being effected agrees, as a condition to the registration
obligations with respect to such holder provided herein, to furnish to NVIC such
information regarding the distribution of such securities as NVIC may from time
to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from NVIC described in
paragraph 4(j), such holder will forthwith discontinue disposition of
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 4(h) hereof, or until
it is advised in writing by NVIC (which notice NVIC shall give as promptly as
possible), that the use of the Prospectus may be resumed, and has received
copies of any additional or supplemental filings which are incorporated by
reference in the Prospectus, and, if so directed by NVIC, such holder will
deliver to NVIC (at NVIC's expense) all copies, other than permanent file copies
then in such holder's possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice.
5. Registration Expenses
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(a) All expenses incident to NVIC's performance of or compliance with
this Schedule, including without limitation:
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(2) all registration, filing and listing fees;
(3) fees and expenses of compliance with securities or blue
sky laws (including reasonable fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities
under the laws of such jurisdictions as the holders of a majority in
principal amount of the Registrable Securities being sold may
reasonably designate);
(4) printing, messenger, telephone and delivery expenses;
(5) fees and disbursements of counsel for NVIC;
(6) fees and disbursements of all independent certified public
accountants of NVIC (including the expenses of any special audit
necessary to satisfy the requirements of the 1933 Act and any "cold
comfort" letters required by or incident to such performance);
(7) securities acts liability insurance if NVIC so desires;
(8) fees and expenses of other Persons retained by NVIC; and
(9) fees and expenses associated with any NASD filing required
to be made in connection with the Registration Statement.
(all such expenses being herein called "Registration Expenses") will be borne by
NVIC, regardless of whether the Registration Statement becomes effective.
NVIC will, in any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit, the fees and
expenses incurred in connection with the listing of the securities to be
registered on a securities exchange or on the NASD's automated quotation system,
rating agency fees and the fees and expenses of any Person, including special
experts, retained by NVIC.
6. Indemnification and Contribution
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(a) INDEMNIFICATION BY NVIC. NVIC agrees to indemnify and hold harmless
each holder of Registrable Securities, its officers, directors, employees and
agents and each Person who controls such holder within the meaning of either
Section 15 of the 1933 Act or Section 20 of the Exchange Act (each such person
being sometimes hereinafter referred to as an "Indemnified Holder") from and
against all losses, claims, damages,
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liabilities and expenses (including reasonable costs of investigation and legal
expenses) arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or
Prospectus or in any amendment or supplement thereto or in any preliminary
prospectus, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any such untrue
statement or omission or allegation thereof based upon information furnished in
writing to NVIC by such holder expressly for use therein. This indemnity will be
in addition to any liability which NVIC may otherwise have. NVIC will also
indemnify underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their officers and
directors and each Person who controls such Persons (within the meaning of
Section 15 of the 1933 Act or Section 20 of the Exchange Act) to the same extent
as provided above with respect to the indemnification of the holders of
Registrable Securities.
If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or asserted against any Indemnified Holder in
respect of which indemnity may be sought from NVIC, such Indemnified Holder
shall promptly notify NVIC in writing (but the omission to so notify NVIC shall
not relieve it of any liability that it may have against any Indemnified Holder
otherwise than under this subsection), and NVIC shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
Indemnified Holder and the payment of all expenses. Indemnified Holders shall
have the right, collectively, to employ their own counsel in any such action and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be the expense of the Indemnified Holders unless (a) NVIC has agreed to
pay such fees and expenses or (b) NVIC shall have failed to assume the defense
of such action or proceeding and have failed to employ counsel reasonably
satisfactory to the Indemnified Holders in any such action or proceeding or (c)
the named parties to any such action or proceeding (including any impleaded
parties) include the Indemnified Holders and NVIC, and the Indemnified Holders
shall have been advised by counsel that there may be one or more legal defenses
available to the Indemnified Holders which are different from or additional to
those available to NVIC (in which case, if the Indemnified Holders notify NVIC
in writing that they elect to employ their own counsel at the expense of NVIC,
NVIC shall not have the right to assume the defense of such action or proceeding
on behalf of the Indemnified Holders, it being understood, however, that NVIC
shall not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
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for the reasonable fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for the Indemnified
Holders, which firm shall be designated in writing by the Indemnified Holders
representing at least a majority of the aggregate principal amount of the
Registrable Securities). Any such fees and expenses payable by NVIC shall be
paid to the Indemnified Holders entitled thereto as incurred by the Indemnified
Holders. NVIC shall not be liable for any settlement of any such action or
proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such action or
proceeding, NVIC agrees to indemnify and hold harmless the Indemnified Holders
from and against any loss or liability by reason of such settlement or judgment.
(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES. Each holder of
Registrable Securities agrees to indemnify and hold harmless NVIC, its
respective directors and officers and each Person, if any, who controls NVIC
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from NVIC to such
holder, but only with respect to information relating to such holder furnished
in writing by such holder expressly for use in any Registration Statement or
Prospectus, or any amendment or supplement thereto, or any preliminary
prospectus. In case any action or proceeding shall be brought against NVIC or
its respective directors or officers or any such controlling person, in respect
of which indemnity may be sought against a holder of Registrable Securities,
such holder shall have the rights and duties given NVIC, and NVIC or its
respective directors or officers or such controlling person shall have the
rights and duties given to each holder by the preceding paragraph. Each holder
of Registrable Securities will also indemnify underwriters, selling brokers,
dealer managers and similar securities industry professionals participating in
the distribution, their officers and directors and each Person who controls such
Persons (within the meaning of Section 15 of the 1933 Act or Section 20 of the
Exchange Act) to the same extent as provided above with respect to the
indemnification of NVIC. NVIC and each holder of Registrable Securities shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to information
so furnished in writing by such Persons specifically for inclusion in any
Prospectus or Registration Statement.
(c) CONTRIBUTION. If the indemnification provided for in this Section 6
is unavailable to an indemnified party under Section 6(a) or Section 6(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities or expenses referred to therein, then
each applicable indemnifying party, in lieu of indemnifying
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such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses, in such proportion as is appropriate to reflect the relative fault of
NVIC on the one hand and each holder of Registrable Securities on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, or liabilities, as well as the 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 NVIC or the particular holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. NVIC acknowledges that the holders of the
Registrable Securities are not involved in any manner in the business of NVIC
and, accordingly, have limited knowledge of and access to information about the
business of NVIC. NVIC and the holders of Registrable Securities agree that it
would not be just and equitable if contributions pursuant to this subsection (c)
were to be determined by pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in the first sentence of this subsection (c). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (c) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigation or defending against any action or claim
that is the subject of this subsection (c). Notwithstanding the provisions of
this subsection (c), each holder of Registrable Securities shall not be required
to contribute any amount in excess of the amount by which the Difference exceeds
the amount of any damages that such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the 1933 Act), shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
7. Rule 144
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For so long as NVIC is subject to the reporting requirements of Section
13 or 15 of the Exchange Act, NVIC covenants that it will file the reports
required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC thereunder.
8. Miscellaneous
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(a) NO INCONSISTENT AGREEMENTS. NVIC will not on or after the date of
this Schedule enter into any agreement with respect to its securities which is
inconsistent with the rights granted
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to the holders of Registrable Securities in this Schedule or otherwise conflicts
with the provisions hereof. The rights granted to the holders of Registrable
Securities hereunder do not in any way conflict with and are not inconsistent
with the rights granted to the holders of NVIC's securities under any such
agreements.
(b) AMENDMENTS AND WAIVERS. The provisions of this Schedule, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless NVIC has obtained the written consent of holders of a majority of
the Registrable Securities. Notwithstanding the foregoing, a waiver or consent
to departure from the provision hereof that relates exclusively to the rights of
holders of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other holders of Registrable Securities may be given by the holders of
a majority of the Registrable Securities being sold.
(c) NOTICES. All notices, requests, consents and other communications
hereunder shall be in writing, shall be mailed by first-class registered or
certified airmail, telecopier, or nationally recognized overnight express
courier postage prepaid, and shall be deemed given when so mailed or if
telecopied, when receipt is acknowledged, and shall be delivered as addressed as
follows:
(1) if to a Stockholder, at the most current address given by
the Stockholder to NVIC in accordance with the provisions of this
Section 8(c);
(2) if to a holder of Registrable Securities, at its address
of record as indicated on the books of the transfer agent and registrar
for the Registrable Securities; and
(3) if to NVIC, initially at its address set forth in the
Settlement Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 8(c).
(d) SUCCESSORS AND ASSIGNS. This Schedule shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
holders of Registrable Securities.
(e) HEADINGS. The headings in this Schedule are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
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(f) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
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