Exhibit 4.3
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of the 28 day
of April, 1992 by and between Home Shopping Network, Inc., a Delaware
corporation ("HSN"), and The National Registry Inc., a Delaware corporation
("NRI").
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Series A Preferred Stock; Related Transactions.
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1.1 Purchase and Sale of Series A Preferred Stock. Subject to the terms and
conditions of this Agreement, HSN agrees to purchase and NRI agrees to issue and
sell to HSN 100,000 shares of Series A Preferred Stock, $.01 par value per
share, of NRI (the "Series A Preferred Stock").
1.2 Terms of Series A Preferred Stock. Pursuant to Article Fourth of its
Amended Certificate of Incorporation, the NRI Board of Directors shall adopt on
or before the Closing (as defined below) resolutions adopting the designation of
preferences in the form attached hereto as Schedule 1.2 (the "Board
Resolutions") setting forth the rights, privileges and preferences governing the
Series A Preferred Stock and shall cause NRI to file on or prior to the Closing
a certificate of designations with the Secretary of State of the State of
Delaware setting forth a copy of such resolutions. As described in the Board
Resolutions, each share of Series A Preferred Stock shall be convertible into
sixty shares of common stock, $.01 par value per share, of NRI (such underlying
shares referred to herein as the "Common Stock") and shall have a liquidation
preference of $100.00 per share.
1.3 The Closing. The purchase and sale of the Series A Preferred Stock
shall take place at the offices of HSN in St. Petersburg, Florida at such time
as HSN and NRI shall mutually agree (which place and time are designated as the
"Closing"). At the Closing, NRI shall deliver to HSN a certificate representing
the Series A Preferred Stock against payment of the Purchase Price (as defined
below).
1.4 Purchase Price. As consideration for the issuance and sale of the
Series A Preferred Stock, HSN shall pay to NRI the sum of $5.0 million (the
"Cash Purchase Price") to be paid to NRI at the Closing in immediately available
funds. HSN also shall provide to NRI the Services (as hereinafter defined)
valued at $5.0 million, as set forth in Section 1.5 hereof. Notwithstanding
anything to the contrary herein, and irrespective of whether HSN provides any
Services to NRI, the Series A Preferred Stock (including the Common Stock
issuable upon conversion thereof), upon payment of the Cash Purchase Price to
NRI, shall be fully paid and nonassessable.
1.5 HSN Services. From and after the Closing and in addition to the payment
of the Cash Purchase Price, HSN shall provide NRI with certain services valued
at $5.0 million which shall consist generally of providing certain equipment to
NRI; undertaking certain services for NRI; providing advertising and creative
services to NRI; renting space to NRI; providing product development services to
NRI; and providing labor to NRI (the "Services"). Among the specific Services to
be provided by HSN are the development and production of an infomercial
regarding NRI's "InTouch" product and the lease of certain office space to NRI.
The Services to be provided by HSN shall be selected by NRI in its sole
discretion from time to time following the Closing and shall be utilized solely
in connection with NRI's automated fingerprint identification system and all
applications thereof. The value allocated to each of the Services to be made
available by HSN shall be mutually agreed upon by NRI and HSN pursuant to an
agreement to be entered into by such parties promptly after the date hereof and
the value of certain of the Services shall be based substantially upon the
preliminary price list tentatively agreed to for certain of such Services set
forth in Schedule 1.5 attached hereto, as such price list may be amended,
revised, or superseded after the date hereof pursuant to certain agreements to
be entered into between the parties hereto; provided, however, that NRI's
failure to utilize all or any portion of the Services shall not constitute a
failure of consideration for the purchase of the Series A Preferred Stock and
under no circumstances shall NRI be entitled to a reimbursement in cash for the
value of the Services not utilized by NRI.
1.6 Termination of Services HSN's obligation to provide Services shall
terminate either (i) in the event that J. Xxxxxxx Xxxxxxxxx and members of his
family (including all lineal descendants and their spouses) in the aggregate
cease to control, directly or indirectly, more than 20% of the total voting
power entitled to vote in the election of directors of NRI or (ii) upon NRI's
utilization of an aggregate of $5.0 million worth of Services. HSN's obligation
to provide the Services shall be subject to such additional terms and conditions
as may be agreed to by the parties from time to time and reflected in written
agreements which shall be appended hereto and incorporated herein by reference.
1.7 Additional HSN Efforts. HSN agrees to (i) consider the purchase and
sale of "InTouch" and "MOMMY and ME" products developed by NRI on Home Shopping
Channel and (ii) to use its best efforts to enable NRI to sell "InTouch"
products to the State of Florida and such other test sites as the parties may
agree upon.
1.8 NRI Board Representation. As soon as possible after the Closing and in
any event no later than its annual meeting of stockholders, NRI shall use its
best efforts to cause the following individuals to be elected to NRI's Board of
Directors: Xxx X. Xxxxx, Chairman and Chief Executive Officer of HSN; Xxx X.
Xxxxxxx, Executive Vice President and Chief Financial Officer of HSN; and Xxxxx
Xxxxxx, Chairman of Precision Systems, Inc. NRI shall use its best efforts to
ensure that these three persons or three other persons designated by HSN shall
remain Directors of NRI at least so long as HSN's ownership of NRI's common
stock (including the Common Stock) equals or exceeds 10% of NRI's total common
stock (assuming the conversion of all of the Series A Preferred Stock into
Common Stock).
1.9 Irrevocable Proxy. The Series A Preferred Stock and, when issued, the
Common Stock, and any other voting securities of NRI acquired by HSN shall be
subject to an irrevocable proxy in favor of J. Xxxxxxx Xxxxxxxxx, the terms of
which are set forth in Schedule 1.9 to this Agreement. Pursuant to Delaware
state law, such irrevocable proxy shall be deemed to be coupled with an interest
sufficient in law to support an irrevocable power and shall be limited to a term
of ten years.
2. Representations and Warranties of NRI.
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NRI hereby represents and warrants to HSN as follows:
2.1 Organization; Good Standing; Qualification. NRI is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, has all requisite corporate power and authority to own and operate its
properties and assets and to carry on its business as now conducted, to execute
and deliver this Agreement, to issue and sell the Series A Preferred Stock and,
upon the conversion of the Series A Preferred Stock, to issue the Common Stock,
and to carry out the provisions of this Agreement.
2.2 Authorization. All corporate action on the part of NRI, its officers,
directors, and stockholders necessary for the authorization, execution and
delivery of this Agreement, the performance of all obligations of NRI hereunder
at the Closing, and the authorization, issuance (or reservation for issuance, as
applicable), sale, and delivery of the Series A Preferred Stock being sold
hereunder and the Common Stock to be issued upon the conversion of the Series A
Preferred Stock has been taken or will be taken prior to the Closing, and this
Agreement constitutes a valid and legally binding obligation of NRI, enforceable
in accordance with its terms except (a) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement of creditors' rights generally, (b) as limited by laws
relating to the availability of specific performance, injunctive relief, or
other equitable remedies, and (c) to the extent any indemnification provision
contained in this Agreement may be limited by applicable federal or state laws.
2.3 Valid Issuance of Preferred and Common Stock. The Series A Preferred
Stock being purchased by HSN hereunder, when issued, sold and delivered in
accordance with the terms of this Agreement for the Cash Purchase Price, will be
duly
and validly issued, fully paid, non-assessable, not subject to any preemptive
rights, and free and clear of all liens, claims and encumbrances. The Common
Stock has been duly and validly reserved for issuance and, upon issuance in
accordance with the terms of the Board Resolutions, upon conversion of the
Series A Preferred Stock, will be duly and validly issued, fully paid,
non-assessable, not subject to any preemptive rights (other than pursuant to
Section 5 hereof), and free and clear of all liens, claims and encumbrances.
2.4 Governmental Consents. To the best of NRI's knowledge, no consent,
approval, qualification, order or authorization of, or filing with, any local,
state, or federal governmental authority is required on the part of NRI in
connection with NRI's valid execution, delivery, or performance of this
Agreement, the offer, sale or issuance of the Series A Preferred Stock by NRI,
or the issuance of the Common Stock upon conversion of the Series A Preferred
Stock, except for filings that shall be made at or prior to Closing.
2.5 Capitalization and Voting Rights. The authorized capital stock of NRI
consists, or will consist on or prior to the Closing, of:
(a) Preferred Stock. 1,000,000 shares of preferred stock, $.01 par
value per share, 100,000 shares of which have been designated Series A
Preferred Stock, and all of which such shares of Series A Preferred Stock
shall be sold to HSN pursuant to this Agreement. The rights, privileges and
preferences of the Series A Preferred Stock will be as set forth in the
Board Resolutions.
(b) Common Stock. 25,000,000 shares of common stock, $.01 par value
per share, of which 15,150,000 shares are issued and outstanding (after
taking into account 150,000 shares of common stock of NRI to be issued to
Cogent Systems, Inc. in connection with the execution by it and NRI of a
license agreement). In addition, NRI has granted options to acquire up to
300,000 shares of common stock of NRI at nominal exercise prices to certain
employees of NRI pursuant to a stock option plan whereby NRI intends to
reserve for issuance up to 1,500,000 shares of common stock of NRI (the
"Employee Options"), and has issued to Cogent Systems, Inc. a warrant to
purchase 150,000 shares of common stock of NRI at a nominal exercise price
(the "Cogent Warrant").
(c) The individual stockholders who directly own of record more than
one percent of the outstanding shares of common stock of NRI and the number
of shares directly owned of record by each such stockholder are as
specified in Schedule 2.5(c) hereto.
2.6 Subsidiaries. Other than with respect to shares of Hunter Industrial
Facilities, Inc. ("HIFI") which have been pledged to NRI, as described in NRI's
Form 10-K, NRI does not own or control, directly or indirectly, any interest in
any other corporation, association, or other business entity.
2.7 Contracts and Other Commitments. Except as set forth in Schedule 2.13
to this Agreement, NRI does not have any contract, agreement, lease or
commitment other than (a) contracts for the purchase of supplies and services
that were entered into in the ordinary course of business and that do not
involve more than $50,000, and do not extend for more than one (1) year beyond
the date hereof, (b) sales contracts entered into in the ordinary course of
business, and (c) contracts terminable at will by NRI on no more than thirty
(30) days' notice without cost or liability by NRI and that do not involve any
employment or consulting arrangement and are not material to the conduct of
NRI's business. For the purpose of this paragraph, employment and consulting
contracts, license agreements and any other agreements relating to the
acquisition or disposition of NRI's technology shall not be considered to be
contracts entered into in the ordinary course of business.
2.8 Related-Party Transactions. Except for a promissory note in the initial
principal amount of $4,000,000 due December 31, 1993 delivered to NRI by J.
Xxxxxxx Xxxxxxxxx as of December 31, 1991, no employee, officer, subcontractor,
consultant, or director of NRI or member of his or her immediate family is
indebted to NRI, nor is NRI indebted (or committed to make loans or extend or
guarantee credit) to any such person, other than amounts owed to certain
subcontractors, consultants and officers of NRI for accrued payments due and
out-of-pocket expenses and advances. To the best of NRI's knowledge, none of
such persons has any direct or indirect ownership interest in any firm or
corporation with which NRI is affiliated or with which NRI has a business
relationship (other than HSN and HIFI), or any firm or corporation that competes
with NRI, except that employees, officers, subcontractors, consultants, or
directors of NRI and members of their immediate families own stock in publicly
traded companies that may compete with NRI. To the best of NRI's knowledge, no
officer or director or any member of their immediate families is, directly or
indirectly, interested in any material contract with NRI.
2.9 Registration Rights. Except for registration rights granted in
connection with the Employee Options, the Cogent Warrant and as provided in
Section 4 of this Agreement, NRI is not obligated to register under the
Securities Act of 1933, as amended (the "Securities Act"), any of its presently
outstanding securities or any of its securities that may subsequently be issued.
2.10 Permits. To the best of its knowledge, NRI has all franchises,
permits, licenses, and any similar authority from governmental entities or
regulatory agencies necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, properties, prospects, or financial condition of NRI, and believes it
can obtain, without undue burden or expense, any similar authority for the
conduct of its business as planned to be conducted. To the best of its
knowledge, NRI is not in default in any material respect under any of such
franchises, permits, licenses or other similar authority.
2.11 Compliance With Other Instruments. NRI is not in violation or default
of any provision of its Amended Certificate of Incorporation, Bylaws, or any
mortgage, indenture, agreement, instrument, or contract to which it is a party
or by which it is bound
or, to the best of its knowledge, of any federal or state judgment, order, writ,
decree, statute, rule or regulation applicable to NRI. The execution, delivery,
and performance by NRI of this Agreement and the consummation of the
transactions contemplated hereby will not result in any such violation or be in
material conflict with or constitute, with or without the passage of time or
giving of notice, either a material default under any such provision or an event
that results in the creation of any material lien, charge, or encumbrance upon
any assets of NRI or the suspension, revocation, impairment, forfeiture, or
non-renewal of any material permit, license, authorization, or approval
applicable to NRI, its business or operations, or any of its assets or
properties.
2.12 Litigation. There is no action, suit, proceeding, investigation,
arbitration, claim or counterclaim pending against or currently threatened or
affecting NRI in any court or before any arbitration panel or before or by any
federal, state or other governmental department or agency. Except as set forth
in Schedule 2.12, NRI has no knowledge of any facts which might reasonably be
believed to be a basis for any such action, suit, proceeding, investigation,
arbitration, claim, or counterclaim. Neither NRI nor its properties is subject
to or directly affected by any order, judgment, decree or ruling in the nature
of an injunctive or consent order or order for specific performance of any court
or governmental agency, other than those affecting the public generally. There
are no existing material violations of federal, state or local laws, ordinances,
rules, regulations or orders by NRI or materially affecting the business or
property of NRI or the possession, use, occupancy or operation of NRI's
facilities. There is no action, suit, or proceeding by NRI currently pending or
that NRI currently intends to initiate.
2.13 Disclosure. NRI has provided HSN with the documents listed in Schedule
2.13 hereto. No such document contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading.
2.14 License Agreement. Upon the execution of this Agreement and the
payment of the Cash Purchase Price in accordance with the terms hereof, the
License Agreement dated as of April 1, 1992 between NRI and Cogent Systems, Inc.
will be a valid, binding and enforceable obligation of NRI and, to the best of
NRI's knowledge, Cogent Systems, Inc. and the fingerprint identification
technology licensed to NRI pursuant to such License Agreement provides NRI with
all of the fingerprint identification technology intellectual property rights
necessary to make, use and sell the "MOMMY and ME" product and the "InTouch"
product as currently developed in the United States and abroad and to develop,
make and sell other fingerprint-based personal identity verification systems,
and fingerprint encoding and database systems.
2.15 Offering. Subject in part to the truth and accuracy of HSN's
representations and warranties set forth in this Agreement, the offer, sale and
issuance of the Series A Preferred Stock as contemplated by this Agreement are
exempt from the registration requirements of the Securities Act, and neither NRI
nor any authorized agent acting on its behalf will take any action hereafter
that would cause the loss of such exemption.
2.16 Title to Property and Assets; Leases. NRI owns its property and assets
free and clear of all mortgages, liens, claims, and encumbrances other than
liens arising by operation of law which do not affect NRI's use of such property
and assets. With respect to the property and assets it leases, NRI is in
compliance with such leases and, to the best of its knowledge, holds a valid
leasehold interest free of any liens, claims, or encumbrances.
2.17 Financial Statements. NRI has delivered to HSN its audited financial
statements (balance sheet, statement of operations, statement of stockholders'
equity, and statement of cash flows) at December 31, 1991 for the fiscal period
then ended (the "Financial Statements"). The Financial Statements have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the period indicated. The Financial Statements
fairly present the financial condition and operating results of NRI as of the
dates, and for the periods, indicated therein. Except as set forth in the
Financial Statements or in any document listed in Schedule 2.13, NRI has no
material liabilities, contingent or otherwise, other than (a) liabilities
incurred in the ordinary course of business subsequent to December 31, 1991
(including accrued payments due subcontractors and consultants and ordinary
operating expenses) and (b) obligations under contracts and commitments incurred
in the ordinary course of business and not required under generally accepted
accounting principles to be reflected in the Financial Statements, which, in
both cases, individually or in the aggregate (excluding accrued payments due
subcontractors and consultants and ordinary operating expenses), are not
material to the financial condition or operating results of NRI. Except as
disclosed in the Financial Statements, NRI is not a guarantor or indemnitor of
any indebtedness of any other person, firm, or corporation. NRI maintains and
will continue to maintain a standard system of accounting established and
administered in accordance with generally accepted accounting principles.
2.18 Changes. To the best of NRI's knowledge, since December 31, 1991,
there has not been any event or condition of any type that has materially and
adversely affected the business, properties, prospects, or financial condition
of NRI, other than operating losses that NRI has incurred in the ordinary course
of business.
2.19 Taxes. NRI has filed all tax returns and reports as required by law.
These returns and reports are true and correct in all material respects. NRI has
paid all material taxes and other assessments due, except those contested by NRI
in good faith. The provision for taxes of NRI as shown in the Financial
Statements is adequate for taxes due or accrued as of the date thereof. NRI has
never had any tax deficiency proposed or assessed against it and has not
executed any waiver of any statute of limitations on the assessment or
collection of any tax or governmental charge. None of NRI's federal income tax
returns and none of its state income or franchise tax or sales or use tax
returns has ever been audited by a governmental authority. Since the date of the
Financial Statements, NRI has made adequate provisions on its books of account
for all material taxes, assessments, and governmental charges with respect to
its business, properties, and operations for such periods.
3. Representations and Warranties of HSN.
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HSN hereby represents and warrants to NRI as follows:
3.1 Authorization. HSN is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. HSN has full power
and authority to enter into this Agreement and this Agreement constitutes a
valid and legally binding obligation of HSN.
3.2 Due Diligence. HSN has received from NRI all documents listed in
Schedule 2.13 hereto. HSN represents that NRI has afforded it the opportunity to
examine documents, ask questions and obtain all information concerning the
financial condition, business, assets, prospects and liabilities of NRI that HSN
has requested from NRI and that HSN has deemed necessary in its conduct of its
due diligence of NRI.
3.3 Investment Experience. HSN has sufficient knowledge and experience in
financial and business matters so as to be capable of evaluating the merits and
risks of its investment in the Series A Preferred Stock and, upon conversion
thereof, the Common Stock (together, the "Securities"). HSN has the ability to
bear the economic risks of its investment and understands that an investment in
the Securities is speculative and involves a high degree of risk. HSN is an
"accredited investor" as such term is defined in Regulation D promulgated under
the Securities Act.
3.4 Purchase Entirely for Own Account. The Securities are being acquired
for investment purposes only for HSN's own account, and not with a view to the
resale or distribution of any part thereof, and HSN has no present intention of
selling, granting any participation in, or otherwise distributing the same.
3.5 Restricted Securities. HSN is aware of and understands the following:
(a) That no federal or state agency has made a finding or
determination as to the advisability or fairness of an investment in the
Securities or any recommendation or endorsement of the Securities;
(b) That the Securities have not been registered for sale under the
Securities Act or any state blue sky law; and
(c) That, unless and until the Securities are registered for sale
under the Securities Act and any applicable state blue sky law, there will
be substantial restrictions on the transferability of the Securities; there
will be no public market for the Securities in the United States; and HSN
will not be able to avail itself of the provisions of Rule 144 adopted by
the Securities and Exchange Commission (the "SEC") under the Securities
Act, unless all of the conditions of Rule 144 are met.
3.6 Legend. HSN understands and agrees that, until registered under all
applicable securities laws, all certificates evidencing any of the Securities,
whether upon initial issuance or any transfer thereof, shall bear the following
legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED
PURSUANT TO A NON-PUBLIC OFFERING UNDER THE SECURITIES ACT OF
1933, AS AMENDED, AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES
LAWS, AND THEREFORE CANNOT BE SOLD, TRANSFERRED, PLEDGED,
HYPOTHECATED OR ASSIGNED UNLESS THEY ARE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND UNDER ALL APPLICABLE
STATE SECURITIES LAWS, OR UNLESS AN EXEMPTION THEREFROM IS
AVAILABLE.
4. Registration Rights.
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4.1 Requested Registration. After the earlier to occur of 150 days
following the first public offering following the date hereof (the "First
Offering") of capital stock of NRI or October 30, 1993, upon the written request
of HSN that NRI effect the registration under the Securities Act of all or a
portion of the Common Stock and specifying the intended method of disposition
thereof, NRI shall use its best efforts to effect such registration under the
Securities Act of the requested number of shares of Common Stock to the extent
required to permit the disposition (in accordance with the intended methods as
specified by HSN) of the Common Stock so to be registered; provided, however,
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that (a) NRI shall not be required to effect any such registration at any time
when an exemption from registration is otherwise available to HSN affording HSN
the right to dispose of the number of shares of Common Stock requested to be
registered; and (b) NRI shall be required to effect no more than one
registration per year during any calendar year and no more than three
registrations in the aggregate (not including any registration effected pursuant
to Section 4.2 hereof). If a nationally recognized investment banking firm
acting as financial advisor or underwriter for NRI advises NRI that market
conditions require a limitation in the number of shares of Common Stock to be
registered, the number of shares of Common Stock registered pursuant to this
Section 4.1 shall be reduced accordingly, provided, however, that in the event
of such a reduction, such registration shall not be counted against the number
of registrations which NRI may be required to effect in the aggregate with
respect to the Common Stock but will count against the number of registrations
which NRI may be required to effect in the calendar year in which such request
is made. Any registration requested pursuant to this Section 4.1 shall be
effected by the filing of a registration statement on Form X-0, X-0 or S-3 (or
any other form that includes substantially the same information as would be
required to be included in a registration statement on such forms
as presently constituted, other than a registration statement relating to offers
to employees pursuant to plans or of securities to be issued in business
combinations).
4.2 NRI Registration. If NRI at any time proposes to register any of its
securities under the Securities Act, whether or not for sale for its own account
or for the account of an affiliate or other person, in a manner that would
permit registration of the Common Stock for sale to the public under the
Securities Act (other than a registration (i) on Form S-8 or S-4 or any
successor or similar forms or (ii) relating to securities of NRI issuable upon
exercise of employee stock options or in connection with any employee benefit or
similar plan of NRI or in connection with an acquisition by NRI of any company
involving the issuance of NRI capital stock), it will give thirty (30) days'
prior written notice to HSN of its intention to do so and, upon the written
request of HSN made within twenty (20) days after the receipt of any such notice
(which request shall specify the number of shares of Common Stock intended to be
disposed of by HSN and the intended method of disposition thereof), NRI shall
use its best efforts to effect the registration under the Securities Act of the
number of shares of Common Stock that NRI has been so requested to register by
HSN, to the extent requisite to permit the disposition (in accordance with the
intended methods as specified by HSN) of the Common Stock so to be registered;
provided, however, that NRI shall not be required to effect any such
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registration at any time when an exemption from registration is otherwise
available to HSN affording HSN the right to dispose of the number of shares of
Common Stock requested to be registered; provided, further, that HSN shall not
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be entitled to register any shares of Common Stock pursuant to this Section 4.2
in connection with the First Offering. If the registration of which NRI gives
HSN notice is for a registered public offering involving an underwriting, NRI
shall so advise HSN and the right of HSN to registration pursuant to this
Section 4.2 shall be conditioned upon the inclusion in the underwriting of the
Common Stock HSN seeks to have registered. If a nationally recognized investment
banking firm acting as financial advisor or underwriter for NRI advises NRI in
writing that marketing factors require a limitation on the number of shares to
be underwritten, the representative may exclude the Common Stock from the
registered offering or limit the number of shares of Common Stock so offered by
HSN; provided, however, that the representative shall include in any such
underwriting on a pro rata basis up to the limit determined by the
representative the shares of HSN and all other offerors other than NRI who wish
to sell their shares pursuant to such underwriting. No registration effected
under this Section 4.2 shall relieve NRI of its obligation to effect
registrations upon request under Section 4.1 hereof.
4.3 Registration Procedures. If, whenever and to the extent that NRI is
required to use its best efforts to effect the registration of any of the Common
Stock under the Securities Act as provided in Section 4.1 or 4.2 above, NRI
shall as promptly as possible:
(a) Prepare and file with the SEC a registration statement with
respect to such securities and use its best efforts to cause such
registration statement to become effective;
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective and to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement until
such time as all of such securities have been disposed of in accordance
with the intended methods of disposition by the seller or sellers thereof
set forth in such registration statement, but in no event for a period of
more than six months after such registration statement becomes effective;
(c) Furnish to HSN such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits, except that NRI shall not be
obligated to furnish HSN with more than two copies of such exhibits), such
number of copies of the prospectus comprised in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, and such other
related documents, as HSN may reasonably request in order to facilitate the
disposition of the shares of Common Stock to be registered.
(d) Use its best efforts to register or qualify the number of shares
of Common Stock that NRI has been requested by HSN to register by such
registration statement under such other securities or blue sky laws of such
jurisdictions as HSN shall reasonably request, and do any and all other
acts and things which may be necessary or advisable to enable HSN to
consummate the disposition in such jurisdictions of the shares of Common
Stock that NRI has been requested by HSN to register, except that NRI shall
not for any such purpose be required to qualify generally to do business as
a foreign corporation in any jurisdiction wherein it is not so qualified,
to subject itself to taxation in any such jurisdiction, or to consent to
general service of process in any such jurisdiction;
(e) Use its best efforts to furnish to HSN (i) an opinion of counsel
for NRI addressed to HSN, dated the effective date of the registration
statement and (ii) a "comfort" letter addressed to HSN signed by the
independent public accountants who have certified NRI's financial
statements included in the registration statement, covering substantially
the same matters with respect to the registration statement (and the
prospectus included therein) and, in the case of the accountants' letter,
with respect to events subsequent to the date of such financial statements,
as are customarily covered in opinions of issuers' counsel and in
accountants' letters delivered to the underwriters in underwritten public
offerings of securities; provided, however, that NRI shall not be obligated
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to furnish such an accountants' letter except in connection with an
underwritten offering;
(f) Notify HSN, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in such registration
statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of HSN prepare and furnish to HSN a reasonable
number of copies of a supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances then existing; and
(g) Use its best efforts to list the shares of Common Stock so
registered on any securities exchange on which the common stock of NRI is
then listed, if such securities are not already so listed and if such
listing is then permitted under the rules of such exchange.
4.4 Registration Expenses. The registration expenses incurred in connection
with any registration requested by HSN pursuant to this Section 4 shall be paid
in full by NRI except that HSN shall pay its own legal expenses and all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of any shares of Common Stock beneficially owned by HSN
and sold pursuant to a registration statement effected pursuant to this Section
4.
4.5 Indemnification. HSN and NRI agree to indemnify each other in
connection with any registration effected pursuant to this Section 4 (in
accordance with the indemnification procedures set forth in Section 6.2 of this
Agreement) as follows:
(a) NRI will indemnify HSN, each of its officers, directors and
partners, employees, subcontractors, consultants, agents, legal counsel,
and accountants, each underwriter, if any, of NRI's securities covered by
such a registration statement, and each person who controls HSN or such
underwriter within the meaning of Section 15 of the Securities Act, against
all expenses, claims, losses, damages, and liabilities (or actions,
proceedings, or settlements in respect thereof) arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular, or other document
(including any related registration statement, notification, or the like)
incident to any such registration, qualification, or compliance, or based
on 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, or any violation by NRI of the Securities Act or any rule
or regulation thereunder applicable to NRI and relating to action or
inaction required of NRI in connection with any such registration,
qualification, or compliance, and will reimburse HSN, each of its officers,
directors, partners, employees, subcontractors, consultants, agents, legal
counsel, and accountants, each such underwriter, and each person who
controls HSN or such underwriter, for any legal and other expenses
reasonably incurred in connection with investigating and defending or
settling any such claim, loss, damage, liability, or action, provided that
NRI will not be liable in any such case
to the extent that any such claim, loss, damage, liability, or expense
arises out of or is based on any untrue statement or omission based upon
written information furnished to NRI by HSN or such underwriter and stated
to be specifically for use therein or any failure by HSN to deliver a final
prospectus or supplement or amendment correcting earlier documents. It is
agreed that the indemnity agreement contained in this Section 4.5 shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of
NRI (which consent has not been unreasonably withheld).
(b) HSN will, if any Common Stock is included in the securities as to
which such registration, qualification, or compliance is being effected,
indemnify NRI, each of its officers, directors, partners, legal counsel,
and accountants, each underwriter, if any, of NRI's securities covered by
such registration statement, and each person who controls NRI or such
underwriter within the meaning of Section 15 of the Securities Act, against
all expenses, claims, losses, damages, and liabilities (or actions,
proceedings, or settlements in respect thereof) arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering
circular, or other document, or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse NRI, each of its
officers, directors, partners, legal counsel, and accountants, each such
underwriter, and each such control person, for any legal and other expenses
reasonably incurred in connection with investigating and defending or
settling any such claim, loss, damage, liability, or action, in each case
to the extent, but only to the extent, that such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is made in such
registration statement, prospectus, offering circular, or other document in
reliance upon and in conformity with written information furnished to NRI
by HSN; provided, however, that the obligations of HSN hereunder shall not
--------
apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of
HSN (which consent has not been unreasonably withheld).
(c) If the indemnification provided for in this Section 4.5 is held by
a court of competent jurisdiction to be unavailable to the party seeking
such indemnification (the "Indemnified Party") with respect to any loss,
liability, claim, damage, or expense referred to therein, then the party
which is required to provide indemnification pursuant to this Section 4.5
(the "Indemnifying Party") in lieu of indemnifying such Indemnified Party
hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage, or
expense in such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party on the one hand and of the Indemnified Party on
the other in connection with the statements or omissions that resulted in
such loss, liability, claim, damage, or expense as well as any other
relevant equitable considerations. The relative fault of the Indemnifying
Party
and of the Indemnified Party shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the
parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
(d) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
4.6 Requested Information. NRI may require HSN, in connection with any
registration requested by HSN pursuant to this Section 4, to furnish NRI with
such information regarding HSN and the distribution of the Common Stock
requested to be registered as NRI may from time to time request in writing and
as shall be required by law or by the SEC in connection therewith.
5. Stock Purchase Right.
--------------------
5.1 Stock Purchase Right. NRI hereby grants to HSN for a period of five
years from the date first written above a stock purchase right to purchase a pro
rata share of any New Securities (as defined in Section 5.2) which NRI may sell
and issue pursuant to a public offering or a private placement or any privately
negotiated sale (other than a stock for stock or stock for assets exchange) or,
at the option at NRI, such number of shares of common stock of NRI into which
HSN's pro rata share of New Securities would be convertible, at the same
aggregate purchase price HSN would have paid had it instead purchased such New
Securities; provided, however, that NRI shall not have such option and HSN shall
be entitled to purchase either a pro rata portion of the New Securities or such
number of shares of common stock of NRI into which HSN's pro rata share of New
Securities could be converted if the New Securities to be issued by NRI require
NRI to pay interest or dividends to the holders of such New Securities. HSN's
pro rata share, for purposes of its stock purchase right, shall be the ratio the
numerator of which is (a) the number of shares of Common Stock owned by HSN
immediately prior to the issuance of the New Securities, assuming full
conversion of the Series A Preferred Stock, and the denominator of which is (b)
the total number of shares of NRI common stock outstanding immediately prior to
the issuance of the New Securities, after taking into account full conversion
(whether or not converted) of the Series A Preferred Stock and all other
convertible securities of NRI and the exercise of all previously issued options,
warrants, and similar instruments.
5.2 New Securities. "New Securities" shall mean any capital stock
(including common stock and preferred stock) of NRI whether now authorized or
not, and rights, options or warrants to purchase such capital stock, and
securities of any type whatsoever that are, or may become, convertible, directly
or indirectly, into common stock of NRI; provided, however, that the term "New
--------
Securities" does not include (a) securities issued
upon conversion of the Series A Preferred Stock; (b) any borrowings, direct or
indirect, from financial institutions or other persons by NRI, whether or not
presently authorized, including any type of loan or payment evidenced by any
type of debt instrument, provided such borrowings do not have any equity
features including warrants, options or other rights to purchase capital stock
and are not convertible into capital stock of NRI; (c) securities issued to
employees, consultants, officers or directors of NRI pursuant to any stock
option, stock purchase or stock bonus plan, agreement or arrangement approved by
the NRI Board of Directors, and securities issued in connection with any stock
split, stock dividend or recapitalization of NRI; (d) securities issued upon
exercise of the Cogent Warrant and (e) any right, option or warrant to acquire
any security convertible into the securities excluded from the definition of New
Securities pursuant to (a) through (c) above.
5.3 Notice and Exercise. In the event NRI proposes to undertake an issuance
of New Securities, it shall provide HSN with thirty (30) days' prior written
notice of its intention, describing the type of New Securities, their price and
the general terms upon which NRI proposes to issue the New Securities. HSN shall
have twenty (20) days after it receives any such notice to agree to purchase its
pro rata share of such New Securities for the price and upon the terms specified
in the notice by giving written notice to NRI and stating therein the quantity
of New Securities to be purchased. In the event that HSN fails to exercise fully
its stock purchase right to purchase New Securities, NRI shall not thereafter
issue or sell such New Securities on terms materially different from those set
forth in the notice provided to HSN pursuant to this Section 5.3 without first
again offering such New Securities to HSN in accordance herewith.
6. Indemnification.
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6.1 Indemnification. HSN and NRI each hereby agrees to indemnify the other
and its representatives, subcontractors, consultants and agents, and to hold the
other and its representatives, subcontractors, consultants and agents harmless
from and against, any and all loss, damage or liability (including but not
limited to attorneys' fees and costs) due to, or arising out of, any breach of
any representation, warranty or covenant of HSN or NRI, as the case may be,
contained in this Agreement.
6.2 Indemnification Procedures. Each party entitled to indemnification
under Section 6.1 or under Section 4.5 of this Agreement (the "Indemnified
Party") shall give notice to the party required to provide indemnification (the
"Indemnifying Party") promptly after such Indemnified Party has actual knowledge
of any claim as to which indemnity may be sought, and (if the claim is made by a
third party) shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its indemnification obligations to
the extent such
failure is not prejudicial. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of the Indemnified Party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection
with the defense of such claim and litigation resulting therefrom.
7. Conditions to Closing.
---------------------
7.1 Conditions to HSN's Obligation to Close. The obligation of HSN to close
the stock purchase as described in Section 1.3 of this Agreement shall be
subject to the fulfillment, on or before the Closing, of each of the following
conditions:
(a) The representations and warranties of NRI set forth in Section 2
of this Agreement shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and
as of the date of the Closing except for representations and warranties
expressly limited to a specific date;
(b) NRI shall have performed and complied with all agreements,
obligations, and conditions contained in this Agreement that are required
to be performed or complied with by it on or before the Closing;
(c) HSN shall have received from Stroock & Stroock & Xxxxx, counsel
for NRI, an opinion, dated the date of the Closing, in form and substance
satisfactory to counsel to HSN, substantially to the effect that:
(i) NRI has been duly incorporated and organized and is a validly
existing corporation in good standing under the laws of the State of
Delaware and has the requisite corporate power to own its property and
assets and to conduct its business as it is currently being conducted;
(ii) This Agreement and has been duly and validly authorized,
executed and delivered by NRI and constitutes a legal, valid and
binding obligation of NRI, enforceable in accordance with its terms,
subject to bankruptcy, insolvency, preferential transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
(iii) The authorized capital stock of NRI consists of (A)
25,000,000 shares of common stock, $.01 par value per share, and (B)
1,000,000 shares of preferred stock, $.01 par value per share, the
rights, privileges and preferences of which, in the case of the Series
A Preferred Stock, are as stated in the Board Resolutions. The Series
A Preferred
Stock to be issued pursuant to the Agreement has been duly authorized
and upon receipt of the Cash Purchase Price will be validly issued,
fully paid and non-assessable preferred stock of NRI and free and
clear of any liens, claims and encumbrances. The Common Stock issuable
upon the conversion of the Series A Preferred Stock purchased under
this Agreement has been duly and validly reserved for issuance and,
when issued in accordance with the terms of the Board Resolutions,
will be duly and validly issued, fully paid and non-assessable, not
subject to any preemptive rights, and free and clear of all liens,
claims and encumbrances;
(iv) Except for (A) the conversion privileges of the Series A
Preferred Stock; (B) the preemptive right provided in the Board
Resolutions; (C) the stock purchase right provided in Section 5 of
this Agreement; (D) the Cogent Warrant; and (E) the Employee Options,
there are no preemptive rights or, to the best of counsel's knowledge,
options, warrants, conversion privileges, or other rights (or
agreements for any such rights) outstanding to purchase or otherwise
obtain any securities of NRI;
(v) The certificates representing the Series A Preferred Stock
are in due and proper form and have been validly executed;
(vi) The execution, delivery and performance of this Agreement by
NRI on or prior to the Closing and the issuance of the Series A
Preferred Stock pursuant thereto do not violate any provision of NRI's
Amended Certificate of Incorporation or Bylaws, and do not constitute
a material default under the provisions of any material agreement
known to counsel to which NRI is a party or by which it is bound, and
do not violate or contravene any order, writ, judgment, injunction,
decree, determination or award which has been entered against NRI and
of which counsel is aware, the violation or contravention of which
would materially and adversely affect NRI, its assets, financial
condition or operations;
(vii) All consents, approvals, authorizations, or orders of, and
filings, registrations, and qualifications with, any regulatory
authority or governmental body in the United States required for the
consummation by NRI of the transactions contemplated by this
Agreement, have been made or obtained; and
(viii) Subject in part to the truth and accuracy of HSN's
representations and warranties set forth in this Agreement, the offer
and sale of the Series A Preferred Stock is, and the issuance of the
Common Stock upon conversion of the Series A Preferred Stock would be,
exempt from the registration requirements of the Securities Act.
7.2 Conditions to NRI's Obligation to Close. The obligation of NRI to close
the stock purchase as described in Section 1.3 of this Agreement shall be
subject to the fulfillment, on or before the Closing, of the following
condition:
(a) The representations and warranties of HSN set forth in Section 3
of this Agreement shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and
as of the date of the Closing.
(b) HSN shall have performed and complied with all agreements,
obligations, and conditions contained in this Agreement, including the
payment of the Cash Purchase Price, that are required to be performed or
complied with by it on or before the Closing.
8. Miscellaneous.
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8.1 Public Announcement. Each party hereto shall consult with the other in
advance of the issuance of any press release relating to the matters set forth
in this Agreement.
8.2 No Assignment or Transfer. Neither HSN nor NRI shall assign its rights
or transfer its obligations under this Agreement in whole or in part without
first obtaining the written consent of the other party.
8.3 Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Delaware.
8.4 Benefit. This Agreement shall be binding upon HSN, NRI, their
administrators, legal representatives, successors, and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended to confer upon any
person, other than the parties hereto, any rights or remedies under or by reason
of this Agreement.
8.5 Specific Performance. (a) The parties to this Agreement hereby agree
that an award of damages alone is inadequate to remedy a breach of the terms of
this Agreement and that specific performance, injunctive relief or other
equitable remedy is the only way by which the intent of this Agreement may be
adequately realized upon breach by one or more of the parties hereto. Such
remedy shall, however, be cumulative and not exclusive, and shall be in addition
to any other remedy which the parties may have.
(b) In furtherance of and not in limitation of paragraph (a) of this
Section 8.5, should any dispute arise concerning a sale, purchase, encumbrance,
pledge, transfer, hypothecation, assignment or other disposition of any of the
Series A Preferred Stock or Common Stock which is alleged to contravene the
provisions of this Agreement, an
injunction may be issued restraining any such transaction pending the
determination of such controversy.
8.6 Waiver. Failure by either party to insist upon strict compliance with
any of the terms, covenants or conditions of this Agreement shall not be deemed
a waiver of such terms, covenants or conditions, nor shall any waiver or
relinquishment of any right or power hereunder at any one time or more times be
deemed a waiver or relinquishment of such right or power at any other time or
times.
8.7 Notice. All notices, demands, requests, offers, acceptances, deliveries
or other communications required or permitted to be given or delivered under
this Agreement, shall be in writing and shall be deemed delivered when served
personally, via courier, via telecopy, or on the third business day after being
deposited in the United States mail, certified or registered mail, postage
prepaid, addressed as follows:
If to NRI:
The National Registry Inc.
0 Xxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
and Secretary
If to HSN:
Home Shopping Network, Inc.
00000 00xx Xxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attention: Executive Vice President and
Chief Financial Officer
Each party to this Agreement may from time to time change the address to
which notices are to be delivered or mailed by giving notice of such change to
the other party as provided herein.
8.8 Survival of Terms. All of the terms, conditions, warranties and
representations contained in this Agreement shall survive the execution hereof.
8.9 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only by a writing executed by all of the parties.
8.10 Severability. The invalidity or unenforceability of any provision of
this Agreement shall in no way affect the validity or enforceability of any
other provision hereof.
8.11 Headings. The headings to the sections of this Agreement are used for
reference only and are not to be construed as limiting or extending the
provisions hereof.
8.12 Counterparts. This Agreement may be executed in any number of
counterparts, each of which together shall be considered an original but all of
which shall constitute the Agreement by and among the parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Home Shopping Network, Inc.
00000 00xx Xxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
By: /s/ Xxx X. Xxxxx
------------------
Chairman and Chief
Executive Officer
The National Registry Inc.
By: /s/ J. Xxxxxxx Xxxxxxxxx
-------------------------
J. Xxxxxxx Xxxxxxxxx
Chairman and Chief
Executive Officer
