<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. ________)*
Spatialight, Inc.
(Name of Issuer)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
805691102
(CUSIP Number)
-------------------------
Steven Francis Tripp
2021 Brook Highland Ridge
Birmingham, Alabama 35242
(205) 991-3375
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
-------------------------
Copy to:
M. Williams Goodwyn, Jr.
Bradley Arant Rose & White LLP
2001 Park Place, Suite 1400
Birmingham, Alabama 35203-2736
-------------------------
November 20, 1998
(Date of Event Which Requires Filing of this Statement)
- --------------------------------------------------------------------------------
If this filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following
box. [ ]
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter the
disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE> 2
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Ronald A. Weyers
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
111,110.67
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 111,110.67
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
111,110.67
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.98%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Jeffrey J. Weyers
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
111,110.67
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 111,110.67
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
111,110.67
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.98%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 4
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Robert J. Weyers
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
111,110.67
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 111,110.67
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
111,110.67
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.98%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 5
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Matthew A. King
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
50,000
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 50,000
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
50,000
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.44%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 6
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Robert O. Rolfe
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
66,666.67
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 66,666.67
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
66,666.67
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.59%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 7
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
John W. Eakin
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
33,333.33
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 33,333.33
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
33,333.33
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.30%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 8
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Bryan B. Starr, Sr.
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
33,333.33
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 33,333.33
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
33,333.33
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.30%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 9
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Bryan B. Starr, Jr.
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
33,333.33
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 33,333.33
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
33,333.33
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.30%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 10
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Robert E. Woods
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
66,666.67
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 66,666.67
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
66,666.67
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.59%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 11
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Marcia K. Tripp
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
266,666.67
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 266,666.67
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
266,666.67
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.31%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 12
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Lisa Marie Tripp Trust
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Alabama
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
66,666.67
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 66,666.67
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
66,666.67
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.59%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 13
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Wayne Patrick Tripp Trust
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Alabama
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
66,666.67
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 66,666.67
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
66,666.67
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.59%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 14
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Steven Francis Tripp
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
133,333.33
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 133,333.33
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
133,333.33
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.17%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 15
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
FBO Jimmie H. Harvey, M.D. Birmingham Hematology & Oncology Associates, SLB Flex Prototype P/S Plan
DTD 10-17-85
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Alabama
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
166,666.67
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 166,666.67
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
166,666.67
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.46%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
EP
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 16
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Jimmie H. Harvey, M.D.
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
333,333.34
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 333,333.34
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
333,333.34
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.87%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 17
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Hilliard Limited Partnership
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
WC
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
States of Wisconsin
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
200,000
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 200,000
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
200,000
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.74%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 18
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Wallace J. Hilliard Flint Trust
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
State of Wisconsin
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
133,333.33
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 133,333.33
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
133,333.33
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.17%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 19
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Dan Hilliard
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
N/A
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
133,333.33
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES 200,000.00
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 133,333.33
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
200,000.00
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
333,333.33
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.87%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 20
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Paul Klister
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
33,333.33
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 33,333.33
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
33,333.33
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.30%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 21
CUSIP No. 805691102 13D
<TABLE>
<S> <C> <C> <C> <C> <C>
- --------------------------------------------------------------------------------------------------------------
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Jefferson R. Cobb
- --------------------------------------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [x]
- --------------------------------------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
- --------------------------------------------------------------------------------------------------------------
5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
- --------------------------------------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
- --------------------------------------------------------------------------------------------------------------
7 SOLE VOTING POWER
100,000
------------------------------------------------------------------------------------------
NUMBER OF 8 SHARED VOTING POWER
SHARES -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 100,000
PERSON
WITH ------------------------------------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
100,000
- --------------------------------------------------------------------------------------------------------------
12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
- --------------------------------------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.88%
- --------------------------------------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
- --------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 22
Item 1. Security and Issuer.
This statement (this "Statement") relates to shares of Common
Stock, par value $0.01 per share ("Spatialight Shares") of Spatialight, Inc., a
New York corporation ("Spatialight"), whose principal executive offices are
located at 8 Commercial Blvd., Suite C, Novato, California 94949-6125.
Item 2. Identity and Background.
This Statement is being filed on behalf of certain investors
who have invested in convertible secured notes (the "Notes") of Spatialight that
are convertible into Spatialight Shares (the "Filing Persons") because the
Filing Persons may be deemed, with respect to such actions (but not otherwise),
to be a "group" for purposes of Section 13(d)(3) of the Securities Exchange Act
of 1934 (the "Exchange Act"). As more fully set forth in Item 4 below, the
Filing Persons disclaim membership in such a Section 13(d)(3) group. Powers of
Attorney authorizing M. Williams Goodwyn, Jr. and James W. Childs, Jr., or
either of them, to execute this Statement on behalf of the Filing Persons are
annexed hereto as Exhibit 1.
(a)-(c) The name, business or residence address, and
present principal occupation or employment (including the name, principal
business and address of the corporation or organization in which such employment
is conducted) of each of the Filing Persons is set forth in Schedule 1, which is
annexed hereto and incorporated herein by reference.
(d)-(e) During the last five years, none of the
Filing Persons (or the general partners of Hilliard Limited Partnership) has
been convicted in a criminal proceeding (excluding traffic violations and
similar misdemeanors), nor has any of the Filing Persons (or the general
partners of Hilliard Limited Partnership) been a party to a civil proceeding of
a judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
(f) All of the Filing Persons who are
individuals are citizens of the United States of America. The Wayne Patrick
Tripp Trust, the Lisa Marie Tripp Trust and the FBO Jimmie H. Harvey, M.D.
Birmingham Hematology & Oncology Associates, SLB Flex Prototype P/S Plan DTD
10-17-85 are governed by the laws of the State of Alabama, the Wallace J.
Hilliard Flint Trust is governed by the laws of the State of Wisconsin, and the
Hilliard Limited Partnership is organized under the laws of the State of
Wisconsin.
Item 3. Source and Amount of Funds or Other Consideration.
All of the Filing Persons used personal funds to invest in the
Notes, except that the Hilliard Limited Partnership used general working capital
to fund its investment in the Notes.
Item 4. Purpose of Transaction.
This Statement is being filed because the Filing Persons may
be deemed, with respect to their investment in the Notes (but not otherwise), to
be a "group" for purposes of Section 13(d)(3) of the Exchange Act because the
Filing Persons have a right under the terms of the loan agreements executed in
connection with the Notes (the "Loan Agreements") to nominate one candidate to
be included on Spatialight's management's slate for
<PAGE> 23
election as directors, or, if the Filing Persons' nominee is not elected, to
appoint one representative to attend meetings of Spatialight's board of
directors. In addition, the Loan Agreements contain provisions requiring
Spatialight to obtain the Filing Persons' consent to, among other things,
declare dividends, incur indebtedness, merge, reorganize, consolidate or sell
all or substantially all of its assets, which could be deemed to confer upon the
Filing Persons the ability to influence the business operations of Spatialight.
However, each of the Filing Persons disclaims membership in a Section 13(d)(3)
group. The Filing Persons have not agreed to act in concert to influence the
director that they are entitled to nominate, and each Filing Person is free to
take different positions on any issue requiring their consent in the Loan
Agreements. Moreover, there is no requirement that the director discuss any of
his or her decisions with the Filing Persons. Each of the Filing Persons is free
to convert their Note into Spatialight Shares at any time and independently of
any other Filing Person, and once a Filing Person so converts he has no further
rights under the Loan Agreement or the Note. Other than as described herein, the
relationship that exists among the Filing Persons is based solely on their
common investment and their shared security interest in the collateral of
Spatialight that secures the Notes.
Except as otherwise described herein, the Filing Persons do
not have any plans or proposals as of the date hereof which relate to or would
result in (a) the acquisition by any person of additional securities of
Spatialight or the disposition of any such securities, (b) an extraordinary
corporate transaction, such as a merger, reorganization or liquidation,
involving Spatialight or any of its subsidiaries, (c) a sale or transfer of a
material amount of assets of Spatialight or any of its subsidiaries, (d) any
change in the present board of directors or management of Spatialight, (e) any
material change in the present capitalization or dividend policy of Spatialight,
(f) any other material change in Spatialight's business or corporate structure,
(g) any change in Spatialight's charter or bylaws or other actions which may
impede the acquisition of control of Spatialight by any person, (h) causing a
class of securities of Spatialight to be delisted from any national securities
exchange or to cease to be authorized to be quoted in an inter-dealer quotation
system of a registered national securities association, (i) causing a class of
equity securities of Spatialight to become eligible for termination of
registration pursuant to Section 12(g)(4) of the Exchange Act, or (j) any action
similar to those enumerated in (a) through (i) above.
Item 5. Interest in Securities of the Issuer.
(a), (b) The Filing Persons presently beneficially
own an aggregate of 1,816,665.34 Spatialight Shares, or approximately 13.87% of
the aggregate number of Spatialight Shares reported by Spatialight as being
outstanding as of October 23, 1998. Schedule 2, which is annexed hereto and
incorporated herein by reference, sets forth certain information with respect to
the Spatialight Shares owned by each of the Filing Persons and the power of each
Filing Person to vote or dispose of the Spatialight Shares owned by such Filing
Person.
Except for Marcia K. Tripp's beneficial
ownership of the Spatialight Shares beneficially owned by the Wayne Patrick
Tripp Trust and the Lisa Marie Tripp Trust, Jimmie H. Harvey's beneficial
ownership of the Spatialight Shares beneficially owned by the FBO Jimmie H.
Harvey, M.D. Birmingham Hematology & Oncology Associates, SLB Flex Prototype P/S
Plan DTD 10-17-85, and Dan Hilliard's beneficial ownership of the Spatialight
Shares beneficially owned by the Wallace J. Hilliard Flint Trust and the
Hilliard Limited Partnership, each Filing Person disclaims beneficial ownership
of the Spatialight Shares beneficially owned by each of the other Filing
Persons.
(c) All of the Spatialight Shares beneficially
owned by each Filing Person is so beneficially owned because the Note that such
Filing Person holds is convertible into Spatialight Shares at a
<PAGE> 24
conversion price of $0.75 per Spatialight Share, subject to adjustment to
protect against dilution. The funds to be loaned to Spatialight by the Filing
Persons in exchange for the Notes were placed in escrow at the closing of the
transactions (the "Closing"), and twenty-five percent (25%) of the funds were
released to Spatialight at the Closing. The remaining funds will be released to
Spatialight in three twenty-five percent (25%) increments as certain milestone
events are achieved by Spatialight, if each or all such milestone events are
ever achieved by Spatialight. Therefore, the exact number of Spatialight Shares
that each Filing Person has the right to convert their Note into will depend
upon whether any or all of the milestone events are achieved. Otherwise, no
Filing Person presently directly owns any Spatialight Shares. Except for their
rights under the Notes, including their right to receive Spatialight Shares in
lieu of interest, none of the Filing Persons, or any of their respective
associates, has the right to acquire, directly or indirectly, any Spatialight
Shares. Except as described herein, no Filing Person has effected any
transactions in the Spatialight Shares during the past 60 days.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
Dan Hilliard, Neal Maccoux, and Wallace J. Hilliard are
general partners of Hilliard Limited Partnership with shared voting and
dispositive power over the Spatialight Shares beneficially owned by Hilliard
Limited Partnership. The Filing Persons have been granted registration rights
under certain registration rights agreements with Spatialight (the "Registration
Rights Agreements"), and the Filing Persons have entered into a security
agreement (the "Security Agreement") and an intercreditor agreement (the
"Intercreditor Agreement") relating to their shared security interest in the
collateral of Spatialight. The Filing Persons have also entered into a note
holders' representative agreement (the "Note Holders' Representative Agreement")
whereby they agreed to nominate Steven Francis Tripp as a director of
Spatialight pursuant to the terms of their Loan Agreement and to appoint him
their agent for purposes of protecting their rights with respect to the
collateral securing the Notes. Other than as disclosed in this Statement, there
exist no contracts, arrangements, understandings or relationships (legal or
otherwise) among the Filing Persons or between any of them and any other person
with respect to any securities of Spatialight, including but not limited to
transfer or voting of any such securities, finder's fees, joint ventures, loan
or option arrangements, puts or calls, guarantees of profits, division of
profits or losses, or the acquiring or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
(a) Attached hereto as Exhibit 1 are copies of powers of
attorney executed by the Filing Persons authorizing the execution of this
Statement and amendments thereto on their behalf by M. Williams Goodwyn, Jr. or
James W. Childs, Jr.
(b) Attached hereto as Exhibits 2, 3, 4, 5, 6 and 7,
respectively, are forms of the Note, Loan Agreement, Security Agreement,
Intercreditor Agreement, Registration Rights Agreement, and Note Holders'
Representative Agreement that were executed with respect to each Filing Person
in connection with their investment in the Notes. The only differences that
exist among the aforementioned documents with respect to each Filing Person are
the references to their names and addresses, and the following amounts of their
investments in the Notes (amounts are not given with respect to Dan Hilliard
because he is not directly investing in the Notes):
<TABLE>
<CAPTION>
Filing Person Investment Amount Number of Shares
------------- ----------------- ----------------
<S> <C> <C>
Ronald A. Weyers $ 83,333.00 111,110.67
Jeffrey J. Weyers $ 83,333.00 111,110.67
</TABLE>
<PAGE> 25
<TABLE>
<S> <C> <C>
Robert J. Weyers $ 83,333.00 111,110.67
Matthew A. King $ 37,500.00 50,000.00
Robert O. Rolfe $ 50,000.00 66,666.67
John W. Eakin $ 25,000.00 33,333.33
Bryan B. Starr, Sr. $ 25,000.00 33,333.33
Bryan B. Starr, Jr. $ 25,000.00 33,333.33
Robert E. Woods $ 50,000.00 66,666.67
Marcia K. Tripp $100,000.00 133,333.33
Wayne Patrick Tripp Trust $ 50,000.00 66,666.67
Lisa Marie Tripp Trust $ 50,000.00 66,666.67
Steven Francis Tripp $100,000.00 133,333.33
FBO Jimmie H. Harvey, M.D.
Birmingham Hematology &
Oncology Associates, SLB
Flex Prototype P/S Plan DTD
10-17-85 $125,000.00 166,666.67
Jimmie H. Harvey, M.D. $125,000.00 166,666.67
Hilliard Limited Partnership $150,000.00 200,000.00
Wallace J. Hilliard Flint Trust $100,000.00 133,333.33
Paul Klister $ 25,000.00 33,333.33
Jefferson R. Cobb $ 75,000.00 100,000.00
</TABLE>
<PAGE> 26
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief, we certify
that the information set forth in this Statement is true, complete and correct.
DATED: November 24, 1998
<TABLE>
<S> <C>
* *
- --------------------------------------------- ---------------------------------------------
Ronald A. Weyers Wayne Patrick Tripp Trust
* *
- --------------------------------------------- ---------------------------------------------
Jeffrey J. Weyers Lisa Marie Tripp Trust
* *
- --------------------------------------------- ---------------------------------------------
Robert J. Weyers Steven Francis Tripp
* *
- --------------------------------------------- ---------------------------------------------
Matthew A. King FBO Jimmie H. Harvey, M.D. Birmingham
Hematology & Oncology Associates, SLB Flex
* Prototype P/S Plan DTD 10-17-85
- ---------------------------------------------
Robert O. Rolfe
* *
- --------------------------------------------- ---------------------------------------------
John W. Eakin Jimmie H. Harvey, M.D.
* *
- --------------------------------------------- ---------------------------------------------
Bryan B. Starr, Sr. Hilliard Limited Partnership
* *
- --------------------------------------------- ---------------------------------------------
Bryan B. Starr, Jr. Wallace J. Hilliard Flint Trust
* *
- --------------------------------------------- ---------------------------------------------
Robert E. Woods Paul Klister
* *
- --------------------------------------------- ---------------------------------------------
Marcia K. Tripp Jefferson R. Cobb
*
- ---------------------------------------------
Dan Hilliard
*By: /s/ JAMES W. CHILDS, JR.
-----------------------------------
James W. Childs, Jr.
attorney-in-fact
</TABLE>
<PAGE> 27
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
PAGE IN
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION FILING
<S> <C> <C>
1. Powers of Attorney ______
2. Form of Note ______
3. Form of Loan Agreement ______
4. Form of Security Agreement ______
5. Form of Intercreditor Agreement ______
6. Form of Registration Rights Agreement ______
7. Form of Note Holders' Representative Agreement ______
</TABLE>
<PAGE> 28
SCHEDULE 1
<TABLE>
<CAPTION>
Name, Principal Business
and Address of Corporation
Name and Business or or Organization in which
Residence Address of Present Principal Occupation Principal Occupation of
Filing Person of Filing Person Filing Person is Conducted
- -------------------------- ---------------------------------- ---------------------------------
<S> <C> <C>
Ronald A. Weyers Private Investors 500 AMS Court
500 AMS Court Green Bay, WI 54313
Green Bay, WI 54313
Jeffrey J. Weyers Private Investor 500 AMS Court
500 AMS Court Green Bay, WI 54313
Green Bay, WI 54313
Robert J. Weyers Private Investor 500 AMS Court
500 AMS Court Green Bay, WI 54313
Green Bay, WI 54313
Matthew A. King Private Investor US Office Products
3287 Franklin Limestone Road, 3287 Franklin Limestone Road,
Suite 301 Suite 301
Antioch, TN 37013-2747 Antioch, TN 37013-2747
Robert O. Rolfe Managing Partner, JC Bradford & Co.
330 Commerce Street Municipal Finance 330 Commerce Street
Nashville, TN 37201 Nashville, TN 37201
John W. Eakin Senior Vice President Highwood Properties
2100 West End Avenue 2100 West End Avenue
Nashville, TN 37203 Nashville, TN 37203
Bryan B. Starr, Sr. Chairman Healthcare Realty Management
1400 Urban Center Drive, 1400 Urban Center Drive,
Suite 400 Suite 400
Birmingham, AL 35242 Birmingham, AL 35242
Bryan B. Starr, Jr. Sole Proprietor/Owner Starr Enterprises
1400 Urban Center Drive, 1400 Urban Center Drive,
Suite 415 Suite 415
Birmingham, AL 35242 Birmingham, AL 35242
</TABLE>
<PAGE> 29
<TABLE>
<CAPTION>
Name, Principal Business
and Address of Corporation
Name and Business or or Organization in which
Residence Address of Present Principal Occupation Principal Occupation of
Filing Person of Filing Person Filing Person is Conducted
- -------------------------- ---------------------------------- ---------------------------------
<S> <C> <C>
Robert E. Woods Chief Information Officer Knoware, Inc.
2021 Brook Highland Ridge 2021 Brook Highland Ridge
Birmingham, AL 35242 Birmingham, AL 35242
Marcia K. Tripp Private Investor 35 Indian Forest Road
35 Indian Forest Road Indian Springs, AL 35124
Indian Springs, AL 35124
Lisa Marie Tripp Trust N/A 35 Indian Forest Road
35 Indian Forest Road Indian Springs, AL 35124
Indian Springs, AL 35124
Wayne Patrick Tripp Trust N/A 35 Indian Forest Road
35 Indian Forest Road Indian Springs, AL 35124
Indian Springs, AL 35124
Steven Francis Tripp President Knoware, Inc.
2021 Brook Highland Ridge 2021 Brook Highland Ridge
Birmingham, AL 35242 Birmingham, AL 35242
FBO Jimmie H. Harvey, M.D. N/A 790 Montclair Road, Suite 100
Birmingham Hematology & Birmingham, AL 35213
Oncology Associates, SLB Flex
Prototype P/S Plan DTD 10-17-85
790 Montclair Road, Suite 100
Birmingham, AL 35213
Jimmie H. Harvey, M.D. Medical Doctor Birmingham Hematology &
790 Montclair Road, Suite 100 Oncology Associates, P.C.
Birmingham, AL 35213 790 Montclair Road, Suite 100
Birmingham, AL 35213
</TABLE>
<PAGE> 30
<TABLE>
<CAPTION>
Name, Principal Business
and Address of Corporation
Name and Business or or Organization in which
Residence Address of Present Principal Occupation Principal Occupation of
Filing Person of Filing Person Filing Person is Conducted
- -------------------------- ---------------------------------- ---------------------------------
<S> <C> <C>
Hilliard Limited Partnership N/A 255 South Trillium
255 South Trillium Green Bay, WI 54313
Green Bay, WI 54313 * Same address for each General
*General Partners: Partner:
Dan Hilliard (US Citizen) General Partner Hilliard Limited Partnership
Neal Maccoux (US Citizen) General Partner 255 South Trillium
Wallace J. Hilliard (US General Partner Green Bay, WI 54313
Citizen)
Wallace J. Hilliard Flint Trust N/A 840 Willard Drive, Suite 205
840 Willard Drive, Suite 205 Green Bay, WI 54304
Green Bay, WI 54304
Paul Klister Attorney Klister & Associates, Inc.
1308 East Shade Tree Lane 200 East College Avenue
Appleton, WI 54915 Appleton, WI 54911
Jefferson R. Cobb Private Investor Post Office Box 130310
Post Office Box 130310 Birmingham, AL 35213
Birmingham, AL 35213
</TABLE>
<PAGE> 31
SCHEDULE 2
<TABLE>
<CAPTION>
Number of Number of Number of Number of
Shares With Shares With Shares With Shares With
Number and Respect to Which Respect to Which Respect to Which Respect to Which
Percentage of the Filing the Filing Person the Filing Person the Filing Person
Class of Shares Person Has Has Shared Has Sole Has Shared
Name of Beneficially Sole Voting Voting Dispositive Dispositive
Filing Person Owned Power Power Power Power
- ------------------- --------------- ---------------- ----------------- ----------------- -----------------
<S> <C> <C> <C> <C> <C>
Ronald A. Weyers 111,110.67 111,110.67 -0- 111,110.67 -0-
Jeffrey J. Weyers 111,110.67 111,110.67 -0- 111,110.67 -0-
Robert J. Weyers 111,110.67 111,110.67 -0- 111,110.67 -0-
Matthew A. King 50,000 50,000 -0- 50,000 -0-
Robert O. Rolfe 66,666.67 66,666.67 -0- 66,666.67 -0-
John W. Eakin 33,333.33 33,333.33 -0- 33,333.33 -0-
Bryan B. Starr, Sr. 33,333.33 33,333.33 -0- 33,333.33 -0-
Bryan B. Starr, Jr. 33,333.33 33,333.33 -0- 33,333.33 -0-
Robert E. Woods 66,666.67 66,666.67 -0- 66,666.67 -0-
Marcia K. Tripp 266,666.67 266,666.67 -0- 266,666.67 -0-
Wayne Patrick Tripp
Trust 66,666.67 66,666.67 -0- 66,666.67 -0-
Lisa Marie Tripp Trust 66,666.67 66,666.67 -0- 66,666.67 -0-
Steven Francis Tripp 133,333.33 133,333.33 -0- 133,333.33 -0-
FBO Jimmie H.
Harvey, M.D.
Birmingham Hematology
& Oncology Associates,
SLB Flex Prototype
P/S Plan DTD 10-17-85 166,666.67 166,666.67 -0- 166,666.67 -0-
Jimmie H. Harvey, M.D. 333,333.34 333,333.34 -0- 333,333.34 -0-
Hilliard Limited
Partnership 200,000 200,000 -0- 200,000 -0-
Dan Hilliard 333,333.33 133,333.33 200,000 133,333.33 200,000
Wallace J. Hilliard
Flint Trust 133,333.33 133,333.33 -0- 133,333.33 -0-
Paul Klister 33,333.33 33,333.33 -0- 33,333.33 -0-
Jefferson R. Cobb 100,000.00 100,000.00 -0- 100,000.00 -0-
</TABLE>
<PAGE> 1
EXHIBIT 1. POWERS OF ATTORNEY
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 2
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
/s/ ROBERT E. WOODS
--------------------------------------------
Robert E. Woods
WITNESSES:
/s/ THOMAS TRIPP
- -------------------------------------------
Name
5315 Saddle Rock Road, Butte, MT 59701
- -------------------------------------------
Street Address, City and State
/s/ MARCIA K. TRIPP
- -------------------------------------------
Name
35 Indian Forest Road, Pelham, AL 35124
- -----------------------------------------
Street Address, City and State
<PAGE> 3
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 4
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 23 day of November, 1998.
/s/ JEFFERSON R. COBB
--------------------------------------------
Jefferson R. Cobb
WITNESSES:
/s/CAROLYN SHUPP
- -------------------------------------------
Name
1400 Urban Center Drive 415, Birmingham, AL 35242
- -------------------------------------------------
Street Address, City and State
/s/ CHERYL REITZ
- -------------------------------------------
Name
1400 Urban Center Drive, Suite 415, Birmingham, AL 35242
- --------------------------------------------------------
Street Address, City and State
<PAGE> 5
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 6
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 23 day of November, 1998.
/s/ JIMMIE H. HARVEY, M.D.
--------------------------------------------
Jimmie H. Harvey, M.D.
WITNESSES:
/s/ CAROLYN SHUPP
- -------------------------------------------
Name
1400 Urban Center Drive 415, Birmingham, AL 35242
- -------------------------------------------------
Street Address, City and State
/s/ CHERYL REITZ
- -------------------------------------------
Name
1400 Urban Center Drive, Suite 415, Birmingham, AL 35242
- --------------------------------------------------------
Street Address, City and State
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 8
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 23 day of November, 1998.
/s/ JIMMIE H. HARVEY, M.D.
--------------------------------------------
FBO JIMMIE H. HARVEY, M.D.
BIRMINGHAM HEMATOLOGY & ONCOLOGY
ASSOCIATES, SLB FLEX PROTOTYPE
P/S PLAN DTD 10-17-85
WITNESSES:
/s/ CAROLYN SHUPP
- -------------------------------------------
Name
1400 Urban Center Drive 415, Birmingham, AL 35242
- -------------------------------------------------
Street Address, City and State
/s/ CHERYL REITZ
- -------------------------------------------
Name
1400 Urban Center Drive, Suite 415, Birmingham, AL 35242
- --------------------------------------------------------
Street Address, City and State
<PAGE> 9
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 10
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 23 day of November, 1998.
/s/ BRYAN B. STARR, JR.
--------------------------------------------
Bryan B. Starr, Jr.
WITNESSES:
/s/ CAROLYN E. SHUPP
- -------------------------------------------
Name
1400 Urban Center Drive 415, Birmingham, AL 35242
- -------------------------------------------------
Street Address, City and State
/s/ CHERYL REITZ
- -------------------------------------------
Name
1400 Urban Center Drive, Suite 415, Birmingham, AL 35242
- --------------------------------------------------------
Street Address, City and State
<PAGE> 11
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 12
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 23 day of November, 1998.
/s/ BRYAN B. STARR, SR.
--------------------------------------------
Bryan B. Starr, Sr.
WITNESSES:
/s/ CAROLYN E. SHUPP
- -------------------------------------------
Name
1400 Urban Center Drive 415, Birmingham, AL 35242
- -------------------------------------------------
Street Address, City and State
/s/ CHERYL REITZ
- -------------------------------------------
Name
1400 Urban Center Drive, Suite 415, Birmingham, AL 35242
- --------------------------------------------------------
Street Address, City and State
<PAGE> 13
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 14
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
/s/ JOHN W. EAKIN
--------------------------------------------
John W. Eakin
WITNESSES:
/s/ KAREN M. FORBES
- -------------------------------------------
Name
2100 West End #950, Nashville, TN 37203
- -------------------------------------------
Street Address, City and State
/s/ R. GARY LAIN
- -------------------------------------------
Name
2100 West End #950, Nashville, TN 37203
- -------------------------------------------
Street Address, City and State
<PAGE> 15
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 16
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
/s/ MARCIA K. TRIPP
--------------------------------------------
Marcia K. Tripp
WITNESSES:
/s/ THOMAS TRIPP
- -------------------------------------------
Name
5315 Saddle Rock Road, Butte, MT 59701
- -------------------------------------------
Street Address, City and State
/s/ ROBERT E. WOODS
- -------------------------------------------
Name
922 10th St. SW, Alabaster, AL 35007
- -------------------------------------------
Street Address, City and State
<PAGE> 17
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 18
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
WAYNE PATRICK TRIPP TRUST
By:/s/ MARCIA K. TRIPP
-----------------------------------------
Its: TRUSTEE
---------------------------------------
WITNESSES:
/s/ THOMAS TRIPP
- -------------------------------------------
Name
5315 Saddle Rock Road, Butte, MT 59701
- -------------------------------------------
Street Address, City and State
/s/ ROBERT E. WOODS
- -------------------------------------------
Name
922 10th St. SW, Alabaster, AL 35007
- -------------------------------------------
Street Address, City and State
<PAGE> 19
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 20
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
LISA MARIE TRIPP TRUST
By:/s/ MARCIA K. TRIPP
-----------------------------------------
Its: TRUSTEE
---------------------------------------
WITNESSES:
/s/ THOMAS TRIPP
- -------------------------------------------
Name
5315 Saddle Rock Road, Butte, MT 59701
- -------------------------------------------
Street Address, City and State
/s/ ROBERT E. WOODS
- -------------------------------------------
Name
922 10th St. SW, Alabaster, AL 35007
- -------------------------------------------
Street Address, City and State
<PAGE> 21
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 22
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
/s/ PAUL A. KLISTER
--------------------------------------------
Paul Klister
WITNESSES:
/s/ ROBIN L. DREES
- -------------------------------------------
Name
2212 W. Seneca Dr., Appleton, WI 54914
- -------------------------------------------
Street Address, City and State
/s/ KATHRYN A. DALIBEOUX
- -------------------------------------------
Name
909 Greenridge Dr., Green Bay, WI 54313
- -------------------------------------------
Street Address, City and State
<PAGE> 23
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 24
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
/s/ STEVEN FRANCIS TRIPP
--------------------------------------------
Steven Francis Tripp
WITNESSES:
/s/ RACHEL TRIPP
- -----------------------------------------------
Name
2021 Brook Highland Ridge, Birmingham, AL 35242
- -----------------------------------------------
Street Address, City and State
/s/ ROBERT E. WOODS
- -----------------------------------------------
Name
922 10th St. SW, Alabaster, AL 35007
- -----------------------------------------------
Street Address, City and State
<PAGE> 25
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 26
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
/s/ ROBERT ROLFE
--------------------------------------------
Robert O. Rolfe
WITNESSES:
/s/ JOHN T. STARCHER
- -------------------------------------------
Name
7063 Coles Ferry Pike, Lebanon, TN
- -------------------------------------------
Street Address, City and State
/s/ CAROL ROBINSON
- -------------------------------------------
Name
401 Hickory Lake Drive, Nashville, TN
- -------------------------------------------
Street Address, City and State
<PAGE> 27
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 28
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 24 day of November, 1998.
/s/ ROBERT A. WEYERS
--------------------------------------------
Ronald A. Weyers
WITNESSES:
/s/ GLORIA J. LAVIOLETTE
- -------------------------------------------
Name
2759 Van Beek Road, Green Bay, WI 54311
- -------------------------------------------
Street Address, City and State
/s/ JEFFREY J. WEYERS
- -------------------------------------------
Name
2131 Sweetwater Ct., Green Bay, WI
- -------------------------------------------
Street Address, City and State
<PAGE> 29
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 30
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
/s/ JEFFREY J. WEYERS
--------------------------------------------
Jeffrey J. Weyers
WITNESSES:
/s/ THOMAS W. WEYERS
- -------------------------------------------
Name
3211 Tuckaway Ct., Green Bay, WI 54301
- -------------------------------------------
Street Address, City and State
/s/ GLORIA J. LAVIOLETTE
- -------------------------------------------
Name
2759 Van Beek Road, Green Bay, WI 54311
- -------------------------------------------
Street Address, City and State
<PAGE> 31
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 32
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
/s/ ROBERT WEYERS
--------------------------------------------
Robert J. Weyers
WITNESSES:
/s/ JEFFREY J. WEYERS
- -------------------------------------------
Name
2131 Sweetwater Ct., Green Bay, WI
- -------------------------------------------
Street Address, City and State
/s/ GLORIA J. LAVIOLETTE
- -------------------------------------------
Name
2759 Van Beek Rd., Green Bay, WI 54311
- -------------------------------------------
Street Address, City and State
<PAGE> 33
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 34
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
/s/ MATTHEW A. KING
--------------------------------------------
Matthew A. King
WITNESSES:
/s/ HAYLEY MERPHIS
- -------------------------------------------
Name
523 Doral Country Dr., Nashville, TN
- -------------------------------------------
Street Address, City and State
DANA L. GOSSMAN
- -------------------------------------------
Name
907 Banner Drive, Murfreesboro, TN 37129
- -------------------------------------------
Street Address, City and State
<PAGE> 35
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 36
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
HILLIARD LIMITED PARTNERSHIP
/s/ DAN HILLIARD
--------------------------------------------
By: /s/ DAN HILLIARD
----------------------------------------
Its: GENERAL PARTNER
---------------------------------------
WITNESSES:
/s/ JULIE I. DEBAUCHE
- -------------------------------------------
Name
840 Willard Drive, Green Bay, WI
- -------------------------------------------
Street Address, City and State
/s/ NEAL J. MACCOUX
- -------------------------------------------
Name
396 Windwood Rd., Green Bay, WI 54302
- -------------------------------------------
Street Address, City and State
<PAGE> 37
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 38
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 19 day of November, 1998.
WALLACE J. HILLIARD FLINT TRUST
/s/ DAN HLLIARD
--------------------------------------------
By: /s/ DAN HILLIARD
----------------------------------------
Its: TRUSTEE
---------------------------------------
WITNESSES:
/s/ JULIE I. DEBAUCHE
- -------------------------------------------
Name
840 Willard Drive, Green Bay, WI
- -------------------------------------------
Street Address, City and State
/s/ NEAL J. MACCOUX
- -------------------------------------------
Name
396 Windwood Rd., Green Bay, WI 54302
- -------------------------------------------
Street Address, City and State
<PAGE> 39
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT:
The undersigned does hereby constitute and appoint M. Williams
Goodwyn, Jr. and James W. Childs, Jr., or either of them, as my attorney-in-fact
(the "Attorney") for the purpose and with the powers hereinafter stated:
To prepare or cause to be prepared, execute and file a
Schedule 13D (including all amendments thereto) with the Securities and Exchange
Commission, Washington, D.C., and to prepare or cause to be prepared, execute
and file such supporting, supplemental or additional schedules, statements,
documents, papers, instruments, agreements and exhibits as my Attorney shall
deem necessary or incidental to effecting such filing or as my Attorney shall
deem appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file all other
schedules and statements (including all amendments thereto) with the Securities
and Exchange Commission, Washington, D.C., as my Attorney shall deem necessary,
appropriate or desirable, and to prepare or cause to be prepared, execute and
file such supporting supplemental or additional schedules, statements,
documents, papers, instruments, agreements, and exhibits as my Attorney shall
deem necessary or incidental to such filing or as my Attorney shall deem
appropriate or desirable in connection with effecting such filing.
To prepare or cause to be prepared, execute and file with the
appropriate regulatory authority or entity, including, without limitation, any
Securities Commission of any state, such additional schedules, statements,
agreements, documents, instruments or papers (including all amendments and
supplements thereto) as my Attorney shall deem necessary or as my Attorney shall
deem appropriate or desirable in connection with effecting any of the foregoing.
The undersigned hereby directs that no person who may have any
dealing with my Attorney shall be under any duty to notice, or to inquire into,
the actual power or authority of my Attorney to do anything which my Attorney
may undertake to do in an effort to exercise any power herein conferred; nor
shall any such person be under any duty to see to, or make inquiry about, the
proper discharge by my Attorney of the power herein conferred.
<PAGE> 40
IN WITNESS WHEREOF, the undersigned has executed this instrument as of
this 23 day of November, 1998.
/s/ DAN HLLIARD
--------------------------------------------
Dan Hilliard
WITNESSES:
/s/ NEAL J. MACCOUX
- -------------------------------------------
Name
396 Windward Rd., Green Bay, WI 54302
- -------------------------------------------
Street Address, City and State
/s/ JULIE DEBAUCHE
- -------------------------------------------
Name
840 Willard Drive, Green Bay, WI 54304
- -------------------------------------------
Street Address, City and State
<PAGE> 1
Exhibit 2. Form of Note
THIS CONVERTIBLE SECURED NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT") AND IS A RESTRICTED SECURITY AS THAT TERM IS DEFINED IN RULE
144 UNDER THE ACT. THIS CONVERTIBLE SECURED NOTE MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
ACT, THE AVAILABILITY OF WHICH IS TO BE ESTABLISHED TO THE REASONABLE
SATISFACTION OF THE COMPANY.
CONVERTIBLE SECURED NOTE
${_____} November ____, 1998
FOR VALUE RECEIVED, Spatialight, Inc., a corporation organized and
existing under the laws of the State of New York (the "Company"), hereby
promises to pay to {_____} ("Payee") the principal sum of ${_____}, or so much
thereof as shall have been funded in accordance with the Convertible Secured
Loan Agreement dated of even date herewith, among the Company, Payee and Others
(the "Loan Agreement") on December 31, 1998 or such earlier or later date as
this Note shall become due by lapse of time, acceleration, extension or
otherwise, as provided herein (the "Maturity Date"), with interest on the
principal sum hereof, as set forth below in Paragraph 1. This Note is one of a
series of Convertible Secured Notes ("Convertible Notes") issued on the date
hereof pursuant to the Loan Agreement in an aggregate principal amount not to
exceed Two Million Dollars ($2,000,000) (the "Convertible Note Series").
1. Payment of Interest. This Note will bear interest at the rate
of six percent (6%) per annum. Interest shall be compounded quarterly. Interest
shall be payable on the Maturity Date. At the option of the Payee, any interest
due and payable hereunder, shall be paid by the issuance of such common stock of
the Company having a Market Value equal to the amount of interest due hereunder.
For purposes of the preceding sentence, the term "Market Value" shall mean the
average public trading price for such common stock for (i) the ten (10) previous
trading days, if at least five (5) trades have occurred during such ten trading
days, or if not, (ii) the previous ten (10) trades.
2. Repayment of Principal. Payment on the principal balance of
this Note will be made on the Maturity Date. The Company shall have no right to
pre-pay any portion of this Note.
3. Extension of Maturity Date.
(a) The Company, at its option, to be exercised by
written notice to the Payee given no less than ten (10) days and no more than
forty (40) days prior to December 31, 1998, may extend the Maturity Date to
December 31, 1999; provided, however, that at the time of the giving of Notice
of such extension, the following conditions have been met:
(i) In the event that the Maturity Date is
extended by the Company in accordance with this Paragraph 3, the Company shall
have paid to the Payee all interest accrued (and that will accrue) on the
principal amount outstanding hereunder from time to time, through December 31,
1998.
<PAGE> 2
(ii) On or before the date of exercise of this
option to extend the maturity date (the "Exercise Date") the Company has
developed and demonstrated a fully functioning projection display unit,
including the following components: (i) 1024 x 768 Spatial Light Modulator, (ii)
lamp; (iii) mirror; (iv) polarizer, (v) lens; (vi) screen; and (vii) projection
display case.
(iii) On or before the Exercise Date, the Company
has entered into one or more written agreements under which the Company can
reasonably be expected to generate not less than $250,000 in revenue for the
period beginning on any date after the date hereof and continuing through
December 31, 1999.
(b) In the event that the Maturity Date is extended by
the Company in accordance with this Paragraph 3, then, at the request of Lender,
Company shall retain at its expense (provided that the fees are reasonable) Dr.
Urbach to conduct a comprehensive review of, and prepare a report on (the
"Report"), the defensive and offensive action plan that optimizes the future
intellectual property position of the Company.
4. Conversion Rights.
(a) Conversion. Payee may at any time and from time to
time, at Payee's option, subject to the terms and conditions hereinafter set
forth, convert all or part of the unpaid principal of this Note into fully paid
and nonassessable shares of common stock, $.01 par value, of the Company (the
"Common Shares"), at the Conversion Price (as hereinafter defined in effect on
the Conversion Date (as hereinafter defined)). Accrued and unpaid interest on
this Note is not subject to conversion pursuant to this Paragraph 4. In the
event Payee converts all or any part of the unpaid principal of this Note
pursuant to this Paragraph 4, the Company shall pay to Payee in immediately
available funds or, at Payee's option, in Common Shares as provided in Paragraph
1, above, all accrued and unpaid interest to the Conversion Date (as defined
below); provided, however, that upon any partial conversion of this Note, the
Company shall pay to Payee only the accrued and unpaid interest attributable to
that portion of the principal actually converted.
(b) Conversion Price. The conversion price (the
"Conversion Price") at which Common Shares will initially be issuable upon
conversion of this Note will be seventy-five cents ($0.75) per Common Share. The
Conversion Price will be subject to adjustment as provided in Paragraph 4(f)
below.
(c) Method of Conversion. To convert, Payee must
surrender this Note to the Company at any time during usual business hours at
the Company's principal office at 8-C Commercial Blvd., Novato, California
94949-5759 (or at such other location designated in a written notice given by
the Company to Payee), accompanied by a written conversion notice substantially
in the form attached hereto as Annex I (the "Written Conversion Notice") duly
executed by Payee or its attorney duly authorized in writing. Any such
conversion will be deemed to have been made as of the day that this Note is
surrendered, accompanied by the Written Conversion Notice, or if such date is
not a business day, the next succeeding business day (the "Conversion Date").
The rights of Payee in and to the principal of this Note so converted, when
surrendered for conversion, will cease as of the Conversion Date and Payee will
thereafter be deemed to be the record holder of the Common Shares received by
him upon conversion. Any partial conversion of this Note must be in multiples of
Twenty-Five Thousand Dollars ($25,000) principal amount unless otherwise agreed
by the Company.
<PAGE> 3
(d) Delivery of Certificates; Remainder Note. As promptly
as practicable after the Conversion Date, the Company will deliver or cause to
be delivered to Payee certificates representing the number of fully paid and
nonassessable Common Shares into which this Note has been converted. In the
event of a partial conversion, the Company will reissue a Note to Payee in the
amount of the remaining principal balance of this Note and all accrued and
unpaid interest on the remaining principal balance of the Note will remain
outstanding and will be payable in accordance with Paragraph 1 hereof.
(e) No Dividend Adjustment. No adjustments in respect to
cash dividends paid by the Company out of its earnings on the Common Shares
prior to the conversion of this Note will be made.
(f) Adjustment of Conversion Price. The Conversion Price
will be subject to adjustment from time to time as follows:
(i) Common Shares Issued at Less Than the
Effective Conversion Price. If the Company issues any Common Shares other than
Excluded Shares (as defined below) (the "Additional Common Shares") without
consideration or for a consideration per share less than the Conversion Price in
effect immediately prior to such issuance (the "Effective Conversion Price"),
the Conversion Price shall be reduced to a Price determined by multiplying the
Effective Conversion Price by a fraction (A) the numerator of which shall be the
sum of (1) the number of Common Shares outstanding immediately prior to such
issuance (including the Common Shares issuable upon the conversion of any notes
outstanding as of the date hereof to Argyle Capital Management Corporation) plus
(2) the number of Common Shares that the aggregate consideration received by the
Company for the total number of Additional Common Shares so issued would
purchase at such Effective Conversion Price and (B) the denominator of which
shall be the number of Common Shares outstanding immediately prior to such
issuance (including the Common Shares issuable upon the conversion of any notes
outstanding as of the date hereof to Argyle Capital Management Corporation) plus
the number of Additional Common Shares so issued. For purposes of this
Subparagraph 4(f), the term "Common Shares" shall mean, collectively, all Common
Shares of the Company, and any security of the Company now outstanding or
hereafter issued by the Company which is convertible or exchangeable into any
class of Common Shares.
(ii) Certain Adjustment Factors. For the purposes
of any adjustment of the Conversion Price pursuant to subparagraph (f)(i) above,
the following provisions shall be applicable:
(A) Cash. In the case of the issuance
of Common Shares for cash, the amount of the consideration received by the
Company shall be deemed to be the amount of the cash proceeds received by the
Company for such Common Shares before deducting therefrom (y) any discounts,
commissions, taxes or other expenses allowed, paid or incurred by the Company
for any underwriting or otherwise in connection with the issuance and sale
thereof and (z) any amount paid or payable for accrued interest or accrued
dividends; and
(B) Consideration Other Than Cash. In
the case of the issuance of Common Shares (other than upon the conversion of
shares of capital shares or other securities of the Company) for consideration
in whole or in part other than cash, including securities acquired in exchange
therefor (other than securities by their terms so exchangeable), the
consideration other than
<PAGE> 4
cash shall be deemed to be the fair value thereof (as determined by the Board of
Directors of the Company, whose determination shall be reasonable), irrespective
of any accounting treatment; provided that such fair value as determined by the
Board of Directors shall not exceed the aggregate Market Value of the Common
Shares being issued as of the date the Board of Directors authorizes the
issuance of such Common Shares; and
(C) Options and Convertible Securities.
In the case of the issuance of (x) options, warrants or other rights to purchase
or acquire Common Shares (whether or not exercisable immediately following such
issuance), other than 875,000 Common Shares, as equitably adjusted, to be
reserved for issuance under an equity incentive or similar plan of the Company,
(y) securities by their terms convertible into Common Shares or exchangeable for
Common Shares immediately following such issuance, or (z) options, warrants or
rights to purchase such convertible or exchangeable securities (whether or not
exercisable immediately following such issuance):
(1) the aggregate maximum
number of Common Shares deliverable upon exercise of such options, warrants or
other rights to purchase or acquire Common Shares shall be deemed to have been
issued at the time such options, warrants or other rights become exercisable and
for a consideration equal to the consideration (determined in the manner
provided in clauses (A) and (B) above), if any, received by the Company upon the
issuance of such options, warrants or other rights plus the minimum purchase
price provided in such options, warrants or other rights for the Common Shares
covered thereby;
(2) the aggregate maximum
number of Common Shares deliverable upon conversion of or in exchange for any
such convertible or exchangeable securities, or upon the exercise of options,
warrants or other rights to purchase or acquire such convertible or exchangeable
securities and the subsequent conversion or exchange thereof, shall be deemed to
have been issued at the time such securities become convertible or exchangeable
or such options, warrants or other rights become exercisable and for a
consideration equal to the consideration, if any, received by the Company for
any such securities and related options, warrants or other rights (excluding any
cash received on account of accrued interest or accumulated dividends), plus the
additional consideration, if any, to be received by the Company upon the
conversion or exchange of such securities and the exercise of any related
options, warrants or other rights (the consideration in each case to be
determined in the manner provided in clauses (A) and (B) above);
(3) on any change in the
number of Common Shares deliverable upon exercise of any such options, warrants
or rights or conversion or exchange of such convertible or exchangeable
securities or any change in the consideration to be received by the Company upon
such exercise, conversion or exchange, including, but not limited to, a change
resulting from any subdivision, split-up, combination or reclassification
thereof, the Conversion Price as then in effect shall forthwith be readjusted to
such Conversion Price as would have been obtained had an adjustment been made
upon the issuance of such options, warrants or rights not exercised prior to
such change, or of such convertible or exchangeable securities not converted or
exchanged prior to such change, upon the basis of such change;
(4) on the expiration or
cancellation of any such options, warrants or other rights, or the termination
of the right to convert or exchange such convertible or exchangeable securities,
if the Conversion Price shall have been adjusted upon such becoming exercisable,
convertible or exchangeable, such Conversion Price shall forthwith he readjusted
to such
<PAGE> 5
Conversion Price as would have been obtained had an adjustment been made upon
such options, warrants or other rights becoming exercisable or securities
becoming convertible or exchangeable on the basis of the issuance of only the
number of Common Shares actually issued upon the exercise of such options,
warrants or other rights, or upon the conversion or exchange of such securities;
and
(5) if the Conversion Price
shall have been adjusted upon such options, warrants or other rights becoming
exercisable or such convertible or exchangeable securities becoming convertible
or exchangeable, no further adjustment of the Conversion Price shall be made for
the actual issuance of Common Shares upon the exercise, conversion or exchange
thereof.
(iii) Excluded Shares. "Excluded Shares" shall
mean (A) any shares issued to all holders of the Company's Common Shares
pursuant to a stock dividend, subdivision or split-up of such shares; (B)
issuances pursuant to awards granted for up to 875,000 Common Shares, as
equitably adjusted, under an equity incentive or similar plan of the Company;
(C) issuances upon the conversion of this Note or any other Convertible Note, or
any Convertible Note reissued upon conversion, in part, of the outstanding
principal on this Note or on any other Convertible Note reissued upon
conversion; (D) issuances upon the exercise of the notes, warrants or other
securities listed on Schedule 4(f)(iii).
(iv) Stock Dividends: Stock Splits, etc. If the
number of Common Shares outstanding is increased by a stock dividend payable in
Common Shares or by a subdivision or split-up of Common Shares, then immediately
after the record date fixed for the determination of holders of Common Shares
entitled to receive such stock dividend or the effective date of such
subdivision or such split-up, as the case may be, the Conversion Price shall be
appropriately adjusted so that Payee will be entitled to receive the number of
Common Shares of the Company which Payee would have owned immediately following
such action had all of the unpaid principal of this Note been converted
immediately prior thereto.
(v) Combination of Shares. If the number of
Common Shares outstanding is decreased by a combination of the outstanding
Common Shares, immediately after the effective date of such combination, the
Conversion Price shall be appropriately increased so that Payee will be entitled
to receive the number of Common Shares of the Company which Payee would have
owned immediately following such action had all of the unpaid principal of this
Note been converted immediately prior thereto.
(vi) Reorganizations, Etc. In the case of any
capital reorganization of the Company, any reclassification of Common Shares,
the consolidation of the Company with or the merger of the Company with or into
any other entity (other than a reorganization or merger solely for the purpose
of a change in the state of incorporation of the Company) or the sale, lease or
other transfer of all or substantially all of the assets of the Company to any
other person or entity, all or part of the unpaid principal of this Note will
after such capital reorganization, reclassification, consolidation, merger,
sale, lease or other transfer be convertible into the number of shares of
capital shares or other securities or property to which the Common Shares
issuable (at the time of such capital reorganization, reclassification,
consolidation, merger, sale, lease or other transfer) upon conversion of this
Note would have been entitled upon such capital reorganization,
reclassification, consolidation, merger, sale, lease or other transfer. The
subdivision or combination of Common Shares issuable upon conversion of this
Note into a greater or lesser number of Common Shares
<PAGE> 6
(whether with or without par value) shall not be deemed to be a reclassification
of the Common Shares of the Company for the purposes of this clause (vi).
(vii) Evidence of Indebtedness or Assets. In case
the Company shall declare a distribution payable in securities of any other
individual, corporation, partnership, association, trust or other entity or
organization, including any government or political subdivision or any agency or
instrumentality thereof ("Person"), evidences of indebtedness issued by the
Company or other Persons or assets (excluding cash dividends or dividends
payable solely in Common Shares) then, in each such case, Payee shall be
entitled to receive a proportionate share of any such distribution as if the
entire unpaid principal of this Note had been converted into Common Shares as of
the record date for the determination of holders entitled to receive such
distribution.
(viii) Rounding of Calculations: Minimum
Adjustment. All calculations under this subparagraph (f) shall be made to the
nearest cent or to the nearest one-hundredth (1/100th) of a share, as the case
may be. Any provision of this Paragraph 4 to the contrary notwithstanding, no
adjustment in the Conversion Price shall be made if the amount of such
adjustment would be less than one cent ($0.01), but any such amount shall be
carried forward and an adjustment with respect thereto shall be made at the time
of, and together with, any subsequent adjustment which, together with such
amount and any other amount or amounts so carried forward, shall aggregate one
cent ($0.01) or more.
(ix) Applicable Adjustment. In any case in which
two or more separate provisions of this subparagraph (f) shall require an
adjustment to the Conversion Price, the applicable adjustment shall be the
largest adjustment lowering the Conversion Price resulting from the application
of any and all appropriate provisions of this subparagraph (f) to such event.
(g) Statement Regarding Adjustments. Whenever the
Conversion Price is adjusted as herein provided, the Company shall compute the
adjusted Conversion Price in accordance with this Paragraph 4 and shall prepare
a certificate signed by the Treasurer of the Company setting forth the adjusted
Conversion Price and the facts requiring such adjustment, and such certificate
shall forthwith be delivered to Payee.
(h) Return/Cancellation. This Note, when surrendered for
conversion as herein provided in this Paragraph 4, (i) if the entire outstanding
principal balance of this Note is converted, will be canceled and no longer
deemed to be outstanding and all rights with respect to this Note will forthwith
cease and terminate, except the right of Payee to receive Common Shares in
exchange therefor, or (ii) if less than the entire outstanding principal balance
of this Note is converted, the Company will reissue a Convertible Note to Payee
in an amount equal to the remaining principal balance of this Convertible Note.
(i) Reservation of Shares. The Company will at all times
reserve and keep available, free from preemptive rights, out of its treasury
shares or its authorized but unissued Common Shares, for the purpose of
effecting the conversion of this Note, the full number of shares of Common
Shares then deliverable upon the conversion of this Note.
(j) Valid Issuance. All Common Shares that may be issued
upon conversion of this Note will upon issuance by the Company be duly and
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issuance thereof, and the
<PAGE> 7
Company will take no action which will cause a contrary result (including,
without limitation, any action which would cause the Conversion Price to be less
than the par value of the Common Shares).
(k) Legends. Each certificate for Common Shares issued
upon the conversion of this Note will be stamped or otherwise imprinted with a
legend in substantially the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") OR ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH.
The foregoing legend will be removed from the certificates representing Common
Shares, at the request of the holder of such shares, at such time as they become
registered under the Act or eligible for resale pursuant to Rule 144(k) under
the Act.
5. Events of Default. The following events shall be deemed an
event of default under this Note (each, an "Event of Default"):
(a) A failure in the payment of any installment of
interest or principal on this Note or any part thereof on the date the same is
due which failure continues uncured for a period of at least ten (10) days;
(b) A failure in the payment of any interest or principal
on any other obligation of the Company owed to the Senior Lenders (as such term
is defined in that certain Intercreditor Agreement of even date herewith) on the
date the same is due which failure continues uncured for a period of least ten
(10) days;
(c) The Company (i) admits in writing its inability to
pay its debts as they come due, or makes a general assignment for the benefit of
its creditors; (ii) commences any case, proceeding or other action seeking
reorganization, arrangement, adjustment, liquidation, dissolution or composition
of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeks appointment of a receiver,
trustee, custodian or other similar official for it or for all or any
substantial part of its property; or (iii) takes any corporate action to
authorize any of the actions set forth above in this Paragraph (5)(c);
(d) Any case, proceeding or other action against the
Company is commenced seeking to have an order for relief entered against the
Company as debtor, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of the Company or its debts under any
law relating to bankruptcy, insolvency, reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, custodian or other similar official
for it or for all or any substantial part of its property, and such case,
proceeding or other action remains undismissed for a period of ninety (90) days;
(e) The Company breaches, in a material respect, or fails
to perform any material provision or covenant of this Note (other than the
payment of any installment of interest on this Note or any part thereof on the
date the same is due, which event is provided for in Paragraph 5(a)), which
<PAGE> 8
breach or failure to perform is not cured within fifteen (15) days of receipt of
written notice thereof from Payee to the Company;
(f) The Company breaches, in a material respect, or fails
to perform any material covenant, condition or other provision of the Loan
Agreement, or of any other Loan Document (as defined in the Loan Agreement),
which breach or failure to perform is not cured within fifteen (15) days of
receipt of written notice thereof from Payee to the Company;
(g) Any change in the Company's financial condition,
prospects or operations (including, without limitation, the continued validity
of all patents and trademarks described in Schedule 4.9(a) to the Loan
Agreement) which: (a) has or reasonably could be expected to have any material
adverse effect upon the validity or enforceability of any material provision of
this Note, the Loan Agreement, or any other Loan Document (as defined in the
Loan Agreement); (b) is or could reasonably be expected to be material and
adverse to the condition (financial or otherwise) or business operations of the
Company; (c) materially impairs or could reasonably be expected to materially
impair the value of any or all of the Collateral (as defined in the Security
Agreement referred to in Paragraph 7 below) or the priority of Payee's security
interest in the Collateral; or (d) materially impairs, or could reasonably be
expected to materially impair the ability of Payee to enforce any of its legal
remedies pursuant to this Note, the Loan Agreement, or any Loan Document;
(h) The death, total disability or resignation or removal
of Robert Olins from the board of directors of the Corporation;
(i) The failure of the Company to commence, on or before
December 31, 1998 the process of auditing the books and records of the Company
for the year ended December 31, 1997, or deliver to the Payee on or before March
31, 1999, (i) audited consolidated financial statements of the Company
(including any related notes and schedules thereto) for the fiscal years ended
December 31, 1997, and December 31, 1998, respectively, and with respect to the
audited consolidated financial statements as of December 31, 1997, such
financial statements are not different in any materially adverse way from the
unaudited consolidated financial statements included in the Company's Annual
Report on Form 10KSB for the fiscal year ended December 31, 1997 and (ii) a
certified report by the Company's auditors detailing the capitalization of the
Company as of December 31, 1997 (including, but not limited to, the number of
Common Shares, preferred shares, options, warrants or other equity instruments
issued by the Company) as well as a verification of the Company's liabilities as
of June 30, 1998; and
(j) For any calendar quarter beginning after December 31,
1998, the Company's actual revenues are less than seventy-five percent (75%) of
the projections set forth in the Spatialight, Inc. Financial Projections dated
November 11, 1998, and previously delivered to Payee.
Upon the occurrence of an Event of Default, at the election of the
Payee, which election shall be exercised by written notice to the Company, the
entire aggregate principal amount of this Note will become immediately due and
payable, together with all accrued and unpaid interest thereon. Notwithstanding
the foregoing, upon the occurrence of an Event of Default specified in Section
5(d), the entire aggregate principal amount of this Note, together with all
accrued and unpaid interest thereon, shall immediately and without notice become
due and payable without action of any kind on Payee's part.
<PAGE> 9
6. Notice of Liquidating Event; Notice of Event of Default. At
least thirty (30) days prior to any dissolution, liquidation or winding up of
the affairs of the Company, whether voluntary or involuntary, or the sale,
conveyance, exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all of the property and assets of the
Company, or capital shares of the Company, or the consolidation or merger of the
Company with or into any other corporation or corporations or the consolidation
or merger of any other corporation or corporations with or into the Company
(each a "Liquidation Event"), the Company shall give written notice to Payee of
the proposed Liquidation Event. Payee, at its option, may convert this Note
effective upon the occurrence of the Liquidation Event (or such earlier date as
Payee requests), which conversion shall be subject to the Closing of the
transaction that constitutes the Liquidation Event. If Payee does not so convert
this Note, all principal under this Note, together with accrued and unpaid
interest thereon, may be prepaid in full upon the occurrence of the Liquidation
Event. The Company shall give prompt written notice to Payee of the occurrence
of any Event of Default hereunder, and of any event which with the giving of
notice or the passage of time or both would become an Event of Default
hereunder.
7. Security. The full amount of this Convertible Secured Note is
secured by certain collateral (the "Collateral") identified and described as
security therefor in the Security Agreement of even date herewith (the "Security
Agreement"), executed and delivered by the Company. The Company shall not,
directly or indirectly, create, permit, or suffer to exist, and shall defend the
Collateral against and take such other action is necessary to remove, any lien
on or in the Collateral, or in any portion thereof, except as permitted pursuant
to the Security Agreement.
8. Notice; Registered Form. Any notice or communication given
under this Note will be in writing and be hand delivered, mailed by registered
or certified mail, postage prepaid, delivered by facsimile (with a telephonic
confirmation or answer-back) or by overnight courier as follows:
(i) If to Payee:
{_____}
(ii) If to the Company to:
Spatialight, Inc.
8-C Commercial Boulevard
Novato, CA 94949-5759
Attn: Michael H. Burney
Facsimile: (415) 883-3363
or at such other address as hereafter will be furnished in writing by the
addressed party to the other party. Delivery by hand will be deemed given when
personally delivered; delivery by registered or certified mail will be deemed
given three (3) business days after the same is posted; delivery by facsimile
will be deemed given when received; and delivery by overnight courier will be
deemed given the first business day following the date of timely deposit with
such courier.
9. No Recourse. No recourse will be had for the payment of
principal of, or interest on, this Note, or any part thereof, or for any claim
based thereon or otherwise in respect thereof, or for the indebtedness
represented hereby, against any shareholder, officer or director, as such, past,
<PAGE> 10
present or future of the Company, whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all liability, if any, of that character or otherwise
against every such shareholder, officer or director, being, by the purchase or
assignment of this Note, expressly waived and released.
10. Waiver: Modification in Writing. No failure or delay on the
part of Payee in exercising any right, power or remedy hereunder will operate as
a waiver thereof, nor will any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to Payee
at law, in equity or otherwise. Any provision of this Note may be waived by or
on behalf of Payee, and this Note may be amended, provided such waiver or
amendment is approved and signed by the Company and Payee.
11. Governing Law; Choice of Forum. This Note will be deemed to be
a contract made under the laws of the State of New York, and for all purposes
will be construed in accordance with the laws of said state, without regard to
principles of conflicts of law.
12. Severability of Provisions. Any provision of this Note which
is prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
13. Headings. The headings in this Note are for the convenience of
reference only and will not affect the construction of this Note.
<PAGE> 11
IN WITNESS WHEREOF, this Note is executed by a duly authorized officer
of each of the undersigned as of the date and year first above written.
SPATIALIGHT, INC.
By:
---------------------------------
Michael H. Burney
Chief Executive Officer
<PAGE> 1
Exhibit 3. Form of Loan Agreement
SPATIALIGHT, INC.
CONVERTIBLE SECURED LOAN AGREEMENT
CONVERTIBLE SECURED LOAN AGREEMENT dated November ___, 1998 (the
"Agreement"), by and between SPATIALIGHT, INC., a New York corporation (the
"Company") and {_____} (as "Lender").
WHEREAS, Lender together with other lenders have agreed to advance
funds to the Company in an amount not to exceed $2,000,000 (the "Convertible
Secured Loan") evidenced by certain Convertible Secured Notes of even date
herewith (the "Notes") made by the Company in favor of the lenders who are
participating in this Convertible Secured Loan (the lenders are hereinafter
referred to collectively as the "Lenders");
WHEREAS, Lender has agreed to advance ${_____} of the Convertible
Secured Loan;
WHEREAS, Lender's agreement to make such advances is conditioned upon
and subject to the provisions of this Agreement; and
WHEREAS, the Company has reserved for issuance additional shares of its
Common Stock upon the conversion of the Notes.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
SECTION 1
Definitions
1.1 Defined Terms. The following terms are defined as follows:
"Benefit Arrangement" means any benefit arrangement, obligation, custom
or practice, to provide benefits, other than salary, as compensation for
services rendered, other than any obligation, arrangement, custom or practice
that is a Company Benefit Plan, including, without limitation, employment or
change of control agreements, severance agreements, executive compensation
arrangements, incentive programs or arrangements, sick leave, vacation pay,
severance pay policies, plant closing benefits, salary continuation for
disability, consulting, or other compensation arrangements, workers'
compensation, retirement, deferred compensation, bonus, stock option or
purchase, hospitalization, medical insurance, life insurance, tuition
reimbursement or scholarship programs and employee discounts, in each case with
respect to any present or former employees, directors or agents.
"Business Day" means any day other than a Saturday or Sunday on which
commercial banks located in New York, New York are not required or authorized by
law or executive order to close or remain closed.
<PAGE> 2
"Code" means the Internal Revenue Code of 1986 (or any successor
thereto), as amended from time to time.
"Company Benefit Arrangement" means any Benefit Arrangement sponsored
or maintained by the Company or its Subsidiaries or with respect to which the
Company or a Subsidiary has or will have any liability (whether actual,
contingent, direct or indirect) as of the Closing Date (as defined in Section 3
of this Agreement), in each case with respect to any present or former
directors, employees, or agents of the Company or the Subsidiaries.
"Company Plan" means, as of the Closing Date, any Employee Benefit Plan
for which the Company or any Subsidiary has or will have any liability (whether
actual, contingent, direct or indirect).
"Company's Knowledge" or derivations thereof means knowledge of the
members of the board of directors, and the executive officers of the Company.
"Effectiveness Period" means the period commencing on the Closing Date
and ending on the second (2nd) anniversary of the Closing Date.
"Environmental Law" means any foreign, federal, state or local statute,
regulation, ordinance or rule of common law as now or hereafter in effect in any
way relating to the protection of the environment including, without limitation,
the Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. ss.ss. 9601 et seq .), the Hazardous Materials Transportation Act (49
U.S.C. App. ss.ss. 1801 et seq .), the Resource Conservation and Recovery Act
(42 U.S.C. ss.ss. 6901 et seq .), the Clean Water Act (33 U.S.C. ss.ss. 1251 et
seq the Clean Air Act (42 U.S.C. ss.ss. 7401 et seq the Toxic Substances Control
Act (15 U.S.C. ss.ss. 2601 et seq.), the Federal Insecticide, Fungicide, and
Rodenticide Act (7 U.S.C. ss.ss. 136 et seq .), and the Occupational Safety and
Health Act (29 U.S.C.ss.ss. 651 et seq.) and the regulations promulgated
pursuant thereto.
"Event of Default" shall have the meaning ascribed to it in Section 5
of the Notes.
"Hazardous Material" means any substance, material or waste that is
regulated by the United States, the foreign jurisdictions in which the Company
or its Subsidiaries conduct business, or any state or local governmental
authority including, without limitation, petroleum and its by-products,
asbestos, and any material or substance that is defined as a "hazardous waste,"
"hazardous substance," "hazardous material," "restricted hazardous waste,"
"industrial waste," "solid waste," "contaminant," "pollutant," "toxic waste" or
"toxic substance" under any provision of Environmental Law.
"Loan Document" is defined in Section 4.5 hereof.
"Lien" means any lien, pledge, mortgage, deed of trust, security
interest, adverse claim, charge, right of first refusal, easement, transfer
restriction under any shareholder or similar agreement, encumbrance or any other
restriction or limitation whatsoever.
"New Securities" means shares of Common Stock (as defined in Section
4.2 of this Agreement) of the Company and any securities or other rights
convertible or exchangeable into or exercisable for shares of Common Stock,
provided, however, "New Securities" does not include (i)
<PAGE> 3
Common Stock issued or issuable upon conversion of the Notes issued to Lenders;
(ii) securities issued by the Company as part of any public offering pursuant to
an effective registration statement under the Securities Act; (iii) equity
securities issued in connection with any stock split, stock dividend or
recapitalization of the Company; (iv) equity securities issued to management,
directors or employees of the Company pursuant to plans and options to purchase
equity securities issued in accordance with such plans approved by the Board;
(v) securities issued in connection with any merger, acquisition or other
business combination by the Company; (vi) Common Stock issued upon the
conversion of any notes outstanding as of the date hereof to Argyle Capital
Management Corporation, or (vii) any of the Excluded Shares (as defined in
Section 4(f)(iii) of the Notes.
"Notes" is defined in Section 2.1 hereof.
"Permits" means any approvals, authorizations, consents, licenses,
permits or certificates.
"Person" means an individual, partnership, limited liability company,
corporation, joint stock company, trust, unincorporated association, joint
venture or other entity, or a government or any political subdivision or agency
thereof.
"Release" means any release, spill, emission, leaking, pumping,
injection, deposit, disposal, discharge, dispersal or leaching into the indoor
or outdoor environment, or into or out of any property;
"Remedial Action" means all actions to (x) clean up, remove, treat or
in any other way address any Hazardous Material; (y) prevent the Release of any
Hazardous Material so it does not endanger or threaten to endanger public health
or welfare of the indoor or outdoor environment; or (z) perform pre-remedial
studies and investigations or post-remedial monitoring and care.
"Subsidiaries" means each material corporation in which the Company
owns or controls, directly or indirectly, capital stock or other equity
interests representing at least 50% of the outstanding voting stock or other
equity interests.
SECTION 2
Issuance and Terms of Convertible Secured Note
2.1 Convertible Secured Notes. At the closing, the Company will
execute and deliver its Convertible Secured Note, in the form attached hereto as
Exhibit 1, (each a "Note", and collectively with the Notes given to the other
Lenders, the "Notes",) to the Lender, in the principal amount of ${_____}.
2.2 Funding of Convertible Secured Notes. Subject to the
provisions of this Agreement, including satisfaction of the conditions to
Lender's obligations specified in Section 2.7 hereof, the Lender agrees to
release the principal amount of the Note set forth on Exhibit 2 hereto according
to the Funds Release Schedule attached hereto as Exhibit 6. Lender shall not be
required to release the funds described in Exhibit 6 relating to the
demonstration of a fully functioning projection display unit unless and until
the Company and the Holders' Representative (as defined in that certain Note
Holders' Representative Agreement of even date herewith) mutually agree that the
Company has demonstrated a fully functioning projection display unit. In the
event the Company and the Holders'
<PAGE> 4
Representative are unable to so mutually agree, the Company and Lender agree to
submit the dispute to a third party who is an expert in the Company's
technology, and such expert's determination shall be conclusive. Anything in
this Agreement, the Note or any other Loan Document (as defined in Section 4.5
of this Agreement) to the contrary notwithstanding, the Lender shall not be
required to advance any funds hereunder at any time when an Event of Default
exists under this Agreement, the Note, or any other Loan Document, or an event
has occurred or a condition has arisen which, if not cured during any applicable
cure period, will constitute an Event of Default. The obligations of the Lender
to advance any funds hereunder shall forever cease and terminate, in the event
that any Event of Default occurs under this Agreement, the Note, or any other
Loan Document, which is not cured within any applicable cure period provided in
such instrument.
2.3 Use of Proceeds. The Company agrees to use all of the funds
advanced hereunder to pay transaction costs and for working capital purposes.
2.4 Security Agreement. At the Closing, the Company shall execute
and deliver to Lender a Security Agreement in the form attached hereto as
Exhibit 3. Lender may record the executed Security Agreement in the U.S. Patent
and Trademark Office, the U.S. Copyright Office, with any Secretary of State, or
as otherwise appropriate to protect the interests of Lender.
2.5 Intercreditor Agreement. This Agreement is being entered into
by the Lender together with the other Lenders in reliance upon that certain
Intercreditor Agreement between the Lender and Argyle Capital Management
Corporation, a copy of which is attached hereto as Exhibit 4. This Agreement
shall have no force or effect unless or until the said Intercreditor Agreement
is executed by all parties thereto.
2.6 Registration Rights Agreement. At the Closing, the parties
shall enter into a Registration Rights Agreement in the form attached hereto as
Exhibit 5.
2.7 Conditions of Lender's Obligations. The obligation of Lender
to advance funds at the Closing and at any time thereafter under the terms of
this Agreement is subject to the fulfillment of the following conditions:
(a) No Misrepresentation. The representations and
warranties of the Company under this Agreement shall be deemed to have been made
again at the Closing and on the date of any release of funds thereafter and
shall then be true and correct in all material respects.
(b) Compliance with Agreement. The Company shall have
performed and complied in all material respects with all agreements and
conditions required by this Agreement to be performed or complied with by it on
or before the Closing Date.
(c) No Default. There shall not exist an Event of Default
or any event or condition which, with the giving of notice or lapse of time or
both, would constitute an Event of Default.
(d) Qualification Under State Securities Laws. All
registrations, qualifications, permits and approvals required under applicable
state securities laws shall have been obtained for the lawful execution,
delivery and performance of this Agreement, including without limitation the
offer and sale of the Notes.
<PAGE> 5
(e) Closing Documents Delivered by the Company. The
Company shall have delivered to each Lender all of the following documents:
(i) an Officer's Certificate, dated the date of
the Closing, stating that the conditions specified in Subsections (a), (b) and
(c) of this Section 2.7 and have been fully satisfied;
(ii) certified copies of the resolutions duly
adopted by the Company's Board of Directors authorizing the execution, delivery
and performance of this Agreement, the other Loan Documents, the issuance and
sale of the Notes and the consummation of all other transactions contemplated by
this Agreement; and
(iii) copies of the Company's Articles of
Incorporation, with all amendments thereto, and the Company's Bylaws, with all
amendments thereto, each as in effect at the Closing and each certified as a
complete and correct copy by an officer of the Company.
(f) Proceedings and Documents. All corporate and other
proceedings and actions taken in connection with the transactions contemplated
hereby and all certificates, opinions, agreements, instruments and documents
mentioned herein or incident to any such transactions, shall be reasonably
satisfactory in form and substance to each Lender and its special counsel.
(g) Waiver. Any condition specified in this Section 2.7
may be waived if consented to by each Lender; provided that no such waiver will
be effective against any Lender unless it is set forth in a writing executed by
such Lender.
SECTION 3
Closing
The closing of the transactions contemplated in this Agreement (the
"Closing") shall be held at the Company's offices located at 8-C Commercial
Boulevard, Novato, CA 94949 on the date which this Agreement is executed by all
parties, or on such other date or at such other place as Lender and the Company
shall mutually agree (the date of the Closing being referred to herein as the
"Closing Date").
SECTION 4
Representations and Warranties of the Company
The Company hereby represents and warrants as of the date hereof as follows:
4.1 Organization. Good Standing and Qualification. Each of the
Company and its Subsidiaries (i) is an entity duly organized, validly existing
and in good standing under the laws of the jurisdiction of its organization,
(ii) has all requisite power and authority to own its properties and carry on
its business, (iii) is duly qualified to transact business and is in good
standing in all jurisdictions where its ownership, lease or operation of
property or the conduct of its business requires such qualification, except
where the failure to be so qualified would not, and reasonably could not be
expected to, have a material adverse effect on the business, operations, assets,
financial condition, results of operations or business prospects of the Company
and its Subsidiaries (a
<PAGE> 6
"Material Adverse Effect"). The Company has the corporate power and authority
and is in possession of all material franchises, grants, authorizations,
licenses, permits, easements, consents, certificates, approvals and orders to
(i) own, lease and operate its properties and to carry on its business as now
being conducted and (ii) execute and deliver this Agreement and the documents
and instruments contemplated hereby and to consummate the transactions
contemplated hereby.
4.2 Capitalization.
(a) The authorized capital stock of the Company consists
of 20,000,000 shares of common stock, par value $.01 per share ("Common Stock")
of which not more than 11,498,501 shares are issued and outstanding. There are
no shares of preferred stock authorized or outstanding. The Company has reserved
for issuance 2,666,666 shares of Common Stock upon conversion of the Notes.
Except as set forth on Schedule 4.2 hereto, there are no outstanding securities
of the Company convertible into or evidencing the right to purchase or subscribe
for any shares of Common Stock, there are no outstanding or authorized options,
warrants, calls, subscriptions, rights, commitments or any other agreements of
any character obligating the Company to issue any shares of its Common Stock or
any securities convertible into or evidencing the right to purchase or subscribe
for any shares of such stock, and there are no agreements or understandings with
respect to the voting, sale, transfer or registration of any shares of Common
Stock of the Company. No outstanding options, warrants or other securities
exercisable for or convertible into shares of Common Stock require anti-dilution
adjustments by reason of the consummation of the transactions contemplated
hereby.
(b) The issued and outstanding shares of Common Stock are
duly authorized, validly issued, fully paid and nonassessable. The shares of
Common Stock issuable upon conversion of the Notes of the Company, when issued
(i) will be validly issued, fully paid and nonassessable, (ii) will be free and
clear of all Liens and (iii) assuming that the representations of Lender in
Section 5 hereof are true and correct, will be issued in compliance with all
applicable federal and state securities laws.
4.3 Subsidiaries. Schedule 4.3 sets forth a complete and accurate
list of all Subsidiaries of the Company, showing (as to each such Subsidiary)
the date of its incorporation and the jurisdiction of its incorporation. The
Company is the sole stockholder of each Subsidiary. The outstanding shares of
capital stock of each Subsidiary are validly issued, fully paid, and
nonassessable and all such shares represented as being owned by the Company are
owned by it, free and clear of all Liens, other than Liens held by Argyle
Capital Management Corporation and the Lenders. There are no outstanding
securities of any Subsidiary convertible into or evidencing the right to
purchase or subscribe for any shares of capital stock of any Subsidiary, there
are no outstanding or authorized options, warrants, calls, subscriptions,
rights, commitments or any other agreements of any character obligating any
Subsidiary to issue any shares of its capital stock or any securities
convertible into or evidencing the right to purchase or subscribe for any shares
of such stock, and there are no agreements or understanding with respect to the
voting, sale, transfer or registration of any shares of capital stock of any
Subsidiary.
4.4 Partnerships and LLCs. The Company is not a party to, and does
not hold, any equity interests in any partnership, limited partnership or
limited liability company of any kind.
4.5 Authorization. The Company has all requisite corporate power
and authority to execute and deliver this Agreement and each agreement, document
or instrument adopted, entered
<PAGE> 7
into or delivered in connection herewith (the "Loan Documents") and to perform
its obligations hereunder and thereunder. The execution, delivery and
performance of the Agreement and the transactions contemplated hereby and
thereby and the issuance and sale of the Notes have been duly authorized by all
necessary corporate action on the part of the Company. Each Loan Document has
been duly and validly executed and delivered by the Company and constitutes the
legal, valid and binding obligation of the Company, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that rights to
indemnification and contribution under this Agreement may be limited by federal
or state securities laws or public policy relating thereto.
4.6 Consents. Except as set forth in Schedule 4.6, no consent,
approval, order or authorization of, or registration, qualification,
designation, declaration or filing with, any federal, state or local
governmental authority or other Person on the part of the Company is required in
connection with the valid execution and delivery by the Company of the Loan
Documents to which it is a party, or the consummation by the Company of the
transactions contemplated by the Loan Documents to which it is a party.
4.7 Absence of Litigation. Except as set forth in Schedule 4.7 and
outstanding accounts payable, there are no claims, actions, suits, proceedings
or investigations pending or, to the knowledge of the Company, threatened
against the Company or any of its Subsidiaries, or any properties or rights of
the Company or its Subsidiaries, before any court, arbitrator or administrative,
governmental or regulatory authority or body, domestic or foreign, that could
reasonably be expected to have a Material Adverse Effect. The Company has no
knowledge of any unasserted claim, the assertion of which is likely and which,
if asserted, would be reasonably likely to have a Material Adverse Effect.
4.8 Insurance. The Company and its Subsidiaries maintain adequate
insurance with respect to their respective businesses and such policies of
insurance are in full force and effect and the Company and its Subsidiaries are
not in violation of and are in compliance with all material requirements and
provisions thereof. The Company and its Subsidiaries have not been refused any
insurance coverage sought or applied for, and the Company has no reason to
believe that it will be unable to renew its existing insurance coverage upon
terms at least as favorable as those presently in effect, other than possible
increases in premiums that do not result from any act or omission of the Company
or its Subsidiaries.
4.9 Patents and Trademarks. The Company and its Subsidiaries have
sufficient title and ownership of (or rights under license agreements to use)
all patents, trademarks, service marks, trade names, copyrights, trade secrets,
proprietary rights and processes ("Intellectual Property") necessary for the
conduct of their businesses in the ordinary course. Other than the security
interest granted to Argyle Capital Management Corporation in all of the
Corporation's Collateral (as such term is defined in the Security Agreement and
the security interest granted to the Lenders), there are no outstanding options,
licenses or agreements of any kind relating to the foregoing, nor is the Company
or any of its Subsidiaries bound by or a party to any options, licenses or
agreements of any kind with respect to the patents, trademarks, service marks,
trade names, copyrights, trade secrets, proprietary rights or processes of any
other Person. A list of all patents, trademarks, service marks, trade names
<PAGE> 8
and copyrights owned by the Company or any of its Subsidiaries is set forth on
Schedule 4.9(a). Except as set forth on Schedule 4.9(b), since January 1, 1997,
the Company has not received any written or oral communications alleging that
the Company or any of its Subsidiaries has violated or, by conducting its
business as proposed, would violate any of the patents (including pending patent
applications), trademarks, service marks, trade names, copyrights, trade
secrets, proprietary rights or processes of any other Person, nor is the Company
aware of any such violations. The Company is not aware of any infringements or
threatened infringements of the Intellectual Property.
4.10 Compliance with Other Instruments and Legal Requirements.
(a) None of the Company or any of its Subsidiaries is in
violation or default of any provisions of its certificate of incorporation,
by-laws, or comparable organizational documents. None of the Company or any of
its Subsidiaries is in violation or default in any material respect under any
provision, instrument, judgment, order, writ, decree, contract or agreement to
which it is a party or by which it is bound or of any provision of any federal,
state or local statute, rule or regulation applicable to the Company or any of
its Subsidiaries (including, without limitation, any law, rule or regulation
relating to protection of the environment and the maintenance of safe and
sanitary premises). The execution, delivery and performance of each Loan
Document and the consummation of the transactions contemplated hereby and
thereby will not result in any such violation or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a
default under any such provision, instrument, judgment, order, writ, decree,
contract or agreement, or require any consent, waiver or approval thereunder, or
constitute an event that results in the creation of any Lien upon any assets of
the Company or any of its Subsidiaries except as created by the Loan Documents.
(b) The Company and its Subsidiaries have all Permits of
all governmental entities required to conduct their respective businesses as
proposed to be conducted, except to the extent that the failure to have such
Permits would not, and reasonably could not be expected to, have a Material
Adverse Effect.
4.11 Material Agreements; Action. Except as set forth on Schedule
4.11, there are no material contracts, agreements, commitments, understandings
or proposed transactions to which the Company or any of its Subsidiaries is a
party or by which it is bound regarding: (i) any of their respective officers,
directors, stockholders or partners; (ii) the sale of any of the assets of the
Company or any of its Subsidiaries other than in the ordinary course of
business; (iii) covenants of the Company or any of its Subsidiaries not to
compete in any line of business or with any Person in any geographical area or
covenants of any other Person not to compete with the Company or any of its
Subsidiaries in any line of business or in any geographical area; (iv) the
acquisition by the Company or any of its Subsidiaries of any operating business
or the capital stock of any other Person; (v) the borrowing of money; or (vi)
the license or grant of any interest in any of the Intellectual Property or
other material proprietary right to or from the Company or any of its
Subsidiaries except as created by the Loan Documents. To the Company's
knowledge, all such agreements are in full force and effect and are the legal,
valid and binding obligation of the Company or its Subsidiaries, enforceable
against them in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
<PAGE> 9
4.12 Disclosure. To the best of the Company's knowledge, neither
this Agreement nor any of the Loan Documents nor any exhibit hereto, nor any
certificate, or instrument furnished to Lender or its counsel in connection with
the transactions contemplated by this Agreement, when read together, contains or
will contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary in order to make the statements contained herein
or therein, in light of the circumstances under which they are made, not
misleading.
4.13 Registration Rights. Except as set forth in Schedule 4.13, the
Company has not granted or agreed to grant any registration rights, including
piggyback registration rights, to any Person.
4.14 Property. None of the Company or its Subsidiaries owns real
property or interest in real property. The Company and its Subsidiaries have
good and marketable title to all material properties and assets, and the Company
and its Subsidiaries have good title to all of its leasehold interests in each
case subject to no Liens other than those set forth in Schedule 4.14.
4.15 Environmental Matters.
(a) the operations of each of the Company and its
Subsidiaries are in compliance in all material respects with all applicable
Environmental Laws and all Permits issued pursuant to Environmental Laws or
otherwise;
(b) each of the Company and its Subsidiaries has obtained
all Permits required under all applicable Environmental Laws necessary to
operate its business;
(c) neither the Company nor any of its Subsidiaries is
the subject of any outstanding written order, agreement or arrangement with any
governmental authority or Person respecting (i) Environmental Laws, (ii)
Remedial Action or (iii) any Release or threatened Release of a Hazardous
Material;
(d) none of the Company or any of its Subsidiaries has
received any written communication alleging either or both that the Company or
any of its Subsidiaries may be in violation of any Environmental Law, or any
Permit issued pursuant to Environmental Law, or may have any liability under any
Environmental Law;
(e) none of the Company or any of its Subsidiaries has
any known current contingent liability in connection with any Release of any
Hazardous Materials into the indoor or outdoor environment;
(f) there are no investigations of the business,
operations, or currently or previously owned, operated or leased property of the
Company or any of its Subsidiaries pending or, to the Company's Knowledge,
threatened that could lead to the imposition of any liability pursuant to
Environmental Law; and
(g) there is not located at any property leased or
operated by the Company or any of its Subsidiaries any (i) underground storage
tanks, (ii) asbestos containing material in a friable condition or (iii)
equipment containing polychlorinated biphenyls.
<PAGE> 10
4.16 Company SEC Reports and Financial Statements.
(a) Lender has received true and complete copies of all
periodic reports, statements and other documents that the Company has filed with
the Securities and Exchange Commission (the "SEC") under the Securities Exchange
Act of 1934 (the "Exchange Act") since January 1, 1996 (collectively, the
"Company SEC Reports"), each in the form (including exhibits and any amendments
thereto) required to be filed with the SEC. As of their respective dates, and
except as set forth on Schedule 4.16 hereto, each of the Company's SEC Reports
(i) complied in all material respects with all applicable requirements of the
Securities Act of 1933, as amended (the "Securities Act") and the Exchange Act,
and the rules and regulations promulgated thereunder, respectively, (ii) were
filed in a timely manner, and (iii) to the best of the Company's knowledge, did
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. None of the Subsidiaries is required to file any forms, reports or
other documents with the SEC.
(b) Each of the audited consolidated financial statements
of the Company (including any related notes and schedules thereto) included (or
incorporated by reference) in its Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1996, and, to the best of the Company's knowledge, each
of the un-audited consolidated financial statements of the Company (including
any related notes and schedules thereto) include (or incorporated by reference)
in its Annual Report on Form 10-KSB for the fiscal year ended December 31, 1997
and in its Form 10-Q for the period ending March 30, 1998 (and for the period
ending June 30, 1998 if filed prior to Closing), are accurate and complete and
fairly present, and in conformity with the SEC's Regulation S-B, the
consolidated financial position of the Company and its consolidated subsidiaries
as of its date and the consolidated results of operations and changes in
financial position for the period then ended.
4.17 Changes. Except as set forth on Schedule 4.17, since December
31, 1997:
(a) to the best of the Company's knowledge, there have
not been any events or circumstances that could reasonably be expected to have a
Material Adverse Effect;
(b) none of the Company nor any of its Subsidiaries has
(i) declared or paid any dividends, or authorized or made any distribution upon
or with respect to any class or series of its capital stock or equity interests,
(ii) except as set forth on Schedule 4. 17, incurred any indebtedness for money
in excess of $100,000, (iii) made any loans or advances to any Person, other
than ordinary advances for travel expenses not exceeding $5,000, or (iv) sold,
exchanged or otherwise disposed of any of its assets or rights for consideration
in excess of $5,000 in any one transaction or series of related transactions;
and
(c) Company has not issued any options, warrants or other
securities convertible into shares of Common Stock.
4.18 Indebtedness. Neither the Company nor any of its Subsidiary
has any outstanding indebtedness or is a guarantor or is otherwise contingently
liable for any indebtedness except as disclosed on the balance sheet of the
Company dated September 30, 1998 in the Company's Form 10-Q (the "Balance
Sheet"). There exists no material default under the provisions of any instrument
<PAGE> 11
evidencing any Senior Secured Obligations or Subordinate Secured Obligations, as
each such term is defined in that certain Intercreditor Agreement dated even
herewith) or of any agreement relating thereto. The current outstanding
principal balance due to Argyle Capital Management Corporation is no more than
$1,188,000, and interest accrued and unpaid on such debt as of June 30, 1998 is
not more than $32,000.
4.19 Employee Benefit Plans.
(a) Schedule 4.19(a) contains a complete and accurate
list of all Company Plans and Company Benefit Arrangements. Schedule 4.19(a)
specifically identifies all Company Plans (if any) that are Qualified Plans.
(b) Schedule 4.19(b) hereto sets forth an accurate list,
as of the date hereof, of all officers, directors, and key employees of the
Company and lists all employment agreements with such officers, directors, and
key employees and the rate of compensation (and the portions thereof
attributable to salary, bonus, and other compensation respectively) of each such
Person as of the date hereof.
(c) The Company has not declared or paid any bonus
compensation in contemplation of the transactions contemplated by this
Agreement.
4.20 Taxes. All federal, state, local and foreign tax returns,
reports and statements, or extensions required by law to be filed by the Company
and its Subsidiaries have bean filed with the appropriate governmental agencies
in all jurisdictions in which such returns, reports and statements are required
to be filed and all such returns, reports and statements or extensions are true,
complete and correct in all respects. All taxes, charges and other impositions
due and payable by the Company and its Subsidiaries have been paid in full on a
timely basis except where contested in good faith and by appropriate proceedings
if adequate reserves therefor have been established on the books and records of
the Company or Subsidiary in accordance with GAAP consistently applied. The
Company has not received notice of any audit or of any proposed deficiencies
from any governmental authority, and no controversy with respect to taxes of any
type is pending or threatened. Except for routine filing extensions granted as a
matter of right under applicable law, none of the Company or any of its
Subsidiaries has executed or filed with the Internal Revenue Service or any
other governmental authority any agreement or other document extending, or
having the effect of extending, the period of assessment or collection of any
taxes, charges or other impositions.
4.21 No Brokers or Finders. Except as set forth in Schedule 4.21,
no Person has, or as a result of the transactions contemplated herein will have,
any right or valid claim against the Company for any commission, fee or other
compensation as a finder or broker or in any similar capacity.
4.22 Interested Party Transactions. Except as disclosed on Schedule
4.22, no officer, director or shareholder of the Company or any affiliate or
"associate" (as such term is defined in Rule 405 of the Commission under the
Securities Act) of any such Person or the Company has or has had, either
directly or indirectly, (a) an interest in any Person which (i) furnishes or
sells services or products which are furnished or sold or are proposed to be
furnished or sold by the Company, or (ii) purchases from or sells or furnishes
to, or proposes to purchase from, sell to or furnish to, the
<PAGE> 12
Company any goods or services, or (b) a beneficial interest in any contract or
agreement to which the Company is a party or by which it may be bound or
affected.
4.23 Securities Laws. Assuming the accuracy and completeness of the
representations and warranties of the Lenders under the Agreement, the offer and
sale of the Notes are and will be exempt from the registration and prospectus
delivery requirements of the Securities Act, and have been registered or
qualified (or are exempt from registration and qualification) under the
registration or qualification requirements of all applicable state securities
laws.
4.24 Absence of Undisclosed Liabilities. Neither the Company nor
any of its Subsidiaries has any obligation or liability (whether accrued,
absolute, contingent, liquidated or otherwise, including without limitation any
tax liabilities due or to become due), which are not fully disclosed and
adequately provided for in the Balance Sheet, or fully disclosed on Schedules to
this Agreement, except current liabilities incurred and obligations under
agreements entered into in the usual and ordinary course of business since the
date of the Balance Sheet, none of which (individually or in the aggregate) is
material to the business, properties, financial condition or results of
operations of the Company and its Subsidiaries, and contingent liabilities that
are not (individually or in the aggregate) material to the business, properties,
financial condition or results of operations of the Company and its
Subsidiaries.
4.25 Employees. To the Company's knowledge, no officer or key
employee of the Company or any Subsidiary has any plans to terminate his or her
employment with the Company or such Subsidiary and no employee of the Company or
any Subsidiary is in violation of any term of any employment contract, or
nondisclosure agreement, non-competition agreement, or any other obligation,
contract or agreement or any restrictive covenant relating to the right of any
such employee to be employed by the Company or such Subsidiary or relating to
the use of trade secrets or proprietary information of others, and the
employment of the employees of the Company or any Subsidiary does not subject
the Company or any Subsidiary to any liability arising by reason of any such
contract, agreement or restrictive covenant or by reason of trade secret or
unfair competition laws. The Company and each Subsidiary has complied in all
material respects with all laws relating to employment or labor, including
provisions relating to wages, hours, equal opportunity, collective bargaining
and payment of Social Security and other taxes.
SECTION 5
Representations, Warranties and Covenants of the Lender
Each Lender severally hereby represents and warrants to and agrees with
the Company, as to itself only, as follows:
5.1 Accredited Investor; Investment. Lender is an accredited
investor within the definition of Regulation D promulgated under the Securities
Act. Lender has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of the transactions
contemplated herein. Lender is acquiring its respective Note for investment
purposes only, for its own account and not with a view to, or for resale in
connection with, any distribution thereof in violation of applicable law.
<PAGE> 13
5.2 Risk. Lender acknowledges that it, he or she is aware that the
Company is currently insolvent and has not had any revenues and has sustained
losses for the past several years. The Lender further acknowledges that (x)
there can be no assurance that the Company will have sufficient funds to repay
all or any portion of the loan being borrowed hereunder, (y) that the collateral
securing the loan will have sufficient value to repay the loan or (z) that the
securities into which the loan may be converted will have any value. Lender
further confirms that the Company has made available to the Lender the
opportunity to ask questions of and receive answers from the Company concerning
the Company and the activities of the Company.
5.3 Authorization. Lender represents that it has all requisite
power and authority to enter into and perform its obligations under the Loan
Documents to which it is a party. Assuming the due authorization, execution and
delivery of the Loan Documents by each other party thereto, each Loan Document
to which Lender is a party constitutes a valid and binding obligation of Lender,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except to the
extent that rights to indemnification and contribution under this Agreement may
be limited by federal or state securities laws or public policy relating
thereto.
5.4 Consents. No consent, approval, order or authorization of, or
registration, qualification, designation, declaration or filing with, any
federal, state, or local governmental authority or other Person on the part of
Lender is required in connection with the valid execution and delivery by Lender
of the Loan Documents to which it is a party, or the consummation by Lender of
the transactions contemplated by the Loan Documents to which it is a party,
except for such filings as have been made prior to the Closing.
5.5 Brokers' Fees. No broker, finder, investment banker or other
Person is entitled to any brokerage fee, finder's fee or other commission in
connection with the transactions contemplated by this Agreement and based upon
arrangements made by Lender.
5.6 Restrictive Legends. Lender understands that the common shares
to be issued upon conversion of the Convertible Secured Note (the "Conversion
Share"), shall bear a restrictive legend in substantially the following form
(and a stop-transfer order may be placed against transfer of such stock
certificates) until such time as the sale of the Conversion Shares have been
registered under the Securities Act as contemplated hereunder:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT",) OR ANY STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE
OFFERED, SOLD OR TRANSFERRED EXCEPT IN COMPLIANCE THEREWITH.
If Lender desires to sell or otherwise dispose of all or any part of such common
shares under an exemption from registration under the Securities Act, and if
requested by the Company, such Lender
<PAGE> 14
shall deliver to the Company an opinion of counsel, which may be counsel for the
Company, that such exemption is available.
SECTION 6
Covenants of the Company
6.1 Information. After the Closing Date and until the later to
occur of the date (the "Cessation Date") on which the Notes are fully repaid or
converted, the Company will send each Lender the information specified in this
Section 6.1:
(a) Shareholders Information. Any and all materials which
the Company sends to the holders of its Common Shares shall be sent to each
Lender on the same date on which it is sent to such shareholders.
(b) Quarterly Financial Statements. As soon as available,
but in any event no later than forty-five (45) days after the end of each fiscal
quarter (other than the fourth fiscal quarter of the Company), the unaudited
consolidated balance sheet of the Company and its Subsidiaries as at the end of
each such quarter and the related unaudited consolidated statements of income
and cash flows of the Company and its Subsidiaries for such quarter and for the
elapsed period in such fiscal year, all in reasonable detail and stating in
comparative form the figures as of the end of and for the comparable periods of
the preceding fiscal year. All such financial statements shall be prepared in
accordance with the GAAP on a consistent basis throughout the periods reflected
therein except as stated therein and shall be accompanied by a certificate of
the Company's president or chief financial officer to such effect.
(c) Other Reports and Statements. Promptly (but in any
event within ten (10) days after any distribution to its stockholders generally,
to its directors or to the financial community of an annual report, definitive
proxy statement, registration statement or other similar report or
communication, and promptly (but in any event within ten (10) days) after any
filing by the Company with the SEC or with any national securities exchange or
market system, of any publicly available annual or periodic or special report or
proxy statement or registration statement, a copy of such report or statement
and copies of all press releases and other statements made available generally
by the Company to the public concerning material developments in the Company's
business, shall be sent to each Lender.
6.2 Preemptive Rights. If at any time after the Closing Date and
prior to the Cessation Date, the Company shall propose to issue or sell New
Securities or enters into any contracts, commitments, agreements, understandings
or arrangements of any kind relating to the issuance or sale of any New
Securities, then each Lender shall have the right to purchase that number of New
Securities at the same price and on the same terms proposed to be issued or sold
by the Company so that such Lender would after the issuance and sale of all such
New Securities, hold the same proportional interest of the then outstanding
shares of Common Stock (assuming that any outstanding securities or other
rights, including the Notes, convertible or exchangeable into Common Stock have
been converted or exchanged) as was held by such Lender immediately prior to
such issuance and sale (the "Proportionate Percentage").
<PAGE> 15
The Company shall give each Lender written notice of its intention to
issue and sell New Securities, describing the type of New Securities, the price
and the general terms and conditions upon which the Company proposes to issue
the same. Each Lender shall have ten (10) Business Days from the giving of such
notice to agree to purchase all (or any part) of its Proportionate Percentage of
New Securities for the price and upon the terms and conditions specified in the
notice by giving written notice to the Company and stating therein the quantity
of New Securities to be purchased.
If Lenders fail to exercise in full such right within ten (10) Business
Days, the Company shall have one hundred twenty-five (125) days thereafter to
sell the New Securities in respect of which Lenders' rights were not exercised,
at a price and upon general teens and conditions no more favorable to the buyers
thereof than specified in the Company's notice to Lenders pursuant to this
Section. If the Company has not sold the New Securities within such one hundred
twenty-five (125) day period, the Company shall not-thereafter issue or sell any
New Securities, except by giving Lenders the right to purchase their
Proportionate Percentage in the manner provided above.
6.3 Negative Covenants. (a) Prior to the date on which the Notes
are paid in full, the Company shall not, without the prior written consent of
each Lender:
(i) Incur any debt for borrowed money, or grant any
security interest which is senior to, or pari passu with, the Convertible
Secured Note;
(ii) Declare or pay any dividend on its Common Stock;
(iii) Redeem for cash any securities issued by the Company;
(iv) Directly or indirectly, consummate any merger,
consolidation or other reorganization (other than a reorganization or merger
solely for the purpose of a change in the state of incorporation of the Company
and a merger of Spatialight of California, Inc. with and into the Company), or
the sale, lease or other transfer of all or substantially all of its assets; or
(v) Issue any options, warrants, or other securities to
any officer or director of the Company, except for an issuance under the 1993
Employee Stock Option Plan, as amended and the 1993 Directors Stock Option Plan.
(b) Prior to the Cessation Date, the Company shall not,
without the prior written consent of each Lender:
(i) issue any security which is preferred in dividends or
in liquidation to the Common Stock, which is not convertible into Common Stock;
or
(ii) issue any preferred stock, convertible debenture or
other security which is preferred in dividends to the Common Stock, which is
intended to, or can reasonably be expected to pay the purchaser of such security
an annual preferred yield of greater than ten percent per annum, on the issue
price of such security.
6.4 Board Member & Sit-In Rights. All of the Lenders, acting as a
group, at its option, shall have the right to nominate one candidate at the next
election of the board of directors of the Company, who shall be included in the
Company's slate of directors in all proxy materials sent to
<PAGE> 16
Company's shareholders. At any time that the Lenders do not have a
representative on the Company's board of directors, (a) the Lenders acting as a
group shall be permitted to select one representative ("the Representative") to
attend meetings of the board of directors of the Company, and to consult with
and advise management of the Company on significant business issues and
management will make itself available to meet with the Representative regularly
during each year at the Company's facilities at mutually agreeable times for
such consultation and advice; provided, however, that nothing in this paragraph
shall be construed to require the Company or its management to follow any such
consultation or advice; and (b) the Representative, upon reasonable notice to
Company, may inspect the Company's facilities, books and records at reasonable
times and intervals, provided, however, that such access shall be subject to (i)
the provisions of Section 6.1(d) of this Agreement and (ii) the Representative's
and execution of a confidentiality agreement the form and substance of which is
similar to the confidentiality agreement executed by Company's directors. The
Representative shall be provided the same notice of director's meetings that the
Company's directors receive. So long as the Lenders have the right provided in
this Section 6.4, all materials which the Company distributes to its members of
the board of directors will be distributed to the Representative if the Lenders
do not have a representative on the board of directors. A Lender who requests
information from the Representative (a "Requesting Lender") hereby acknowledges
that it is aware of the restrictions imposed by federal and state securities
laws on a person possessing material nonpublic information about a company. In
this regard, a Requesting Lender hereby agrees that while it is in possession of
material nonpublic information with respect to the Company and its subsidiaries,
such Requesting Lender will not purchase or sell any securities of the Company,
or communicate such information to any third party, in violation of any such
laws. Such Requesting Lender also agrees that, if requested by the Company, such
Requesting Lender will cause any of its representatives, consultants or advisors
who have been or may become apprised of any material nonpublic information about
the Company to give a written undertaking to the same effect to the Company. The
rights provided in this Section 6.4 shall remain in full force and effect as
long as any amounts remain due on the Note.
6.5 Loss, Theft or Destruction of Notes. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or
mutilation of any Note and, in the case of any such loss, theft or destruction,
upon receipt of indemnity reasonably satisfactory to the Company, or in the case
of any such mutilation, upon surrender and cancellation of any Note, the Company
will make and deliver, in lieu of such lost, stolen, destroyed or mutilated
Note, a new Note of like tenor and unpaid principal amount and dated as of the
date to which interest has been paid on the unpaid principal amount of the Note
so lost, stolen, destroyed or mutilated, or, if no interest shall have been paid
thereon, then dated as of the date of the Note so lost, stolen, destroyed or
mutilated.
SECTION 7
Indemnification
7.1 Indemnification by Company. The Company agrees to indemnify
and hold harmless each Lender and its respective partners, co-investors,
officers, directors, employees, agents, consultants, attorneys and advisers
(each, a "Lender Indemnified Party"), from and against any and all actual
losses, claims, damages, liabilities, costs and expenses (including, without
limitation, environmental liabilities, costs and expenses and all reasonable
fees, expenses and disbursements of counsel), joint or several (hereinafter
collectively referred to as a "Loss" or "Losses"), which may be incurred by or
asserted or awarded against any Lender Indemnified Party in connection with or
<PAGE> 17
in any manner arising out of or relating to any investigation, litigation or
proceeding or the preparation of any defense with respect thereto, arising out
of or in connection with or relating to this Agreement, the other Loan Documents
or the transactions contemplated hereby or thereby, any breach of any
representation, warranty or covenant made by the Company in this Agreement, any
use made or proposed to be made with the proceeds of Lender's respective Note
pursuant to this Agreement, or any Intellectual Property, whether or not such
investigation, litigation or proceeding is brought by the Company, any of its
Subsidiaries, shareholders or creditors, but excluding therefrom any Losses
arising out of resulting from (i) the gross negligence or willful misconduct of
an Lender Indemnified Party, (ii) any violation by an Lender Indemnified Party
of any law, governmental regulation or court order applicable to it or (iii) the
breach by an Lender Indemnified Party of any provision of this Agreement or any
of the other Loan Documents.
7.2 Indemnification by Lender. Each Lender severally agrees to
indemnify and hold harmless the Company and its respective officers, directors,
employees, agents, consultants, attorneys and advisers (each, a "Company
Indemnified Party"), from and against any and all Losses, which may be incurred
by or asserted or awarded against any Company Indemnified Party in connection
with or in any manner arising out of or relating to any investigation,
litigation or proceeding or the preparation of any defense with respect thereto,
arising out of or in connection with or relating to any breach of any
representation, warranty or covenant made by such Lender in this Agreement.
Notwithstanding the foregoing, no Lender shall be liable under this Section 7.2
for an amount in excess of that Lender's principal as set forth on Exhibit B.
7.3 Notice of Claim. An indemnified party shall give written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification within ten (10) days after the discovery by such parties of any
matters giving arise to a claim for indemnification pursuant to this Section 7,
provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Section 7, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice. In case any such action or claim is
brought against any indemnified party, the indemnifying party shall be entitled
to participate in and, unless in the reasonable good faith judgment of the
indemnified party a conflict of interest between such indemnified party and the
indemnifying party may exist in respect of such action or claim, to assume that
defense thereof, with counsel satisfactory to the indemnified party and after
notice from the indemnifying party to the indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses subsequently incurred by
the latter in connection with the defense thereof other than reasonable costs of
investigation. In any event, unless and until the indemnifying party elects in
writing to assume and does so assume the defense of any such action or claim the
indemnified party's costs and expenses arising out of the defense, settlement or
compromise of any such action or claim shall be Losses subject to
indemnification hereunder. If the indemnifying party elects to defend any such
action or claim, then the indemnified party shall be entitled to participate in
such defense with counsel of its choice at its sole cost and expense. The
indemnifying party shall not be liable for any settlement of any action or claim
effected without its written consent. Anything in this Section 7 to the contrary
notwithstanding, the indemnifying party shall not, without the indemnified
party's prior written consent, settle or compromise any claim or consent to
entry of any judgment in respect thereof that imposes any future obligation on
the indemnified party or that does not include, as an unconditional term
thereof, the giving by the claimant or the plaintiff to the indemnified party, a
release from all liability in respect of such claim.
<PAGE> 18
SECTION 8
Miscellaneous
8.1 Amendment: Waiver. Neither this Agreement nor any provision
hereof may be amended, modified, supplemented or waived, except by a written
instrument executed by (i) the Company and (ii) each of the Lenders.
8.2 Notices. Any notices or other communications required or
permitted hereunder shall be sufficiently given if in writing and delivered in
Person, transmitted by facsimile transmission (fax) or sent by registered or
certified mail (return receipt requested) or recognized overnight delivery
service, postage pre-paid, addressed as follows, or to such other address has
such party may notify to the other parties in writing:
(a) if to the Company:
SpatiaLight, Inc.
8-C Commercial Boulevard
Novato, CA 94949
Attn: Michael H. Burney
Facsimile No.: (415)883-3363
(b) if to a Lender:
To the address listed next to each such Lender on
Exhibit B hereto.
A notice or communication will be effective (i) if delivered in Person or by
overnight courier, on the business day it is delivered, (ii) if transmitted by
telecopier, on the business day of actual confirmed receipt by the addressee
thereof, and (iii) if sent by registered or certified mail, three (3) business
days after dispatch.
8.3 Survival of Representation, Warranties and Covenants. All
representations and warranties made in, pursuant to or in connection with this
Agreement shall survive the execution, delivery and closing of this Agreement,
any investigation at any time made by or on behalf of any Lender, and the
issuance of the Convertible Secured Note for a period of two (2) years;
provided, however, that the representations and warranties made in Section 4.15
(Environmental) and 4.20 (Taxes) shall survive the applicable statutory period
of limitations with respect to any liabilities covered thereby.
8.4 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
8.5 Successors and Assigns. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors and assigns of the parties hereto, including, without limitation,
each transferee of all or any portion of the Convertible Secured Note.
<PAGE> 19
No party hereto may assign its rights or delegate its obligations under this
Agreement without the prior written consent of the other parties hereto;
provided, however, a Lender may assign its rights and delegate its obligations
under this Agreement upon the Company's prior written consent which consent will
not be unreasonably withheld. The Parties agree that, among other reasons, it
will be reasonable for the Company to withhold such consent if the proposed
assignee is a competitor to the Company.
8.6 Entire Agreement. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement between the parties with regard to the subject matter hereof and
thereof and supersede and cancel all prior representations, alleged warranties,
statements, negotiations, undertakings, letters, acceptances, understandings,
contracts and communications, whether verbal or written, among the parties
hereto and thereto or their respective agents with respect to or in connection
with the subject matter hereof.
8.7 Choice of Law, Venue and Jurisdiction. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of New York
without regard to principles of conflict of laws.
8.8 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument. Execution and delivery by facsimile
shall constitute good and valid execution and delivery unless and until replaced
or substituted by an original executed instrument.
8.9 No Third-Party Beneficiaries. Nothing in this Agreement will
confer any third party beneficiary or other rights upon any Person (specifically
including any employees of the Company and its Subsidiaries) or entity that is
not a party to this Agreement.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officer on the
date first set forth above.
SpatiaLight, Inc., a New York corporation
By:
------------------------------------------
Name: Michael H. Burney
Its: Authorized Signatory
Lender:
--------------------------------------
{_____}
<PAGE> 1
Exhibit 4. Form of Security Agreement
SECURITY AGREEMENT
THIS SECURITY AGREEMENT dated as of November ___ , 1998 ("Security
Agreement"), is made by SPATIALIGHT, INC., a New York corporation, and by
SPATIALIGHT OF CALIFORNIA, INC., a California corporation (Spatialight, Inc.,
and Spatialight of California, Inc. are hereinafter referred to collectively as
"Grantor"), in favor of Steven F. Tripp, as collateral agent for the lenders
listed on Schedule A annexed hereto (collectively the "Lenders"), as now
existing and as hereafter amended from time to time (Steven F. Tripp in his
capacity as collateral agent hereunder, and together with his successors and
assigns in such capacity, is hereinafter referred to as "Secured Party").
RECITALS
WHEREAS, Grantor and Lenders have entered into one or more Convertible
Secured Loan Agreements, dated of even date herewith (as the same may be
amended, modified, supplemented or renewed from time to time herein individually
and collectively called the "Loan Agreements"), pursuant to which the Lenders
have severally agreed to lend to Grantor an aggregate principal sum of up to
$2,000,000, and Grantor, to evidence its indebtedness to the Lenders under the
Loan Agreements, has executed and delivered to the Lenders its Convertible
Secured Notes, dated of even date herewith (herein collectively called the
"Notes"), in the aggregate principal amount of $2,000,000 to mature on December
31, 1998, (subject to extension by Grantor to December 31, 1999) said Notes
being payable to the order of the respective Lenders, bearing interest at the
rate provided for therein and containing provisions for payment of attorney's
fees and acceleration of maturity in the event of default, as therein set forth;
WHEREAS, as a condition precedent to the making of the loans under the
Loan Agreements, Grantor is required to execute and deliver this Security
Agreement; and
WHEREAS, Grantor has duly authorized the execution, delivery and
performance of this Security Agreement.
NOW, THEREFORE, in order to induce the Lenders to make the loans
provided for under the terms of the Loan Agreements and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound, Grantor hereby represents,
warrants, covenants and agrees as follows:
1. Defined Terms. When used in this Security Agreement the
following terms shall have the following meanings (such meanings being equally
applicable to both the singular and plural forms of the terms defined):
"Collateral" shall have the meaning assigned to such term in Section 2
of this Security Agreement.
"Contracts" means all contracts, undertakings, franchise agreements or
other agreements in or under which Grantor now holds or hereafter acquires any
right, title or interest, including, without
<PAGE> 2
limitation, with respect to an Account, any agreement relating to the terms of
payment or the terms of performance thereof.
"Copyright License" means any written agreement, in which Grantor now
holds or hereafter acquires any interest, granting any right in or to any
Copyright or Copyright registration (whether Grantor is the licensee or the
licensor thereunder) including, without limitation, licenses pursuant to which
Grantor has obtained the exclusive right to use a copyright owned by a third
party.
"Copyrights" means all of the following in which Grantor now holds or
hereafter acquires any interest: (a) all copyrights, whether registered or
unregistered, held pursuant to the laws of the United States, any State thereof
or any other country; (b) registrations, applications, recordings and
proceedings in the United States Copyright Office or in any similar office or
agency of the United States, any State thereof or any other country; (c) any
continuations, renewals or extensions thereof; (d) any registrations to be
issued in any pending applications; (e) prior versions of works covered by
copyright and all works based upon, derived from or incorporating such works;
(f) income, royalties, damages, claims and payments now and hereafter due and/or
payable with respect to copyrights, including, without limitation, damages,
claims and recoveries for past, present or future infringement; (g) rights to
sue for past, present and future infringements of any copyright; and (b) any
other rights corresponding to any of the foregoing rights throughout the world.
"Event of Default" means any "Event of Default" as defined in the
Notes;
"License" means any Copyright License, Patent License, Trademark
License or other license of intellectual property rights or interests now held
or hereafter acquired by Grantor.
"Lien" means any mortgage, lien, deed of trust, charge, pledge,
security interest or other encumbrance.
"Patent License" means any written agreement, in which Grantor now
holds or hereafter acquires any interest, granting any right with respect to any
invention on which a Patent is in existence (whether Grantor is the licensee or
the licensor thereunder).
"Patents" means all of the following in which Grantor now holds or
hereafter acquires any interest: (a) all letters patent of the United States or
any other country, all registrations and recordings thereof and all applications
for letters patent of the United States or any other country, including, without
limitation, registrations, recordings and applications in the United States
Patent and Trademark Office or in any similar office or agency of the United
Sates, any State thereof or any other country; (b) all reissues, divisions,
continuations, renewals, continuations-in-part or extensions thereof; (c) all
petty patents, divisionals and patents of addition; and (d) all patents to issue
in any such applications; (e) income, royalties, damages, claims and payments
now and hereafter due and/or payable with respect to patents, including, without
limitation, damages, claims and recoveries for past, present or future
infringement; and (f) rights to sue for past, present and future infringements
of any patent.
"Secured Obligations" means (a) the obligation of Grantor to repay the
Lenders all of the unpaid principal amount of, and accrued interest on
(including any interest that accrues after the commencement of bankruptcy), any
amounts due pursuant to the Notes; (b) the obligations of Grantor to pay any
fees, costs and expenses of the Lenders under the Notes, and under Section 6.2
<PAGE> 3
hereof; and (c) all other indebtedness, liabilities and obligations of Grantor
to the Lenders, whether now existing or hereafter incurred, and whether created
under, arising out of or in connection with any written agreement or otherwise.
"Trademark License" means any written agreement, in which Grantor now
holds or hereafter acquires any interest, granting any right in and to any
Trademark or Trademark registration (whether Grantor is the licensee or the
licensor thereunder).
"Trademarks" means any of the following in which Grantor now holds or
hereafter acquires any interest: (a) any trademarks, trade names, corporate
names, company names, business names, trade styles, service marks, logos, other
source or business identifiers, prints and labels on which any of the foregoing
have appeared or appear, designs and general intangibles of like nature, now
existing or hereafter adopted or acquired, all registrations and recordings
thereof and any applications in connection therewith, including, without
limitation, registrations, recordings and applications in the United Sates
Patent and Trademark Office or in any similar office or agency of the United
States, any State thereof or any other country (collectively, the "Marks"); (b)
any reissues, extensions or renewals thereof; (c) the goodwill of the business
symbolized by or associated with the Marks; (d) income, royalties, damages,
claims and payments now and hereafter due and/or payable with respect to the
Marks, including, without limitation, damages, claims and recoveries for past,
present or future infringement; and (e) rights to sue for past, present and
future infringements of the Marks.
"UCC" means the Uniform Commercial Code as the same may, from time to
time, be in effect in the State of New York; provided, however, in the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of Secured Party's security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
In addition, the following terms shall be defined terms having the
meaning set forth for such terms in the UCC: "Account Debtor"; "Accounts";
"Chattel Paper"; "Deposit Accounts"; "Documents"; "Equipment"; "Financial
Assets"; "Fixtures"; "General Intangibles"; "Instruments"; "Inventory";
"Investment Property"; "Proceeds". Each of the foregoing defined terms shall
include all of such items now owned, or hereafter acquired, by Grantor.
Unless otherwise defined herein, in the Loan Agreements or in the
Notes, all capitalized terms used herein shall have the respective meanings
given to them in the UCC.
2. Grant of Security Interest. As collateral security for the
prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of all the Secured Obligations, Grantor
hereby assigns, conveys, mortgages, pledges, hypothecates and transfers to
Secured Party for the ratable benefit of the holders of the Secured Obligations,
and hereby grants to Secured Party for the ratable benefit of the holders of the
Secured Obligations, a security interest in all of Grantor's right, title and
interest in, to and under the following, whether now owned or hereafter acquired
(all of which being collectively referred to herein as the "Collateral"):
<PAGE> 4
(a) All Accounts of Grantor;
(b) All Chattel Paper of Grantor,
(c) All Contracts of Grantor,
(d) All Deposit Accounts of Grantor,
(e) All Documents of Grantor,
(f) All Equipment of Grantor;
(g) All Financial Assets of Grantor;
(h) All Fixtures of Grantor;
(i) All General Intangibles of Grantor, including,
without limitation, all Copyrights, Patents, Trademarks, Licenses, designs,
drawings, technical information, marketing plans, customer lists, trade secrets,
proprietary or confidential information, inventions (whether or not patentable),
procedures, know-how, models and data;
(j) All Instruments of Grantor;
(k) All Inventory of Grantor;
(1) All Investment Property of Grantor,
(m) All property of Grantor held by Secured Party, or any
other party for whom Secured Party is acting as agent hereunder, including,
without limitation, all property of every description now or hereafter in the
possession or custody of or in transit to Secured Party or such other party for
any purpose, including, without limitation, safekeeping, collection or pledge,
for the account of Grantor, or as to which Grantor may have any right or power;
(n) All other goods and personal property of Grantor,
wherever located, whether tangible or intangible, and whether now owned or
hereafter acquired, existing, leased or consigned by or to Grantor; and
(o) To the extent not otherwise included, all Proceeds of
each of the foregoing and all accessions to, substitutions and replacements for
and rents, profits and products of each of the foregoing, as well as all
payments under insurance (whether or not Secured Party is the loss payee
thereof), or any indemnity, warranty or guaranty, payable by reason of loss or
damage to or otherwise with respect to any of the foregoing Collateral.
3. Rights of Secured Party; Collection of Accounts.
3.1 Performance of Contracts and Licenses.
Notwithstanding anything contained in this Security Agreement to the contrary,
Grantor expressly agrees that it shall remain liable under each of its Contracts
and each of its Licenses to observe and perform all the conditions and
<PAGE> 5
obligations to be observed and performed by it thereunder and that it shall
perform all of its duties and obligations thereunder, all in accordance with and
pursuant to the terms and provisions of each such Contract or License. Secured
Party shall not have any obligation or liability under any Contract or License
by reason of or arising out of this Security Agreement or the granting to
Secured Party of a lien therein or the receipt by Secured Party of any payment
relating to any Contract or License pursuant hereto, nor shall Secured Party be
required or obligated in any manner to perform or fulfill any of the obligations
of Grantor under or pursuant to any Contract or License, or to make any payment,
or to make any inquiry as to the nature or the sufficiency of any payment
received by it or the sufficiency of any performance by any party under any
Contract or License, or to present or file any claim, or to take any action to
collect or enforce any performance or the payment of any amounts which may have
been assigned to it or to which it may be entitled at any time or times.
3.2 Collection of Accounts. Secured Party authorizes
Grantor to collect its Accounts, provided that such collection is performed in a
prudent and businesslike manner, and Secured Party may, upon the occurrence and
during the continuation of any Event of Default and without notice, limit or
terminate said authority at any time. Upon the occurrence and during the
continuance of any Event of Default, at the request of Secured Party, Grantor
shall deliver all original and other documents evidencing and relating to the
performance of labor or service which created such Accounts, including, without
limitation, all original orders, invoices and shipping receipts.
3.3 Notification to Third Parties. Secured Party may at
any time, upon the occurrence and during the continuance of any Event of
Default, after due notice to Grantor of its intention to do so, notify Account
Debtors of Grantor, parties to the Contracts of Grantor, obligors in respect of
Instruments of Grantor and obligors in respect of Chattel Paper of Grantor that
the Accounts and the right, title and interest of Grantor in and under such
Contracts, Instruments and Chattel Paper have been assigned to Secured Party and
that payments shall be made directly to Secured Party. Upon the request of
Secured Party, Grantor shall so notify such Account Debtors, parties to such
Contracts, obligors of such Instruments and obligors in respect of such Chattel
Paper. Upon the occurrence and during the continuance of any Event of Default,
Secured Party may, in its name or in the name of others, communicate with such
Account Debtors, parties to such Contracts, obligors in respect of such
Instruments and obligors in respect of such Chattel Paper to verify with such
parties, to Secured Party's satisfaction, the existence, amount and terms of any
such Accounts, Contracts, Instruments or Chattel Paper.
4. Representations and Warranties. Grantor, to its knowledge,
hereby represents and warrants as of the date hereof that:
4.1 Title. Except for the security interest granted to
Secured Party under this Security Agreement, and except as set forth on Schedule
4.1 hereto: (a) Grantor is the sole legal and equitable Owner of each item of
the Collateral in which it purports to grant a security interest hereunder,
having good and marketable title thereto, free and clear of any and all Liens;
and (b) no effective security agreement, financing statement, equivalent
security or lien instrument or continuation statement covering all or any part
of the Collateral exists, except such as may have been filed by Grantor in favor
of Secured Party pursuant to this Security Agreement.
4.2 Security Interest. This Security Agreement creates a
legal and valid security interest on and in all of the Collateral in which
Grantor now has rights. Upon the making of the
<PAGE> 6
required filings, Secured Party will have a fully perfected security interest
for the ratable benefit of the holders of the Secured Obligations in all of the
Collateral in which Grantor now has rights. This Security Agreement will create
a legal and valid and fully perfected security interest in the Collateral in
which Grantor later acquires rights, when Grantor acquires those rights and
makes additional filings to be made with the United States Copyright and/or
Patent and Trademark Office as are necessary to perfect Secured Party's security
interest in subsequent ownership rights and interests of Grantor in Copyrights,
Patents, Trademarks and Licenses.
4.3 Location of Collateral. Grantor's chief executive
office, principal place of business and the place where the Grantor maintains
its records concerning the Collateral are presently located at the address set
forth on the signature page hereof. The Collateral is presently located at such
address and at such additional addresses set forth on Schedule 4.3 attached
hereto.
4.4 List of Intellectual Property. All Copyrights,
Copyright Licenses, Patents, Patent Licenses, Trademarks and Trademark Licenses
now owned, held or in which Grantor otherwise has any interest are listed on
Schedule 4.4 attached hereto.
4.5 Intellectual Property Collateral. With respect to the
Copyrights, Patents, Trademarks and Licenses granted to Secured Party hereunder
(the "Intellectual Property Collateral"), the loss, impairment or infringement
of which might have a materially adverse effect on the financial condition,
operation, assets, business, properties or prospects of the Grantor:
(a) such Intellectual Property Collateral is
subsisting and has not been adjudged invalid or unenforceable, in whole or in
part;
(b) Grantor has made all necessary filings and
recordations to protect its interest in such Intellectual Property Collateral;
(c) Grantor is the Owner of the entire and
unencumbered right, title and interest in and to such Intellectual Property
Collateral and no claim has been made that the use of such Intellectual Property
Collateral does or may violate the asserted rights of any third party;
(d) Grantor has performed and will continue to
perform acts and has paid and will continue to pay all required fees and taxes
to maintain each and every item of Intellectual Property Collateral in full
force and effect throughout the world, as applicable.
(e) There are in full force and effect
confidentiality and noncompetition agreements between Grantor and its current
and former employees prohibiting the unauthorized disclosure or dissemination of
any information relating to the Intellectual Property Collateral, as well as
enforceable intellectual property ownership agreements between Grantor and its
current employees.
(f) Grantor will continue to take all reasonable
measures to protect against any unauthorized disclosure or dissemination of
information relating to the Intellectual Property Collateral by its current and
future employees.
4.6 Authorization, Approval, Etc. Except as set forth on
Schedule 4.6 hereto, no authorization, approval or other action by, and no
notice to or filing with, any governmental
<PAGE> 7
authority or regulatory body is required either (a) for the grant by the Grantor
of the security interest granted hereby or for the execution, delivery, and
performance of this Security Agreement by the Grantor, or (b) for the perfection
of or the exercise by the Secured Party of its rights and remedies hereunder.
4.7 Compliance with Laws. Except as set forth on Schedule
4.7 hereto, the Grantor is in compliance with the requirements of all applicable
laws (including, without limitation, the provisions of the Fair Labor Standards
Act), rules, regulations and orders of every governmental authority, the
non-compliance with which might materially adversely affect the business,
properties, assets, operations, condition (financial or otherwise) or prospects
of the Grantor or the value of the Collateral or the worth of the Collateral as
collateral security.
4.8 List of Investment Property. All investment property
now owned, held or in which Grantor otherwise has any interest is listed on
Schedule 4.8 attached hereto.
4.9 No Conditions Precedent. There are no conditions
precedent to the effectiveness of this Security Agreement that have not been
satisfied or waived.
5. Covenants. Grantor covenants and agrees with Secured Party
that from and after the date of this Security Agreement and until the Secured
Obligations have been performed and paid in full:
5.1 Disposition of Collateral. Grantor shall not sell,
lease, transfer or otherwise dispose of any of the Collateral, or attempt to
contract to do so without the consent of the Secured Party, other than (a) the
sale of Inventory, (b) the granting of nonexclusive Licenses and (c) the
disposal of worn-out or obsolete Equipment, all in the ordinary course of
Grantor's business.
5.2 Relocation of Business or Collateral. Grantor shall
not relocate its chief executive office, principal place of business or its
records, or allow the relocation of any Collateral (except as allowed pursuant
to Section 5.1 immediately above) from such address(es) provided to Secured
Party pursuant to Section 4.3 above without twenty (20) days prior written
notice to Secured Party.
5.3 No Liens on Collateral. Grantor shall not, directly
or indirectly, create, permit or suffer to exist, and shall defend the
Collateral against and take such other action as is necessary to remove, any
Lien on the Collateral, except (i) the Lien granted to Secured Party under this
Security Agreement, and (ii) the Liens described on Schedule 4.1 hereto.
5.4 Insurance. Maintain insurance policies insuring the
Collateral against loss or damage from such risks and in such amounts and forms
and with such companies as are customarily maintained by businesses similar to
Grantor.
5.5 Taxes, Assessments. Etc. Grantor shall pay promptly
when due all property and other taxes, assessments and government charges or
levies imposed upon, and all claims (including claims for labor, materials and
supplies) against, the Equipment, Fixtures, or Inventory, except to the extent
the validity thereof is being contested in good faith and adequate reserves are
being maintained in connection therewith.
<PAGE> 8
5.6 Maintenance of Records. Grantor shall keep and
maintain at its own cost and expense satisfactory and complete records of the
Collateral.
5.7 Registration of Intellectual Property Rights. Grantor
shall promptly register or cause to be registered (to the extent not already
registered) the most recent version of any Copyright and any Copyright License
and any Patent, Patent License, Trademark or Trademark License, which,
individually or in the aggregate, is material to the conduct of Grantor's
business, with the United States Copyright Office or Patent and Trademark
Office, applicable, including, without limitation, in all such cases the filing
of applications for renewal, affidavits of use, affidavits of noncontestability
and opposition and interference and cancellation proceedings. Grantor shall
register or cause to be registered with the United States Copyright Office or
Patent and Trademark Office, as applicable, those additional rights and
interests developed or acquired by Grantor, after the date of this Security
Agreement, including, without limitation, any additions to the rights and
interests of Grantor listed on Schedule 4.4 hereto, prior to the sale or
licensing of any product containing such rights and interests.
5.8 Notification Regarding Changes in Intellectual
Property. Grantor shall promptly advise Secured Party of any subsequent
ownership right or interest of the Grantor in or to any Copyright, Patent,
Trademark or License not specified on Schedule 4.4 hereto and hereby authorizes
and appoints Secured Party as Grantor's attorney-in-fact to modify or amend such
Schedule, as necessary, to reflect any addition or deletion to such ownership
rights.
5.9 Defense of Intellectual Property. Grantor shall (a)
protect, defend, and maintain the validity and enforceability of the Copyrights,
Patents and Trademarks, (b) use its best efforts to detect infringements of the
Copyrights, Patents and Trademarks and promptly advise Secured Party in writing
of material infringements detected and (c) not allow any Copyrights, Patents, or
Trademarks to be abandoned, forfeited, or dedicated to the public without the
written consent of Secured Party.
5.10 Further Assurances; Reimbursement. At any time and
from time to time, upon the written request of Secured Party, and at the sole
expense of Grantor, Grantor shall promptly and duly execute and deliver any and
all such further instruments and documents and take such action as Secured Party
may reasonably deem necessary or desirable to obtain the full benefits of this
Security Agreement, including, without limitation, facilitating the filing of
UCC-1 Financing Statements in all applicable jurisdictions and this Security
Agreement (and any amendment hereto) with the United States Copyright Office
and/or Patent and Trademark Office, as applicable. Grantor agrees to reimburse
Secured Party, upon demand, for any payment made or any expense incurred by
Secured Party in making any such filings or for the discharge of any taxes,
liens, or other encumbrances at any time levied or placed on the Collateral or
any part thereof or any other payment made by Secured Party for the maintenance
and preservation of the Collateral. Grantor agrees that a carbon or photostatic
copy of this Security Agreement may be filed as a financing statement in any
public office.
<PAGE> 9
6. Rights and Remedies Upon Default.
6.1 General. Upon the occurrence of any Event of Default
and while such Event of Default is continuing, Secured Party may exercise in
addition to all other rights and remedies granted to it under this Security
Agreement, all rights and remedies of a secured party under the UCC.
6.2 Right to Fees, Costs and Expenses. Grantor also
agrees to pay all fees, costs and expenses of Secured Party, including, without
limitation, reasonable attorneys' fees, incurred in connection with the
enforcement of any of its rights and remedies hereunder, including, without
limitation, in any litigation, bankruptcy, or insolvency proceedings.
6.3 Priorities Upon Disposition of Collateral. The
proceeds of any sale, disposition or other realization upon all or any part of
the Collateral shall be distributed by Secured Party in the following order of
priorities:
(a) First, to Secured Party in an amount
sufficient to pay in full the reasonable costs of Secured Party in connection
with such sale, disposition or other realization, including all fees, costs,
expenses, liabilities and advances incurred or made by Secured Party in
connection therewith, including, without limitation, reasonable attorneys' fees;
(b) Second, to the Lenders in an amount equal to
the then unpaid Secured Obligations; and
(c) Finally, upon payment in full of the Secured
Obligations, to Grantor or its representatives, in accordance with the UCC or as
a court of competent jurisdiction may direct.
7. Secured Party Appointed Attorney-in-fact. Grantor hereby
appoints Secured Party the Grantor's attorney-in-fact, with full authority in
the place and stead of the Grantor and in the name of the Grantor or otherwise,
from time to time in the Secured Party's discretion, upon the occurrence and
during the continuance of an Event of Default, to take any action and to execute
any instrument which the Secured Party may deem necessary or advisable to
accomplish the purposes of this Security Agreement, including, without
limitation:
(a) to ask, demand, collect, sue for, recover,
compromise, receive and give acquittance and receipts for moneys due and to
become due under or in connection with the Collateral;
(b) to receive, indorse, and collect any drafts or other
instruments, documents and chattel paper, in connection therewith; and
(c) to file any claims or take any action or institute
any proceedings which Secured Party may deem necessary or desirable for the
collection of any of the Collateral or otherwise to enforce the rights of the
Secured Party with respect to any of the Collateral.
8. Indemnity. Grantor agrees to defend, indemnify and hold
harmless Secured Party, and its officers, employees, attorney, agents, members,
and each person who controls any of the foregoing against (a) all obligations,
demands, claims and liabilities claimed or asserted by any
<PAGE> 10
other party in connection with the transactions contemplated by this Security
Agreement and (b) all losses or expenses in any way suffered, incurred or paid
by Secured Party as a result of or in any way arising out of, following or
consequential to transactions between Secured Party and Grantor, whether under
this Security Agreement or otherwise (including, without limitation, reasonable
attorneys' fees and expenses), except for losses arising from or out of Secured
Party's gross negligence or willful misconduct.
9. Limitation on Secured Party's Duty in Respect of Collateral.
Secured Party shall be deemed to have acted reasonably in the custody,
preservation, and disposition of any of the Collateral if it takes such action
as Grantor requests in writing, but failure to comply with any such request
shall not in itself be deemed a failure to act reasonably and no failure of
Secured Party to do any act not so requested shall be deemed a failure to act
reasonably.
10. Reinstatement. This Security Agreement shall remain in full
force and effect and continue to be effective should any petition be filed by or
against Grantor for liquidation or reorganization, should Grantor become
insolvent or make an assignment for the benefit of creditors or should a trustee
or receiver be appointed for all or any significant part of Grantor's property
and assets and shall continue to be effective or be reinstated, as the case may
be, if at any time payment and performance of the Secured Obligations, or any
part thereof, is, pursuant to applicable law, rescinded or reduced in amount or
must otherwise be restored or returned by any obligee of the Secured
Obligations, whether as a "voidable preference," "fraudulent conveyance" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Secured Obligations shall be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
11. Miscellaneous.
11.1 No Waiver; Cumulative Remedies. Secured Party shall
not by any act, delay, omission or otherwise be deemed to have waived any of its
respective rights or remedies hereunder, nor shall any single or partial
exercise of any right or remedy hereunder on any one occasion preclude the
further exercise thereof or the exercise of any other right or remedy. The
rights and remedies hereunder provided are cumulative and may be exercised
singly or concurrently and are not exclusive of any rights and remedies provided
by law.
11.2 Entire Agreement. This Security Agreement constitutes
the entire agreement between the parties relating to the subject matter hereof.
None of the terms or provisions of this Security Agreement may be waived,
altered, modified or amended except by an instrument in writing, duly executed
by Grantor and Secured Party.
11.3 Termination of this Security Agreement. Subject to
Section 10 hereof, this Security Agreement shall terminate upon the payment and
performance in full of the Secured Obligations, at which time all rights to the
Collateral shall revert to Grantor. Upon such a termination, the Secured Party
shall, at Grantor's sole expense, execute and deliver to Grantor such documents
as the Grantor shall reasonably request to evidence such termination.
11.4 Successors and Assigns. This Security Agreement and
all obligations of Grantor hereunder shall be binding upon the successors and
assigns of Grantor, and shall, together with the rights and remedies of Secured
Party hereunder, inure to the benefit of Secured Party, any
<PAGE> 11
future holder of any of the indebtedness and their respective successors and
assigns. No sales of participations, other sales, assignments, transfers or
other dispositions of any agreement governing or instrument evidencing the
Secured Obligations or any portion thereof or interest therein shall in any
manner affect the Lien granted to Secured Party hereunder.
11.5 Headings. Section headings used in this Security
Agreement are for convenience of reference only, and shall not affect the
construction of this Security Agreement.
11.6 Severability. Wherever possible each provision of
this Security Agreement shall be interpreted in such manner as to be effective
and valid under applicable law, but if any provision of this Security Agreement
shall be prohibited by or invalid under such law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Security Agreement.
11.7 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
with the same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument. Execution and delivery by facsimile
shall constitute good and valid execution and delivery unless and until replaced
or substituted by an original executed instrument.
11.8 Governing Law. In all respects, including all matters
of construction, validity and performance, this Security Agreement and the
Secured Obligations arising hereunder shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York, excluding
conflicts of laws principles.
11.9 Collateral Agent. Pursuant to the terms of a Note
Holders' Representative Agreement by and among the Lenders dated of even date
herewith, the Lenders have designated Steven F. Tripp to act as their collateral
agent hereunder, and the Lenders have reserved the right to designate or elect a
successor person or entity to serve as their collateral agent and as Secured
Party under this Security Agreement. Upon the appointment or designation of a
successor to serve as collateral agent for the Lenders hereunder, such successor
shall thereupon succeed to and become vested with all the rights, powers and
privileges of the Secured Party hereunder as collateral agent for the Lenders.
Lenders or the Secured Party shall notify Grantor of the designation or election
of any such person or entity to serve as the successor of the Secured Party
hereunder.
<PAGE> 12
IN WITNESS WHEREOF, each of the parties hereto has caused this Security
Agreement to be executed and delivered by its duly authorized officer on the
date first set forth above.
<TABLE>
<S> <C>
Spatialight, Inc., a New York corporation Address of Spatialight, Inc., a Grantor:
By: Spatialight, Inc.
-------------------------------------- 8-C Commercial Blvd.
Michael H. Burney Novato, CA 94949
Chief Executive Officer
Spatialight of California, Inc., Address of Spatialight of California, Inc.,
a California corporation a Grantor:
By: Spatialight of California, Inc.
-------------------------------------- 8-C Commercial Blvd.
Michael H. Burney Novato, CA 94949
Chief Executive Officer
</TABLE>
<PAGE> 1
Exhibit 5. Form of Intercreditor Security Agreement
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT (this "Intercreditor Agreement" or this
"Agreement") is made as of the _______day of November, 1998, by and among
SPATIALIGHT, INC., a New York corporation (the "Borrower"), ARGYLE CAPITAL
MANAGEMENT CORPORATION, a Delaware corporation (when acting on its own behalf,
"Argyle"), each of the Persons listed on Schedule A annexed hereto, as now
existing and as hereafter amended from time to time, each of whom has executed a
counterpart of this Intercreditor Agreement (the Lenders listed on Schedule A
are hereinafter sometimes referred to as the "November Lenders"), and each of
the Persons listed on Schedule B annexed hereto, each of whom has executed a
counterpart of this Intercreditor Agreement by and through his or its duly
authorized agent, Argyle (the Lenders listed on Schedule B are hereinafter
sometimes referred to as the "August Lenders").
Recitals
WHEREAS, Argyle and the Borrower have entered into (i) that certain
Promissory Note dated January 23, 1998 in the principal amount of $150,000, (ii)
that certain Secured Promissory Note dated February 24, 1998 in the principal
amount of $350,000, (iii) that certain Secured Promissory Note dated March 18,
1998 in the principal amount of $50,000, (iv) that certain Secured Promissory
Note dated March 27, 1998 in the principal amount of $20,000, (v) that certain
Secured Promissory Note dated April 3, 1998 in the principal amount of $70,000,
(vi) that certain Secured Promissory Note dated April 17, 1998 in the principal
amount of $90,000, (vii) that certain Secured Promissory Note dated May 1, 1998
in the principal amount of $89,000, (viii) that certain Secured Promissory Note
dated May 15, 1998 in the principal amount of $85,000, (ix) that certain Secured
Promissory Note dated May 29, 1998 in the principal amount of $76,500, (x) that
certain Extension Agreement, dated May 20, 1998, extending the maturity dates of
each of the notes identified in (ii) through (viii) above to September 18, 1998,
and (xi) such other notes executed and delivered by the Borrower to Argyle
evidencing indebtedness to Argyle prior to the date hereof (collectively, the
"Subordinated Notes"), bearing interest at the rate provided for therein and
containing provisions for payment and acceleration of maturity in the event of
default as therein set forth, pursuant to which Argyle agreed to make certain
loans and financial accommodations to the Borrower (collectively, the
"Subordinated Loans"). The Subordinated Notes are secured by that certain
Security Agreement dated February 24, 1998 from the Borrower to Argyle (the
"Subordinated Security Agreement"), pursuant to which the Borrower has granted
to Argyle a first priority perfected security interest in and lien on certain of
the Borrower's property and assets as more fully described in the Subordinated
Security Agreement (the "Argyle Collateral");
WHEREAS, Argyle has certain rights to convert the Subordinated Loans
into equity of the Borrower and certain registration rights upon such conversion
under and pursuant to (i) that certain Letter Agreement dated March 31, 1998
between Argyle and the Borrower, (ii) that certain Letter Agreement dated April
30, 1998 between Argyle and the Borrower and (iii) that certain Letter Agreement
dated May 15, 1998 between Argyle and the Borrower (collectively, the
"Conversion Agreements", and, together with the Subordinated Notes and the
Subordinated Security Agreement, and all other mortgages, security agreements,
financing statements, documents, certificates and instruments relating to,
arising out of; or in any way connected therewith or any of the transactions
<PAGE> 2
contemplated thereby are hereinafter collectively referred to as the
"Subordinated Loan Documents");
WHEREAS, the Borrower and the August Lenders have entered or intend to
enter into one or more Convertible Secured Loan Agreements (as the same may be
amended, modified, supplemented or renewed from time to time, the "August Loan
Agreements"), pursuant to which the August Lenders have agreed to lend to the
Borrower up to $1,000,000, and the Borrower to evidence its indebtedness to the
August Lenders under the August Loan Agreements, has executed and delivered to
the August Lenders its Convertible Secured Notes (the "August Notes"), in the
aggregate principal amount of up to $1,000,000 (the "August Loan"), to mature on
December 31, 1998 (subject to extension, under certain circumstances, by the
Borrower to December 31, 1999) and the August Notes being payable to the order
of the August Lenders, bearing interest at the rate provided for therein and
containing provisions for payment and acceleration of maturity in the event of
default, as therein set forth. The August Notes are or shall be secured by one
or more Security Agreements (whether one or more, the "August Security
Agreements"), from the Borrower in favor of the respective August Lenders,
pursuant to which the Borrower has granted or shall grant to the August Lenders
a perfected security interest in and lien on certain of the Borrower's property
and assets as more fully described in the August Security Agreements (the
"August Collateral"). (The August Loan Agreements, the August Notes and the
August Security Agreements, together with all other mortgages, security
agreements, financing statements, documents, certificates and instruments
relating to, arising out of, or in any way connected therewith or any of the
transactions contemplated thereby are hereinafter collectively referred to as
the "August Loan Documents");
WHEREAS, the Borrower and the November Lenders have entered or intend
to enter into one or more Convertible Secured Loan Agreements (as the same may
be amended, modified, supplemented or renewed from time to time, the "November
Loan Agreements"), pursuant to which the November Lenders have agreed to lend to
the Borrower up to $2,000,000, and the Borrower to evidence its indebtedness to
the November Lenders under the November Loan Agreements, has executed and
delivered or shall execute and deliver to the November Lenders its Convertible
Secured Notes (the "November Notes"), in the aggregate principal amount of up to
$2,000,000 (the "November Loan"), to mature on December 31, 1998 (subject to
extension, under certain circumstances, by the Borrower to December 31, 1999)
with the November Notes being payable to the order of the November Lenders,
bearing interest at the rate provided for therein and containing provisions for
payment and acceleration of maturity in the event of default, as therein set
forth. The November Notes are or shall be secured by one or more Security
Agreements (whether one or more, the "November Security Agreements"), from the
Borrower in favor of the respective November Lenders, pursuant to which the
Borrower has granted or shall grant to the November Lenders a perfected security
interest in and lien on certain of the Borrower's property and assets as more
fully described in the November Security Agreements (the "November Collateral").
(The November Loan Agreements, the November Notes and the November Security
Agreements, together with all other mortgages, security agreements, financing
statements, documents, certificates and instruments relating to, arising out of;
or in any way connected therewith or any of the transactions contemplated
thereby are hereinafter collectively referred to as the "November Loan
Documents");
WHEREAS, the November Lenders have required as an absolute condition
precedent to the execution and delivery of the November Loan Documents that
their respective obligations shall be equally and ratably secured by a first
prior and perfected lien on and security interest in the November Collateral
shared pari passu as provided herein with the lien and security interest in the
<PAGE> 3
Argyle Collateral held by Argyle and with the lien and security interest in the
August Collateral held by the August Lenders, to the extent such liens and
security interests are perfected and enforceable (the November Collateral, the
Argyle Collateral and the August Collateral are referred to collectively as the
"Collateral") and that the payment obligations of the Borrower to Argyle under
and pursuant to the Subordinated Loan Documents shall be junior and subordinate
to the payment obligations of the Borrower under the November Loan Documents as
set forth herein. (The November Notes and the August Notes are hereinafter
collectively referred to as the "Senior Notes"; the November Loan and the August
Loan are hereinafter collectively referred to as the "Senior Loan"; the November
Security Agreement and the August Security Agreements are hereinafter
collectively referred to as the "Senior Security Agreements"; the November Loan
Documents and the August Loan Documents are hereinafter collectively referred to
as the "Senior Loan Documents"; and the November Lenders and the August Lenders
are hereinafter sometimes collectively referred to as the "Senior Lenders"); and
WHEREAS, the parties desire to enter into this Intercreditor Agreement
in order to set forth certain provisions and understandings concerning their
respective obligations.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged and agreed, each of parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms shall have the meanings in
this Agreement assigned to them in this Section:
"Agent" shall have the meaning given such term in Section 3.6(a).
"Agreement" shall mean this Intercreditor Agreement as amended or
modified in accordance with the terms hereof.
"Business Day" shall mean any day other than (i) a Saturday or a
Sunday, or (ii) a day on which commercial banks located in New York, New York
are required or authorized by law or executive order to close or remain closed.
"Collateral" shall have the meanings set forth in the Recitals hereof.
"Conversion Agreements" shall have the meaning set forth in the
Recitals hereof
"Default" shall mean any event or condition, the occurrence of which
would, with the lapse of time or the giving of notice, or both, constitute an
Event of Default.
"Enforcement Action" shall have the meaning given such term in Section
3.6 (a) hereof.
"Event of Default" shall mean an "Event of Default" as such term is
defined in the Subordinated Loan Documents and the Senior Loan Documents.
<PAGE> 4
"Insolvency Event" shall have the meaning given to such term in Section
3.2(a) hereof
"Person" shall mean an individual, corporation, partnership, limited
liability company, estate, trust or unincorporated organization, and a
government or agency or political subdivision thereof.
"Senior Loan Documents" shall have the meaning set forth in the
Recitals hereof; and shall include such agreement as amended or modified in
accordance with its terms and in accordance with the terms hereof.
"Senior Secured Obligations" shall mean the indebtedness, obligations
and liabilities of the Borrower to the Senior Lenders under the Senior Loan
Documents (including, but not limited to, all unpaid principal of, premium, if
any, and accrued and unpaid interest on the Senior Notes), whether now existing
or hereafter arising, joint or several, direct or indirect, absolute or
contingent, due or to become due, matured or unmatured, liquidated or
unliquidated, arising by contract, operation of law or otherwise and all
obligations of the Borrower to the Senior Lenders arising out of any
modification, amendment, increase, extension, refinancing or refunding of any of
the foregoing obligations.
"Subordinated Loan Documents" shall have the meaning set forth in the
Recitals hereof; and shall include such agreement as amended or modified in
accordance with its terms and in accordance with the terms hereof
"Subordinated Secured Obligations" shall mean the indebtedness,
obligations and liabilities of the Borrower to Argyle under the Subordinated
Loan Documents (including, but not limited to, all unpaid principal of, premium,
if any, and accrued and unpaid interest on the Subordinated Notes) and the
Conversion Agreements, whether now existing or hereafter arising, joint or
several, direct or indirect, absolute or contingent, due or to become due,
matured or unmatured, liquidated or unliquidated, arising by contract, operation
of law or otherwise, and all obligations of the Borrower to Argyle arising out
of any modification, amendment, increase, extension, refinancing or refunding of
any of the foregoing obligations.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ARGYLE
SECTION 2.1 Representations and Warranties. Argyle represents and
warrants to the Senior Lenders as follows:
(a) Argyle has delivered to the Senior Lenders true, correct and
complete copies of all documents evidencing and securing the Subordinated
Secured Obligations.
(b) The aggregate principal amount of all Subordinated Secured
Obligations outstanding on the date hereof is $1,188,000.
(c) Argyle is duly authorized to act as agent of the August Lenders for
purposes of executing this Intercreditor Agreement and binding the August
Lenders to the same and for purposes of carrying out the transactions
contemplated hereby.
<PAGE> 5
ARTICLE III
SUBORDINATION TO SENIOR SECURED OBLIGATIONS
SECTION 3.1 Subordination of Payment.
(a) General Notwithstanding anything in the Subordinated Loan Documents
to the contrary, Argyle agrees and covenants that the Subordinated Secured
Obligations are and shall be subordinate in right of payment to the Senior
Secured Obligations. Each of the Senior Lenders agrees that his or its
respective rights to payments from Borrower on the Senior Secured Obligations
shall be pari passu with the other Senior Lenders. The Senior Secured
Obligations shall not be deemed to have been paid in full until the Senior Loan
Documents shall have been terminated as provided therein and the Senior Lenders
shall each have received payment in full of the Senior Secured Obligations in
cash or equity as provided for in the Senior Loan Documents.
(b) Subordination of Payment. Until the Senior Secured Obligations have
been paid in full, the payment of the Subordinated Secured Obligations shall be
postponed and subordinated to the payment of all of the Senior Secured
Obligations except that the Subordinated Secured Obligations can be converted in
whole or in part into equity of the Borrower at any time in accordance with the
Subordinated Loan Documents. Except as provided in the immediately preceding
sentence, Argyle shall accept no payments or other distributions whatsoever on
account of the Subordinated Secured Obligations under and pursuant to the
Subordinated Loan Documents, nor shall any property or assets of the Borrower be
applied to the purchase or acquisition or retirement of any of the Subordinated
Secured Obligations.
(c) Conversion of Subordinated Secured Obligations and Senior Secured
Obligations. To the extent Argyle converts its Subordinated Secured Obligations
in whole into equity of the Borrower or any Senior Lender converts its Senior
Note in whole into equity of the Borrower, this Agreement as it pertains to
Argyle or such Senior Lender shall be terminated and deemed null and void and of
no further force or effect provided, however, that Argyle or such Senior Lender
shall have executed and delivered to the Borrower, at the Borrower's sole
expense, such documents as the Borrower shall reasonably request to evidence the
termination of its respective security interest in the Collateral held by Argyle
or such Senior Lender.
SECTION 3.2 Priority and Payment Over of Proceeds in Certain Events.
(a) Insolvency or Dissolution of the Borrower. Upon any payment or
distribution of all or any of the assets or securities of the Borrower of any
kind or character, whether in cash, property or securities, upon any
dissolution, winding up, liquidation, reorganization, arrangement, adjustment,
protection, relief or composition of the Borrower or its debts, whether
voluntary or involuntary or in bankruptcy, insolvency, receivership,
arrangement, reorganization, relief or other proceedings, or upon an assignment
for the benefit of creditors or any other marshaling of the assets and
liabilities of the Borrower or otherwise (any such event being an "Insolvency
Event"), all Senior Secured Obligations shall first be paid in full before
Argyle shall be entitled to receive any payment of the Subordinated Secured
Obligations. Upon the occurrence of any Insolvency Event, any payment or
distribution of assets or securities of the Borrower of any kind or character,
whether in cash, property or securities, to which Argyle would be entitled,
shall be made by the Borrower or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
<PAGE> 6
directly to or for application (in the case of cash) to or as collateral (in the
case of non-cash property or securities) for the payment in full of all Senior
Secured Obligations.
(b) Demand for or Acceleration of Payment of Subordinated Secured
Obligations. In the event that the Subordinated Secured Obligations are declared
due and payable or the maturity thereof is accelerated for any reason, then and
in such event, the Senior Lenders shall be entitled to receive payment equally
and ratably in full of all amounts due or to become due on or in respect of the
Senior Secured Obligations (whether or not a Default has occurred under the
Senior Loan Documents or such Senior Secured Obligations are, or have been
declared to be, due and payable prior to the date on which it otherwise would
have become due and payable) before Argyle shall be entitled to receive any
payment of the Subordinated Secured Obligations.
(c) Application of Proceeds. All amounts owing with respect to the
Senior Secured Obligations shall be equally and ratably secured with the
Subordinated Secured Obligations, to the extent perfected and enforceable, by a
first prior and perfected lien on and security interest in the Collateral
without distinction as to whether some Senior Secured Obligations or
Subordinated Secured Obligations are then due and payable and other Senior
Secured Obligations or Subordinated Secured Obligations are not then due and
payable. Upon any realization upon the Collateral, the parties each covenant and
agree that the proceeds thereof shall be applied (1) first, to any amounts owing
to the Senior Lenders relating to any Enforcement Actions; (2) second, equally
and ratably to the payment of all amounts of interest outstanding which
constitute the Senior Secured Obligations and Subordinated Secured Obligations
according to the aggregate amounts of such interest then owing to the holders of
such Senior Secured Obligations and such Subordinated Secured Obligations,
respectively; (3) third, equally and ratably to all amounts of principal
outstanding under the Senior Secured Obligations and the Subordinated Secured
Obligations according to the aggregate amounts of such principal then owing to
the holders of such Senior Secured Obligations and Argyle, respectively; (4)
fourth, equally and ratably to other amounts then due to the holders of the
Senior Secured Obligations and Argyle (including fees, expenses and premiums, if
any) with amounts prorated, if necessary, based on the aggregate amounts thereof
then owing to such holders; and (5) fifth, the balance, if any, shall be
returned to the Borrower or such other Persons as are entitled thereto.
(d) Certain Payments Held in Trust. In the event that, notwithstanding
the foregoing provisions prohibiting such payment or distribution, Argyle shall
have received any payment or distribution in respect of the Subordinated Secured
Obligations contrary to such provisions, then and in such event such payment or
distribution shall be received and held in trust for the Senior Lenders and
shall be paid over or delivered to the Senior Lenders for application (in the
case of cash) to or as collateral (in the case of non-cash property or
securities) for the equal and ratable payment or prepayment of all Senior
Secured Obligations in full.
SECTION 3.3 Suspension of Remedies. Until the Senior Secured
Obligations have been paid in full as provided for in the Senior Loan Documents,
Argyle shall not (i) ask, demand, or sue for any payment, distribution or any
other remedy in respect of the Subordinated Secured Obligations, or (ii)
commence, or join with any other creditor (other than the Senior Lenders) in
commencing, any Insolvency Event.
<PAGE> 7
SECTION 3.4. Subordination of Liens.
(a) General. Argyle agrees that its security interest and liens on the
Collateral are equal and ratable with the security interest and liens of the
Senior Lenders, and Argyle further agrees that until payment in full of the
Senior Secured Obligations as provided for in the Senior Loan Documents, (i)
Argyle shall not take any action to enforce any security interest or lien upon
the Collateral under and pursuant to the Subordinated Loan Documents, and (ii)
to the extent any conflict arises between the Senior Loan Documents and the
Subordinated Loan Documents, the provisions of the Senior Loan Documents shall
prevail.
(b) No Contest. Each of Argyle and the Senior Lenders agrees that it
will not at any time contest the validity, perfection, priority or
enforceability of the security interests and liens granted by the Borrower to
any other party to this Agreement.
(c) Rights of Argyle Not to be Impaired. The provisions of this
Agreement relating to the priority of payments are solely for the purpose of
defining the relative rights of the Senior Lenders on the one hand and Argyle on
the other hand and nothing herein shall impair, as between the Borrower and
Argyle, the obligations of the Borrower with respect to the Subordinated Loan
Documents which are unconditional and absolute.
SECTION 3.5 Rights of Senior Lenders Not to be Impaired. No right of
the Senior Lenders to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act in good faith
by any of the Senior Lenders, or by any noncompliance by the Borrower, with the
terms, provisions and covenants herein.
SECTION 3.6 Actions to Effectuate Subordination.
(a) Authorization to Agent to Act. Upon the occurrence of an event
described in Section 3.2(a) or an Event of Default under the Senior Loan
Documents, the November Lenders hereby appoint Steven F. Tripp (the "Agent"),
who is hereby irrevocably authorized and empowered (in his own name or in the
name of any of the November Lenders or otherwise), (i) to initiate any suit,
injunction or other equitable relief, claim, demand or action of any kind
whatsoever with respect to any effort to realize on the Collateral pursuant to
any of the Subordinated Loan Documents, the November Loan Documents or
otherwise, (ii) to file claims and proofs of claim and take such other action
(including, without limitation, voting the Subordinated Secured Obligations or
enforcing any security interest or other lien securing payment of the
Subordinated Secured Obligations) as he may deem necessary or advisable with
respect to the exercise or enforcement of any of the rights or interests in
respect of the Subordinated Secured Obligations and the Senior Secured
Obligations held by the November Lenders (any such act being an "Enforcement
Action"). The Agent will promptly notify Argyle of the exercise of any
Enforcement Action but the failure to give such notice shall not invalidate any
such exercise. Argyle shall refrain from, directly or indirectly, taking, filing
or pursuing any Enforcement Action of any kind whatsoever. (Pursuant to one or
more separate intercreditor agreements by and among the August Lenders and
Argyle, the August Lenders have authorized Argyle to act as agent on their
behalf under similar circumstances, and the Agent hereunder shall have no
obligation or authority to act on behalf of the August Lenders.)
Neither the Agent nor any company with which he is affiliated, nor any
of the directors, officers, agents or employees of such company shall be liable
for any action taken or omitted to be
<PAGE> 8
taken by him or them under or in connection with this Agreement in the absence
of his or their own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, the Agent (1) may treat the payee of any
Note as the holder thereof until the Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
the Agent; (2) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by him and
shall not be liable for any action taken or omitted to be taken in good faith by
him in accordance with the advice of such counsel, accountants, or experts; (3)
makes no warranty or representations to any Senior Lender and shall not be
responsible to any Senior Lender for any statements, warranties, or
representations made in or in connection with this Agreement other than those
statements, warranties or representations made by himself as the holder of
certain Senior Secured Obligations; (4) shall not have any duty to ascertain or
to inquire as to the performance or observance of any of the terms, covenants,
or conditions of this Agreement on the part of the Borrower, or to inspect the
property (including the books and records) of the Borrower; (5) shall not be
responsible to any Senior Lender for the due execution, legality, validity,
enforceability, genuineness, perfection, sufficiency, or value of this Agreement
or any other instrument or document furnished pursuant thereto; and (6) shall
incur no liability under or in respect of this Agreement by acting upon any
notice, consent, certificate, or other instrument or writing (which may be sent
by telegram, telex, or facsimile transmission) believed by him to be genuine and
signed or sent by the proper party or parties.
The November Lenders agree to indemnify the Agent (to the extent not
reimbursed by the Borrower) ratably according to the respective amounts of their
commitments, and the Borrower jointly and severally agrees to indemnify the
Agent, from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement or any
action taken or omitted by the Agent under this Agreement, provided that no
November Lender shall be liable for any portion of any of the foregoing
resulting from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each November Lender agrees to reimburse the Agent
(to the extent not reimbursed by the Borrower) promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees) incurred by
the Agent in connection with the preparation, administration, or enforcement of,
or legal advice in respect of rights or responsibilities under, this Agreement.
The Agent may resign at any time by giving at least sixty (60) days'
prior written notice thereof to the November Lenders and the Borrower and may be
removed at any time with or without cause by a vote of the November Lenders
holding a majority of the amount of the Senior Secured Obligations held by the
November Lenders. Upon any such resignation or removal, the November Lenders
shall have the right to appoint a successor Agent. If no successor Agent shall
have been so appointed by the November Lenders, and shall have accepted such
appointment, within thirty (30) days after the retiring Agent's giving of notice
of resignation or the November Lenders' removal of the retiring Agent, then the
retiring Agent may, on behalf of the November Lenders, appoint a successor
Agent. Upon the acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from his duties and obligations under this
Agreement. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this document shall inure to the benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
<PAGE> 9
(b) Argyle to Take Certain Actions. Argyle shall duly and promptly take
such action as the Agent may request (i) to collect the Subordinated Secured
Obligations for account of the Senior Lenders and to file appropriate claims or
proofs of claim in respect of the Subordinated Secured Obligations, (ii) to
execute and deliver to the Agent such powers of attorney, assignments or other
instruments as the Agent may request in order to enable it to enforce any and
all claims with respect to, and any security interests and other liens securing
payment of, the Subordinated Secured Obligations, (iii) to collect and receive
any and all payments or distributions that may be payable or deliverable upon or
with respect to the Subordinated Secured Obligations and (iv) to effectuate any
other provision hereof.
(c) Lender to Take Certain Actions. Each November Lender shall duly and
promptly take such action as the Agent may request (i) to collect the Senior
Secured Obligations for account of the Senior Lenders and to file appropriate
claims or proofs of claim in respect of the Senior Secured Obligations, (ii) to
execute and deliver to the Agent such powers of attorney, assignments or other
instruments as the Agent may request in order to enable it to enforce any and
all claims with respect to, and any security interests and other liens securing
payment of, the Senior Secured Obligations, (iii) to collect and receive any and
all payments or distributions that may be payable or deliverable upon or with
respect to the Senior Secured Obligations and (iv) to effectuate any other
provision hereof.
SECTION 3.7 Subrogation. When all Senior Secured Obligations then
outstanding have been paid in full and the Senior Lenders' obligations to extend
credit under all Senior Loan Documents have been terminated, Argyle shall be
subrogated to the rights of the holders of Senior Secured Obligations to receive
payments or distributions of assets of the Borrower that would be deemed payable
on the Senior Secured Obligations until the Subordinated Secured Obligations
shall be paid in full. For the purposes of such subrogation, no payments or
distributions to the holders of Senior Secured Obligations of any cash, property
or securities to which Argyle would be entitled except for the provisions of
this Agreement, and no payment over pursuant to the provisions of this Agreement
to the holders of Senior Secured Obligations by Argyle, shall, as between the
Borrower and their creditors other than the holders of Senior Secured
Obligations, on one hand, and Argyle on the other hand, be deemed to be a
payment by the Borrower to or on account of Senior Secured Obligations.
SECTION 3.8 Subordination Legend, Further Assurances. Argyle will cause
the Subordinated Notes and each other instrument now or hereafter held by it or
him evidencing the Subordinated Secured Obligations to be endorsed with the
following legend:
"The indebtedness evidenced by this instrument is subordinated to the
prior payment in full of certain Senior Secured Obligations (as defined
in the Intercreditor Agreement hereinafter referred to) pursuant to,
and to the extent provided in, that certain Intercreditor Agreement
dated November ___, 1998, by and among SPATIALIGHT, INC., a New York
corporation (the "Borrower"), ARGYLE CAPITAL MANAGEMENT CORPORATION, a
Delaware corporation, and the Senior Lenders (as defined therein).
This instrument may not be offered, sold or otherwise transferred until
the purchaser, assignee or transferee has become a party to and bound
by such Intercreditor Agreement."
<PAGE> 10
Argyle will further mark its books of account in such a manner as shall be
effective to give proper notice of the effect of this Intercreditor Agreement.
ARTICLE IV
COVENANTS
SECTION 4.1 Covenants of Argyle. Argyle hereby covenants and agrees
with the Senior Lenders that, unless the Senior Lenders shall otherwise agree in
writing, prior to the termination of the Senior Loan Documents and payment in
full of the Senior Secured Obligations:
(a) Argyle will not cancel or otherwise discharge any of the
Subordinated Secured Obligations (except for conversion into equity of the
Borrower as permitted by Article III or upon payment in full thereof to the
extent permitted by Article III).
(b) Argyle will not sell, assign, pledge, encumber or otherwise dispose
of any of the Subordinated Secured Obligations held by it unless such sale,
assignment, pledge, encumbrance or disposition is made expressly subject to this
Agreement.
(c) Argyle will not permit the terms of any of the Subordinated Secured
Obligations held by it to be amended or modified in such a manner as to have any
adverse effect upon the rights or interest of any Senior Lender hereunder.
(d) Argyle will not take additional security for the payment of any
Subordinated Secured Obligations or any other obligation of the Borrower to
Argyle or any August Lender, or obtain a lien, security interest or other charge
or encumbrance of any nature whatsoever against the Borrower's property, whether
now owned or hereafter acquired, without first giving ten (10) days notice to
the Senior Lenders confirming that such additional security constitutes
Collateral as defined in, and governed by, this Agreement.
(e) Argyle will extend the maturity date of the Subordinated Notes to
the later of (i) December 31, 1998 or (ii) the maturity date of the Senior
Notes, as extended from time to time under and pursuant to the terms thereof.
(f) Argyle will decrease the interest rate on the Subordinated Notes to
the rate of six percent (6%) per annum.
(g) Argyle agrees to provide to the Agent, within 10 days after the
execution of this Agreement, (i) a copy of each Subordinated Note and each other
instrument now or hereafter held by it evidencing the Subordinated Secured
Obligations reflecting the addition of the legend required by Section 3.8 of
this Agreement, and (ii) an amendment or modification to each Subordinated Note
reflecting the decrease in the interest rate on the Subordinated Notes to the
rate of six percent (6%) per annum as required by Section 4.1(f) of this
Agreement. Argyle further agrees to provide the Agent with copies of any and all
modifications or amendments to the Subordinated Loan Documents promptly upon the
execution thereof.
(h) Argyle will not extend any credit to the Borrower in excess of
$1,188,000 that is secured by the Collateral or any other property or assets of
the Borrower.
<PAGE> 11
(i) At any time and from time to time, upon the written request of the
Senior Lenders, Argyle and each of the August Lenders shall promptly and duly
execute and deliver any and all such further instruments and documents and take
such action as Senior Lenders may reasonably deem necessary or desirable to
obtain the full benefits of this Agreement.
SECTION 4.2 Covenants of the Senior Lenders. The Senior Lenders hereby
covenant and agree with each other and with Argyle as follows:
(a) The August Lenders will not extend any credit to the Borrower in
excess of $1,000,000 (i.e. collectively with respect to extensions of credit by
the August Lenders) that is secured by the Collateral or any other property or
assets of the Borrower. Each of the August Lenders represents and warrants that
the outstanding indebtedness owing to him or it by the Borrower as of the date
of this Agreement is accurately set forth beside his or its name on Schedule B
annexed hereto.
(b) The November Lenders will not extend any credit to the Borrower in
excess of $2,000,000 (i.e. collectively with respect to extensions of credit by
the November Lenders) that is secured by the Collateral or any other property or
assets of the Borrower. Each of the November Lenders represents and warrants
that the outstanding indebtedness owing to him or it by the Borrower as of the
date of this Agreement is accurately set forth beside his or its name on
Schedule A annexed hereto.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Amendments, etc. No amendment or waiver of any provision of
this Agreement or consent to any departure by Argyle herefrom shall in any event
be effective unless the same shall be in writing and signed by the Senior
Lenders, and then such waiver or consent shall be effective only in the specific
instance and the specific purpose for which given.
SECTION 5.2 Expenses. Argyle agrees to pay, on demand, to the Senior
Lenders the amount of any and all reasonable expenses, including the reasonable
fees and expenses of its counsel, which the Agent or any Senior Lender may incur
in connection with the exercise or enforcement of any of the Senior Lenders'
rights, remedies or interests hereunder against Argyle to the extent Argyle
breaches any of the covenants or provisions contained in this Agreement.
SECTION 5.3 Notices. Except as otherwise provided herein, whenever it
is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by another, or whenever any of the parties desires to give or
serve upon another any communication with respect to this Agreement, each such
notice, demand, request, consent, approval, declaration or other communication
shall be in writing and shall be delivered in person (or by personal delivery,
delivery service or overnight courier service) with receipt acknowledged, or
telecopied with receipt acknowledged, or sent by certified mail, return receipt
requested, postage prepaid, addressed as hereafter set forth, or mailed by
registered mail, return receipt requested, postage prepaid, addressed as
follows:
<PAGE> 12
If to the Borrower: Spatialight, Inc.
8-C Commercial Boulevard
Novato, California 94949
Attention: Michael H. Burney
(415) 883-1693
(415) 883-3363 (Fax)
If to Argyle: Argyle Capital Management Corporation
14 East 82nd Street
New York, NY 10028
212-517-7313
212-517-4031 (Fax)
If to any November
Lender: At the address set forth for
such Lender on Schedule A
annexed hereto
If to Agent: Steven F. Tripp
2021 Brook Highland Ridge
Birmingham, AL 35242
205-991-3375
205-991-3376 (Fax)
If to any August
Lender: c/o Argyle Capital Management Corporation
14 East 82nd Street
New York, NY 10028
212-517-7313
212-517-4031 (Fax)
or at such other address or facsimile number as may be substituted by notice
given as herein provided. The giving of any notice required hereunder may be
waived in writing by the party entitled to receive such notice. Every notice,
demand, request, consent, approval, declaration or other communication hereunder
shall be deemed to have been duly given or served on the date on which
personally delivered, in person, by delivery service or by overnight courier
service, with receipt acknowledged, or the date of the telecopy transmission,
with receipt acknowledged or three (3) Business Days after the same shall have
been deposited in the United States mail. Failure or delay in delivering copies
of any notice, demand, request, consent, approval, declaration or other
communication to persons designated above to receive copies shall in no way
adversely affect the effectiveness of such notice, demand, approval, declaration
or other communication. A copy of any notice sent by telecopier shall be sent by
personal delivery or courier service. Delivery of said notice shall be deemed to
have been made on the earlier of receipt of the telecopy notice or the copy of
said notice sent by personal delivery or courier service.
SECTION 5.4 Governing Law. This Agreement shall be governed by, and
construed in accordance with the internal laws of the State of New York.
<PAGE> 13
SECTION 5.5 Invalidity. In the event that any provision hereof shall be
deemed to be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court, this Agreement shall be construed as
not containing such provision, but only as to such jurisdictions where such law
or interpretation is operative, and the invalidity of such provision shall not
affect the validity of any remaining provision hereof; and any and all other
provisions hereof which are otherwise lawful and valid shall remain in full
force and effect.
SECTION 5.6 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY, TO
THE FULLEST EXTENT PERMITTED BY LAW, WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT
UNDER OR IN CONNECTION WITH THIS AGREEMENT.
SECTION 5.7 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument. Execution and delivery by facsimile shall constitute good and valid
execution and delivery unless and until replaced or substituted by an original
executed instrument.
IN WITNESS WHEREOF, the parties have executed this Intercreditor
Agreement as of the date set forth above.
SPATIALIGHT, INC., a New York corporation
By:
--------------------------------------
Michael H. Burney
Chief Executive Officer
ARGYLE CAPITAL MANAGEMENT CORPORATION,
a Delaware corporation
By:
--------------------------------------
Robert A. Olins, President
THE AUGUST LENDERS:
JERRY WHITLOCK, an individual
By: ARGYLE CAPITAL MANAGEMENT CORPORATION,
a Delaware corporation, as agent
By:
--------------------------------------
Robert A. Olins, President
MANSOUR RASNAVAD, an individual
By: ARGYLE CAPITAL MANAGEMENT CORPORATION,
a Delaware corporation, as agent
By:
--------------------------------------
Robert A. Olins, President
<PAGE> 14
NETWORK FINANCE INCORPORATED,
a _____________________corporation,
By: ARGYLE CAPITAL MANAGEMENT CORPORATION,
a Delaware corporation, as agent
By:
--------------------------------------
Robert A. Olins, President
FARHAD AZIMA, an individual
By: ARGYLE CAPITAL MANAGEMENT CORPORATION,
a Delaware corporation, as agent
By:
--------------------------------------
Robert A. Olins, President
THE NOVEMBER LENDERS:
[Signature lines of Filing Persons omitted]
ACCEPTED AND AGREED TO:
- -----------------------------------------
Steven F. Tripp, as Agent
<PAGE> 1
Exhibit 6. Form of Registration Rights Agreement
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of November ___, 1998 (the
"Agreement") between SpatiaLight, Inc., a New York corporation (the "Company"),
and {_____}, a Lender.
ARTICLE I
CERTAIN DEFINITIONS
1.1 "Business Day" means any day on which the Nasdaq National Market is
open for trading.
1.2 "Closing Date" means the date of closing of the loan transaction
contemplated by the Convertible Note.
1.3 "Common Stock" means the common stock, par value $.01 per share, of
the Company, any security of the Company now outstanding or hereafter issued by
it which is convertible or exchangeable into Common Stock and any shares of
capital stock of the Company hereafter authorized which is not limited to a
fixed sum or percentage of par or stated value in respect to the rights of their
holders to participate in dividends or in the distribution of assets upon any
liquidation, dissolution or winding up of the Company.
1.4 "Convertible Notes" means the Company's 6% Convertible Secured
Notes in an aggregate not to exceed Two Million ($2,000,000) Dollars in favor of
Lender and the other Lenders participating in the Convertible Secured Loan.
1.5 "Demand Registration" has the meaning set forth in Paragraph 3.1.
1.6 "Eligible Securities" means all or any portion of the shares of
Common Stock issuable or issued (a) upon the conversion of any Convertible Note,
(b) in payment of any amount of interest due on any Convertible Note, (c) upon
the conversion of any notes outstanding as of the date hereof to Argyle Capital
Management Corporation, and (d) in each of case (a), (b) or (c), all other
securities issued with respect thereto by reason of dividends, stock splits,
combinations or similar transactions. Securities shall cease to be Eligible
Securities for all purposes of this Agreement when (i) a registration statement
with respect to the sale of such securities shall have become effective under
the Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (ii) such securities are permitted to be sold
pursuant to Rule 144(k) (or any successor provision to such Rule) under the
Securities Act, (iii) such securities shall have been otherwise transferred
pursuant to an applicable exemption under the Securities Act, new certificates
for such securities not bearing a legend restricting further transfer shall have
been delivered by the Company and such securities shall be freely transferable
to the public without registration under the Securities Act, or (iv) a written
opinion of counsel of the Company addressed to the Stockholder owning such
securities to the effect that such securities may be sold without registration
under the Securities Act has been delivered to such Stockholder.
<PAGE> 2
1.7 "Person" means an individual, a partnership (general or limited),
limited liability company, corporation, joint venture, business trust,
cooperative, association or other form of business organization, whether or not
regarded as a legal entity under applicable law, a trust (inter vivos or
testamentary), an estate of a deceased, insane or incompetent person, a
quasi-governmental entity, a government or any agency, authority, political
subdivision or other instrumentality thereof, or any other entity.
1.8 "Piggyback Registration" has the meaning set forth in Paragraph
4.1.
1.9 The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing with the SEC a registration
statement in compliance with the Securities Act and the declaration or ordering
of the effectiveness of such registration statement.
1.10 "Registration Expenses" shall mean all expenses, other than
Selling Expenses (as defined below), incurred by the Company in complying with
this Agreement, including, without limitation, all registration, qualification
and filing fees, printing expenses, escrow fees, fees and disbursements of
counsel, accountants and other experts employed by the Company, blue sky fees
and expenses, the expense of any special audits incident to or required by any
such registration and the expenses contemplated by Paragraph 6.3.
1.11 "Resale Registration" shall have the meaning set forth in Article
2.
1.12 "SEC" means the Securities and Exchange Commission.
1.13 "Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
1.14 "Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered on
behalf of the Stockholders.
1.15 "Selling Stockholder" means any Stockholder selling Eligible
Securities registered pursuant to Article 2, 3 or 4 hereof.
1.16 "Stockholder" means any person holding Eligible Securities to whom
the rights under this Agreement have been transferred in accordance with
Paragraph 10.3.
ARTICLE 2
RESALE REGISTRATION
The Company hereby agrees to file under the Securities Act not later
than 90 days after the Company has delivered the audited financial statements
referred to in Section 5(i) of the Convertible Note, a registration statement on
any appropriate registration form to register all Eligible Securities ("Resale
Registration"). The Company shall have the right to include in any such Resale
Registration any other securities of the Company, including, but not limited to,
any securities of the Company (the "Earlier Securities") desired to be
registered by persons or entities also having registration rights granted by the
Company.
<PAGE> 3
ARTICLE 3
DEMAND REGISTRATION
3.1 Requests for Registration. At any time after December 31, 1999, the
holders of at least a majority of the Eligible Securities then deemed
outstanding may, on not more than one occasion during the term of this
Agreement, request registration on an appropriate registration form under the
Securities Act of all or part of their Eligible Securities for purposes of
conducting an underwritten offering thereof. Any registration requested pursuant
to this Paragraph 3.1 is referred to herein as a "Demand Registration." The
request for a Demand Registration shall specify the approximate number of
Eligible Securities requested to be registered and the anticipated per share
price range for such offering.
3.2 Notice to Other Holders. Within ten days after receipt of a request
for a Demand Registration, the Company shall give written notice thereof to all
the other holders of Eligible Securities then deemed outstanding. Each of the
other holders shall have the right, within 15 Business Days after the delivery
of such notice, to request that the Company include all or a portion of such
holder's Eligible Securities in such Demand Registration.
3.3 Permitted Demand Registrations. The Stockholders shall be entitled
to request the Demand Registration only if the aggregate offering value of the
Eligible Securities requested to be registered in any such registration equals
at least $500,000. A registration shall not count as a permitted Demand
Registration until it has become effective (unless the Demand Registration has
not become effective due solely to the fault of the holders requesting such
registration).
3.4 Priority on Demand Registrations. The Company shall not include in
any Demand Registration any securities that are not Eligible Securities without
the prior written consent of the Selling Stockholders of at least a majority of
the Eligible Securities included in such registration. If the managing
underwriters in a Demand Registration advise the Company in writing that in
their opinion the number of Eligible Securities and, if permitted hereunder,
other securities requested to be included in such offering, exceeds the number
of Eligible Securities and other securities, if any, which can be sold in an
orderly manner in such offering within a price range acceptable to the Selling
Stockholders of a majority of the Eligible Securities initially requesting
registration, the Company shall include in such registration, first, the number
of Eligible Securities requested to be included by Selling Stockholders that
initially requested such registration which in the opinion of such underwriters
can be sold in an orderly manner within the price range of such offering, pro
rata among such Selling Stockholders on the basis of the amount of Eligible
Securities owned by each such Selling Stockholder, second, the number of
Eligible Securities requested to be included by Selling Stockholders that
elected to participate in such registration pursuant to Section 3.2 which in the
opinion of such underwriters can be sold in an orderly manner within the price
range of such offering, pro rata among such Selling Stockholders on the basis of
the amount of Eligible Securities owned by each such Selling Stockholder, and
third, the number of securities that are not Eligible Securities that the
Selling Stockholders agreed to include in such registration as provided above
which in the opinion of such underwriters can be sold in an orderly manner
within the price range of such offering, pro rata among such the Persons holding
such securities on the basis of the amount of such securities owned by each such
Person.
3.5 Deferral of Registration Demand in the Event of Company Offering.
In the event that prior to the time a Demand Registration is requested the
Company has in good faith commenced the
<PAGE> 4
preparation of a registration statement for an underwritten offering of its
securities (a "Company Offering") and the managing underwriter delivers a
written opinion (a "Transaction Deferral Opinion") to the requesting
Stockholders stating, in its good faith opinion, that the proposed offering
pursuant to the Demand Registration will materially and adversely affect the
Company Offering, then the Company will be permitted to defer the filing of the
registration statement pursuant to the Demand Registration until the earliest of
(a) the abandonment of the Company Offering, (b) 90 days after receipt by the
requesting Stockholders of the Transaction Deferral Opinion (unless the Company
Offering has become effective on or prior to such 90th day) and (c) if the
Company Offering has become effective on or prior to such 90th day, 120 days
after the effective date of the Company Offering (or such shorter period as may
be requested by the managing underwriter for the Company Offering). The Company
will not be permitted to defer a Demand Registration pursuant to this Paragraph
3.5 more than once in any 12-month period. If the Company defers any
registration statement pursuant to this Paragraph 3.5 and the requesting
Stockholders determine not to proceed with such registration on or prior to the
end of the permitted deferral period, the registration shall not be counted as a
permitted Demand Registration hereunder. Notwithstanding the foregoing, if a
Demand Registration is made within 60 days prior to the end of the Company's
then current fiscal year and such registration is to be effected other than on
Form S-2 or other comparable form for the registration of securities, the
Company will have the right to delay the filing of a registration statement for
150 days or until the Company receives its audited financial statements for such
fiscal year, whichever occurs first.
3.6 Restrictions on Registration. The Company shall not be obligated to
effect any Demand Registration within 120 days after the effective date of a
registration involving an underwritten public offering by the Company and in
which the Stockholders were given piggyback rights pursuant to Article 4 and in
which there was no reduction in the number of Eligible Securities requested to
be included. The Company may postpone for up to 120 days the filing or the
effectiveness of a registration statement for a Demand Registration if the
Company's board of directors determines in its reasonable good faith judgment
that such Demand Registration would reasonably be expected to have a material
adverse effect on any proposal or plan by the Company to engage in any
acquisition of assets (other than in the ordinary course of business) or any
merger, consolidation, tender offer, reorganization or similar transaction;
provided that in such event, the Stockholders initially requesting such Demand
Registration shall be entitled to withdraw such request and, if such request is
withdrawn, the Demand Registration shall not count as a Demand Registration
hereunder. The Company may delay a Demand Registration hereunder only once in
any twelve-month period.
3.7 Selection of Underwriters. The holders of a majority of the
Eligible Securities initially requesting registration hereunder shall have the
right to select the investment banker(s) and manager(s) to administer the
offering, if any, subject to the Company's approval which shall not be
unreasonably withheld.
<PAGE> 5
ARTICLE 4
PIGGYBACK REGISTRATION
4.1 Right to Piggyback. Commencing on the date hereof, whenever the
Company proposes to register any of its securities under the Securities Act for
an underwritten public offering (other than pursuant to a Demand Registration)
and the registration form to be used may be used for the registration of
Eligible Securities (a "Piggyback Registration"), the Company shall give prompt
written notice (in any event within three Business Days after its receipt of
notice of any exercise of demand registration rights other than under this
Agreement) to all holders of Eligible Securities then deemed outstanding of its
intention to effect such a registration and shall include in such registration
all Eligible Securities with respect to which the Company has received written
requests for inclusion therein within 15 Business Days after delivery of the
Company's notice. Notwithstanding the foregoing, the Company shall not be
required to effect any registration of Eligible Securities under this Paragraph
4.1 incidental to the registration of any of its securities in connection with
mergers, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans.
4.2 Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the Company, the Company will include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the Eligible
Securities requested to be included in such registration, pro rata among the
holders of such Eligible Securities on the basis of the number of shares owned
by each such holder, and (iii) third, other securities requested to be included
in such registration.
4.3 Priority on Secondary Registrations. If a Piggyback Registration is
an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially requesting
such registration, the Company shall include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration, (ii) second, the Eligible Securities requested to be included in
such registration, pro rata among the holders of such Eligible Securities on the
basis of the number of shares owned by each such holder, and (iii) third, other
securities requested to be included in such registration.
4.4 Selection of Underwriters. If any Piggyback Registration is an
underwritten secondary registration on behalf of the holders of the Company's
securities, the selection of investment banker(s) and manager(s) for the
offering must be reasonably acceptable to the holders of a majority of the
Eligible Securities included in such Piggyback Registration. Such approval will
be assumed unless notice to the contrary is given by the holders of a majority
of the Eligible Securities included in such Piggyback Registration to the
Company within ten days of such holders' receipt of notice of selection by the
Company.
4.5 Other Registrations. If the Company has previously filed a
registration statement with respect to Eligible Securities pursuant to Article 3
or pursuant to this Article 4 and if such previous registration has not been
withdrawn or abandoned, the Company shall not, without the prior
<PAGE> 6
written consent of the holders of a majority of the Eligible Securities included
therein, file or cause to be effected any other registration for the
underwritten offering, issue or sale of any of its equity securities or
securities convertible or exchangeable into or exercisable for its equity
securities under the Securities Act (except on Form S-8 or any successor form),
whether on its own behalf or at the request of any holder or holders of such
securities, until a period of at least 120 days has elapsed from the effective
date or earlier withdrawal of such previous registration.
4.6 Determination Not to Register or to Delay Registration. If at any
time after giving written notice of its intention to register any securities as
to which the Stockholders shall have the rights provided in this Article 4 and
prior to the effective date of the registration statement with respect thereto,
the Company shall determine for any reason not to register or to delay
registration of such securities, the Company may, at its election, give written
notice of such determination to the Stockholders and, thereupon, (i) in the case
of a determination not to register, the Company shall be relieved of its
obligation to register any Eligible Securities in connection with such
registration and (ii) in the case of a determination to delay such registration,
the Company shall be permitted to delay registration of any Eligible Securities
requested to be included in such registration for the same period as the delay
in registering the other securities proposed to be registered by the Company,
but, in either such case, without prejudice to the rights of the holders of
Eligible Securities under Articles 2 and 3.
ARTICLE 5
HOLDBACK AGREEMENTS
5.1 Holdback by Stockholders. Each Stockholder shall not effect any
public sale or distribution (including sales pursuant to Rule 144) of equity
securities of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, during the five business days prior to and, if
required by the underwriter, the 90-day period (or such shorter period as the
underwriters managing the registered public offering may permit) beginning on
the effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration in which Eligible Securities are included (except as part
of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
5.2 Holdback by Company. In connection with any underwritten
registration, the Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the five business days prior to and
during the 90-day period (or such longer period as may be requested by the
underwriters managing the registered public offering) beginning on the effective
date of any underwritten Demand Registration or any underwritten Piggyback
Registration (except as part of such underwritten registration or pursuant to
registrations on Form S-8 or any successor form), unless the underwriters
managing the registered public offering otherwise agree, and (ii) shall use its
reasonable best efforts to cause each holder of at least 5% (on a fully-diluted
basis) of its Common Stock, or any securities convertible into or exchangeable
or exercisable for Common Stock, purchased from the Company at any time after
the date of this Agreement (other than in a registered public offering or
pursuant to stock options granted under a stock option plan primarily for
employees, officers or directors) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
<PAGE> 7
ARTICLE 6
REGISTRATION EXPENSES
6.1 Registration Expenses. All Registration Expenses in connection with
any registration pursuant to this Agreement shall be borne by the Company
whether or not it has become effective and whether or not such registration has
counted as the permitted Demand Registrations (unless such registration does not
become effective due solely to the fault of the Selling Stockholders requesting
such registration). The Company shall, 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 or quarterly review, the expense of any liability insurance and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or on
the NASD automated quotation system.
6.2 Selling Expenses. The Selling Stockholders shall be responsible for
all Selling Expenses relating to Eligible Securities registered on behalf of the
Selling Stockholders.
6.3 Fees and Disbursements of Stockholders' Counsel. In connection with
the Resale Registration, the Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Eligible Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Eligible Securities initially
requesting such registration.
6.4 Allocation of Certain Expenses. To the extent Registration Expenses
are not required to be paid by the Company, each holder of securities included
in any registration hereunder shall pay those Registration Expenses allocable to
the registration of such holder's securities so included, and any Registration
Expenses not so allocable shall be borne by all sellers of securities included
in such registration in proportion to the aggregate selling price of the
securities to be so registered.
ARTICLE 7
REGISTRATION PROCEDURES
7.1 Registration and Qualification. The Company shall, (i) pursuant to
Article 2 and (ii) whenever the Stockholders have requested that any Eligible
Securities be registered pursuant to this Agreement, use its reasonable best
efforts to effect the registration and the sale of such Eligible Securities in
accordance with the intended method of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) prepare and file with the SEC a registration statement
with respect to such Eligible Securities and use its reasonable best
efforts to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company shall furnish to the
counsel selected by the holders of a majority of the Eligible
Securities covered by such registration statement copies of all such
documents proposed to be filed, for review by such counsel for a period
of at least three business days after its receipt thereof) and keep the
registration statement continuously effective under the Securities Act
(i) in the case of the Resale Registration, until the earlier of (X)
the fifth anniversary of the Closing Date and (Y) such date as of which
all Eligible Securities shall cease to be Eligible Securities and (ii)
in the case of the Demand
<PAGE> 8
Registration and any Piggyback Registration, for a period of not less
than one year (or such shorter period as may be required until all of
the Eligible Securities so registered have been sold);
(b) notify each Selling Stockholder of the effectiveness of
each registration statement filed hereunder and 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 for the period described in
subparagraph (a) and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the
intended methods of disposition by the Selling Stockholders set forth
in such registration statement;
(c) furnish to each Selling Stockholder such number of copies
of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the
Eligible Securities owned by Selling Stockholders;
(d) use its reasonable best efforts to register or qualify
such Eligible Securities under such other securities or blue sky laws
of such jurisdictions as any Selling Stockholder reasonably requests
and do any and all other acts and things which may be reasonably
necessary or advisable to enable such Selling Stockholder to consummate
the disposition in such jurisdictions of the Eligible Securities owned
by such Selling Stockholder; provided, however, that the Company shall
not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but
for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) notify each Selling Stockholder, 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 contains an untrue
statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such
Selling Stockholder, the Company will prepare a supplement or amendment
to such prospectus so that, as thereafter delivered to the purchasers
of such Eligible Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to
make the statements therein not misleading;
(f) as soon as practicable after the Common Stock shall be
eligible for listing on the Nasdaq National Market or, failing that,
the Nasdaq SmallCap Market, use all reasonable efforts to cause all
such Eligible Securities to be listed on the Nasdaq National Market or
the Nasdaq SmallCap Market, as the case may be;
(g) provide a transfer agent and registrar for all such
Eligible Securities not later than the effective date of such
registration statement;
<PAGE> 9
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other
reasonable actions as the holders of a majority of the Eligible
Securities being sold or the underwriters, if any, reasonably request
in order to expedite or facilitate the disposition of such Eligible
Securities (including effecting a stock split or a combination of
shares);
(i) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the SEC;
(j) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any common stock included in such
registration statement for sale in any jurisdiction, the Company shall
use its reasonable best efforts promptly to obtain the withdrawal of
such order;
(k) use its reasonable best efforts to cause such Eligible
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the sellers thereof to consummate the
disposition of such Eligible Securities; and
7.2 Furnishing Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement with
respect to the Eligible Securities of any Selling Stockholder that such Selling
Stockholder shall furnish to the Company such information regarding itself, the
Eligible Securities held by it and the intended method of disposition of such
securities as shall be required to effect the registration of such Selling
Stockholder's Eligible Securities.
7.3 Underwriting. In the event that any registration pursuant to this
Agreement shall involve, in whole or in part, an underwritten offering, the
Company may require Eligible Securities to be included in such underwriting on
the same terms and conditions as shall be applicable to the Common Stock being
sold through underwriters under such registration. In such case, the holders of
Eligible Securities on whose behalf Eligible Securities are to be distributed by
such underwriters shall be parties to any such underwriting agreement.
ARTICLE 8
INDEMNIFICATION
8.1 In the event of any registration of any Eligible Securities
hereunder, the Company hereby agrees to indemnify and hold harmless each
Stockholder and, to the extent applicable, its directors and officers, its
partners, its trustees and each Person who controls any of such Persons against
any losses, claims, damages, liabilities and expenses, joint or several, to
which such Person may be subject under the Securities Act or otherwise insofar
as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any final prospectus included therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, or (ii)
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
the Company
<PAGE> 10
will promptly reimburse each such Person for any legal or any other expenses
reasonably incurred by such Person in connection with investigating or defending
any such loss, claim, damage, liability, action or proceeding; provided that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, any final
prospectus, amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Selling Stockholders
expressly for use in the registration statement. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of a
Selling Stockholder or any such Person and shall survive the transfer of such
securities by the Selling Stockholders.
8.2 The Selling Stockholders agree severally and not jointly to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Paragraph 8.1 of this Article 8) the Company, each director of the
Company, each officer of the Company who shall sign such registration statement,
and each Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement in or omission from such
registration statement, any final prospectus included therein, or any amendment
or supplement thereto, but only to the extent that such statement or omission
was made in reliance upon and in conformity with written information furnished
by such Selling Stockholders to the Company expressly for use in the
registration statement; provided that the obligation to indemnify and the
contribution obligation set forth in Article 9 hereof will be limited to the
gross proceeds received by such holder from the sale of Eligible Securities.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such director, officer
or controlling Person and shall survive the transfer of the registered
securities by the Selling Stockholders and the expiration of this Agreement.
8.3 Indemnification similar to that specified in the preceding
subdivisions of this Article 8 (with appropriate modifications) shall be given
by the Company and the Selling Stockholders with respect to any required
registration or other qualification of such Eligible Securities under any
federal or state law or regulation of governmental authority other than the
Securities Act.
ARTICLE 9
CONTRIBUTION
Subject to the limitation on indemnification and contribution set forth
in Section 8.2 of Article 8, if the indemnification provided for in Article 8
hereof is unavailable to a party entitled to indemnification in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then each
indemnifying party, in lieu of indemnifying 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 the Company on the one hand and
of the Selling Stockholders on the other in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or expenses
as well as any other relevant equitable considerations. The relative fault of
the Company on the one hand and of the Selling Stockholders on the other 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 the Company, or by the
Selling Stockholders, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The indemnity and contribution obligations of each indemnifying party
<PAGE> 11
set forth herein shall be in addition to any liability or obligation such
indemnifying party may otherwise have to any indemnified party, including under
this Agreement.
ARTICLE 10
MISCELLANEOUS
10.1 No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into nor shall it, on or after the date hereof, enter into, any
agreement with respect to its capital stock that is inconsistent with the rights
granted to the Stockholders herein or otherwise conflicts with the provisions
hereof.
10.2 Modification and Amendment. This Agreement may not be changed,
modified, discharged or amended, except by an instrument signed by the
Stockholders owning at least 50% of the Eligible Securities.
10.3 Transfer of Registration Rights. The obligation of the Company to
register Eligible Securities granted to Selling Stockholders hereunder may be
assigned to one or more transferees or assignees of Selling Stockholders, as the
case may be, in connection with any transfer or assignment in a private
transaction of Eligible Securities. Any transfer of registration rights pursuant
to this Section shall be effective upon receipt by the Company of written notice
from a Selling Stockholder transferring Eligible Securities (i) stating the name
and address of the transferee, (ii) the number of Eligible Securities
transferred and (iii) the date of transfer, which notice shall be accompanied by
an agreement of the transferee stating that all of the terms and provisions of
this Agreement will be binding upon and enforceable against such transferee.
10.4 Notices All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by overnight courier delivery
service, facsimile transmission or by certified mail, return receipt requested,
postage prepaid. Notices shall be deemed given when actually received, which
shall be deemed to be not later than the next Business Day if sent by overnight
courier or facsimile transmission or after five Business Days if sent by mail.
Notice to Stockholders shall be made to the address listed on the stock transfer
records of the Company. Notice to the Company shall be made to the Company's
principal executive offices at 8-C Commercial Boulevard, Novato, California
94949, or such other address for which the Company has given written notice to
the Stockholder.
10.5 Captions. The captions or headings in this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit
the scope or intent of this Agreement.
10.6 Severability. If any clause, provision or section of this
Agreement shall be invalid or unenforceable, the invalidity or unenforceability
of such clause, provision or section shall not affect the enforceability or
validity of any of the remaining clauses, provisions or sections hereof to the
extent permitted by applicable law.
10.7 Governing Law. This Agreement shall be construed and enforced in
accordance with the internal laws of the State of New York, without reference to
its rules as to conflicts or choice of laws.
<PAGE> 12
10.8 Entire Agreement. This Agreement constitutes the entire agreement
and understanding among the parties and supersedes any prior understandings
and/or written or oral agreements among them respecting the subject matter
herein.
10.9 Counterparts. This Agreement may be executed in counterparts, each
of which shall be an original, but all of which together shall constitute one
and the same instrument. Execution and delivery by facsimile shall constitute
good and valid execution and delivery unless and until replaced or substituted
by an original executed instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed as of the day and year first above written.
SPATIALIGHT, INC.
By
---------------------------------
Michael H. Burney
Authorized Signatory
Lender:
-----------------------------------
{_____}
<PAGE> 1
Exhibit 7. Form of Note Holders' Representative Agreement
NOTE HOLDERS' REPRESENTATIVE AGREEMENT
This NOTE HOLDERS' REPRESENTATIVE AGREEMENT (this "Agreement")
is entered into as of the _____ day of November, 1998, by and among Steven F.
Tripp ("SFT"), on the one hand, and the holders of certain convertible secured
notes issued by Spatialight, Inc. (such holders are hereinafter referred to as
the "Holders"), on the other.
R E C I T A L S
WHEREAS, Spatialight, Inc., a New York corporation
("Spatialight"), and the Holders have entered into certain Convertible Secured
Loan Agreements (the "Loan Agreements"), which provide, inter alia, that Holders
shall, under certain conditions, release funds to Spatialight in an amount not
to exceed $2,000,000 in the aggregate;
WHEREAS, Section 6.4 of the Loan Agreements provides that the
Holders, acting as a group, shall have the right to nominate one candidate at
the next election of the board of directors of Spatialight, which nominee shall
be included in Spatialight's slate of directors in all proxy materials sent to
the shareholders of Spatialight;
WHEREAS, the Holders desire to appoint a representative (the
"Holders' Representative") as agent to act on their behalf with respect to the
matters described in this Agreement;
WHEREAS, the Holders also desire to appoint a collateral agent
(the "Collateral Agent") to act as collateral agent on their behalf with respect
to the security interests granted in favor of the Holders by Spatialight and by
Spatialight of California, Inc.; and
WHEREAS, the Holders recognize that there will be expenses
incidental to the transactions contemplated by the Loan Agreements that cannot
be specifically determined as of the date of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Holders agree among themselves
and with SFT as follows:
1. Definitions. Capitalized terms in this Agreement, unless
otherwise defined herein, shall have the same meaning ascribed to those terms in
the Loan Agreements.
2. Representative. Each of the Holders hereby irrevocably
makes, constitutes and appoints SFT as the Holders' Representative to act on
such Holder's behalf, with such authority and powers as are necessary,
appropriate or helpful to properly represent the Holders as provided in this
Agreement. In the event SFT, or any successor Holders' Representative, shall
cease to serve as the Holders' Representative under this Agreement for any
reason whatsoever, including the resignation of the Holders' Representative, the
Holders, with each such Holder voting its, his or her respective amount of the
total debt owed by Spatialight to the Holders (the "Debt"), promptly shall elect
a successor Holders' Representative to serve under this Agreement. The
preference of the
<PAGE> 2
Holders holding a majority of the Debt, as indicated by a vote of the Holders,
shall elect the successor Holders' Representative. The election of a Holders'
Representative in the manner provided in this Paragraph 2 shall be final and
binding upon all of the Holders. The decisions and actions of any successor
Holders' Representative shall be, for all purposes, those of a Holders'
Representative as if originally named herein.
3. Escrow Agreement . The Holders shall designate an account
at AmSouth Bank (together with any replacement bank named subsequently by the
Holders' Representative, the "Bank"), for the receipt of all cash received from
the Holders (the "Loan Funds"). The Loan Funds shall be held by the Bank
pursuant to an escrow agreement, in form as approved by the Holders'
Representative (the "Escrow Agreement").
4. Collateral Agent.
(a) Each Holder hereby designates and appoints SFT
(the "Collateral Agent") as the collateral agent for such holder under the
Security Agreement dated of even date herewith made by Spatialight and by
Spatialight of California, Inc., and authorizes the Collateral Agent, in such
capacity, to be the secured party under said Security Agreement and to take such
action on behalf of the Holders and to exercise such powers and perform such
duties as are expressly given to the Collateral Agent by the terms of this
Agreement and such Security Agreement, together with such other powers as are
reasonably incidental thereto, including, without limitation, the authority to
sign such financing statements, continuation statements, and make such filings
with the U.S. Patent and Trademark Office as are necessary to perfect and
protect the security interests and liens of the Holders under the Security
Agreement. Notwithstanding any provision to the contrary, elsewhere in this
Agreement, the Collateral Agent shall not have any duties or responsibilities
except those expressly set forth herein or any fiduciary relationship with any
Holder, and no implied covenants, functions, responsibilities, duties,
obligations, or liabilities shall be read into this Agreement or the Security
Agreement or any document executed in connection herewith or shall otherwise
exist against the Collateral Agent.
(b) Neither the Collateral Agent nor any company with
which he is affiliated, nor any of the directors, officers, agents or employees
of such company shall be liable for any action taken or omitted to be taken by
him or them under or in connection with this Agreement or the Security Agreement
in the absence of his or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Collateral Agent (1)
may treat the payee of any Note as the holder thereof until the Collateral Agent
receives written notice of the assignment or transfer thereof signed by such
payee and in form satisfactory to the Collateral Agent; (2) may consult with
legal counsel (including counsel for the Spatialight), independent public
accountants and other experts selected by him and shall not be liable for any
action taken or omitted to be taken in good faith by him in accordance with the
advice of such counsel, accountants, or experts; (3) makes no warranty or
representations to any Holder and shall not be responsible to any Holder for any
statements, warranties, or representations made in or in connection with this
Agreement other than those statements, warranties or representations made by
himself as the holder of a Note; (4) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants, or
conditions of the Security Agreement on the part of Spatialight, or to inspect
the property (including the books and records) of Spatialight; (5) shall not be
responsible to any Holder for the due execution, legality, validity,
enforceability, genuineness, perfection, sufficiency, or value of the Security
Agreement or any other instrument or document furnished pursuant thereto;
<PAGE> 3
and (6) shall incur no liability under or in respect of this Agreement or the
Security Agreement by acting upon any notice, consent, certificate, or other
instrument or writing (which may be sent by telegram, telex, or facsimile
transmission) believed by him to be genuine and signed or sent by the proper
party or parties.
(c) The Holders agree to indemnify the Collateral
Agent (to the extent not reimbursed by Spatialight) ratably according to the
respective amounts of the Debt from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Collateral Agent in any way relating to
or arising out of this Agreement or the Security Agreement or any action taken
or omitted by the Collateral Agent under this Agreement or the Security
Agreement, provided that no Holder shall be liable for any portion of any of the
foregoing resulting from the Collateral Agent's gross negligence or willful
misconduct. Without limitation of the foregoing, each Holder agrees to reimburse
the Collateral Agent (to the extent not reimbursed by Spatialight) promptly upon
demand for its ratable share of any out-of-pocket expenses (including counsel
fees) incurred by the Collateral Agent in connection with the preparation,
administration, or enforcement of, or legal advice in respect of rights or
responsibilities under, this Agreement or the Security Agreement.
(d) The Collateral Agent may resign at any time by
giving at least sixty (60) days' prior written notice thereof to the Holders and
may be removed at any time with or without cause by a vote of the Holders
holding a majority of the amount of the Notes held by the Holders. Upon any such
resignation or removal, the Holders shall have the right to appoint a successor
Collateral Agent. If no successor Collateral Agent shall have been so appointed
by the Holders, and shall have accepted such appointment, within thirty (30)
days after the retiring Collateral Agent's giving of notice of resignation or
the Holders' removal of the retiring Collateral Agent, then the retiring
Collateral Agent may, on behalf of the Holders, appoint a successor Collateral
Agent. Upon the acceptance of any appointment as Collateral Agent hereunder by a
successor Collateral Agent, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Collateral Agent, and the retiring Collateral Agent shall be
discharged from his duties and obligations under this Agreement. After any
retiring Collateral Agent's resignation or removal hereunder as Collateral
Agent, the provisions of this document shall inure to the benefit as to any
actions taken or omitted to be taken by it while it was Collateral Agent under
this Agreement.
5. Incidental Expenses. The Holders shall collectively
contribute, on a pro rata basis according to their respective percentage
interest in the Debt, the aggregate amount of any costs, expenses and
disbursements required to be paid by the Holders' Representative in connection
with the consummation of the transactions contemplated by the Loan Agreement and
the performance of the Holders' Representative's duties hereunder. These
expenses may include, but are not limited to, accountant's and attorney's fees
and fees paid to the Bank.
6. Authority of Holders' Representative. Each of the Holders
does hereby irrevocably make, constitute, and appoint the Holders'
Representative as such Holder's true and lawful attorney in fact and agent, to
act for and on behalf of such Holder and in such Holder's name, (a) to execute
the Escrow Agreement and to take any action (or to determine to take no action)
with respect thereto as the Holders' Representative may deem appropriate as
effectively
<PAGE> 4
as such Holder could act for itself, himself or herself, and (b) to execute and
deliver all instruments and documents of every kind incident to the foregoing to
all intents and purposes and with the same effect as such Holder could do
personally, and each Holder hereby ratifies and confirms as its, his or her own
act, all that the Holders' Representative shall do or cause to be done pursuant
to the provisions of this Agreement.
7. Death or Incapacity of a Holder. The death or incapacity of
any Holder shall not terminate the authority and agency of the Holders'
Representative as to such deceased or incapacitated Holder.
8. Indemnification of Holders' Representative. The Holders
hereby agree to indemnify the Holders' Representative and to hold him harmless
against any loss, liability or expense incurred without bad faith on the part of
the Holders' Representative and arising out of or in connection with his duties
as Holders' Representative, including, without limitation, the costs and
expenses incurred by such Holders' Representative in defending against any claim
of liability in connection with this Agreement. The obligation of Holders to
indemnify Holders' Representative shall be apportioned among all of the Holders
on a pro rata basis in accordance with the amount of Debt held by each Holder.
9. Spatialight Board. Section 6.4 of the Loan Agreements
provides that the Holders may nominate one candidate at the next election of the
board of directors of Spatialight to be included in the slate of directors
proposed by management of Spatialight and to select a representative (the
"Representative") in the event the Holders do not have a representative for the
board of directors of Spatialight. The Holders hereby nominate Steven F. Tripp
to be included in the slate of directors proposed by management of Spatialight
at the next election of directors and agree that any future decisions regarding
nominees of the Holders, whether for a position as member of the board of
directors or for the position of Representative, shall be determined by the
preference of those Holders holding a majority of the Debt.
10. No Fiduciary Relationship. The Holders recognize and
covenant that nothing in this Agreement shall be construed as constituting the
appointment of Holders' Representative as trustee for any Holder. The Holders
further recognize and acknowledge that (a) Holders' Representative shall take
the action and exercise the powers granted in this Agreement in an
administrative and ministerial capacity only, (b) Holders' Representative shall
not have a fiduciary relationship with any Holder by reason of this Agreement
and (c) it is the intention of SFT to serve as a director of Spatialight
following the Closing, and he will, therefore, in all likelihood serve as a
director of Spatialight during the same period he also serves as Holders'
Representative pursuant to this Agreement.
11. Headings. All headings in this Agreement are inserted for
the convenience of the reader and shall not be construed to alter the meaning of
the textual portions of the Agreement.
12. Severability. In the event any provision or portion of
this Agreement is held to be illegal, invalid, or unenforceable, in whole or in
part, for any reason, under present or
<PAGE> 5
future law, such provision shall be severable and the remainder thereof shall
not be invalidated or rendered unenforceable or otherwise adversely affected.
13. Binding Effect on Successors, Assignees, Etc.
(a) Holders' Representative may not assign, delegate,
or otherwise transfer his rights or obligations under this Agreement without the
express written consent of Holders holding a majority of the Debt.
(b) This Agreement shall be binding upon and shall
inure to the benefit of each of the parties hereto who has executed a
counterpart of this Agreement, regardless of whether each of the other Holders
has executed a counterpart of this Agreement. In addition, this Agreement shall
be binding upon and shall inure to the benefit of the respective executors,
administrators, personal representatives, legal representatives, heirs,
successors and assigns of the undersigned Holders.
14. Term. The term of this Agreement shall terminate with
respect to each Holder on the later to occur of: (i) the Cessation Date with
respect to that Holder's Note or (ii) the conclusion of any claim made against
such Holder for indemnification.
15. Amendment. This Agreement may be amended in whole or in
part by a vote of the Holders, with each Holder voting its, his, or her interest
in the Debt, with the majority of such interests controlling.
16. Notices. All notices given hereunder to Steven F. Tripp in
his capacity as Holders' Representative or Collateral Agent shall be to the
following address:
Steven F. Tripp
2021 Brook Highland Ridge
Birmingham, Alabama 35242
or to such other address as Steven F. Tripp shall furnish to the Holders in
writing.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument with the same force and
effect as though all parties had executed the same document. Execution and
delivery by facsimile shall constitute good and valid execution and delivery
unless and until replaced or substituted by an original executed instrument.
<PAGE> 6
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed, all as of the date first above written.
HOLDERS:
[Signature lines of Filing Persons omitted]
HOLDERS' REPRESENTATIVE:
-------------------------------------------
Steven F. Tripp
