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EXHIBIT 99(b)
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of April 28, 2000
among
VIEWCAST.COM, INC.,
and
HSBC BANK USA,
as Trustee
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of April 28, 2000, by and between VIEWCAST.COM, INC., a Delaware
corporation (the "Company"), and HSBC Bank USA (the "Trustee"), in its capacity
as trustee for the beneficial holders of the Company's 7% Senior Convertible
Debentures Due 2004 (the "Debentures") under and pursuant to that certain Trust
Indenture dated as of April 28, 2000 (the "Trust Indenture", which expression
shall wherever the context so admits include any indenture supplemental thereto)
made between the Company and the Trustee. All capitalised terms used herein but
not defined herein shall have the meanings ascribed to such terms in the Trust
Indenture.
RECITALS
WHEREAS, the Debentures will be convertible into shares of common stock
of the Company, par value $.0001 (the "Common Stock"), subject to adjustment in
accordance with the Trust Indenture; and
WHEREAS, the Company has agreed to provide to the holders of the Common
Stock issuable upon conversion of the Debentures (the "Conversion Stock"), the
registration rights set forth in the Debentures, the Trust Indenture and this
Agreement; and
WHEREAS, the Debentures and the Conversion Stock are referred to herein
as the "Restricted Securities" and the beneficial holders of the Restricted
Securities are referred to herein individually as a "Holder" or collectively as
the "Holders"; and
WHEREAS, this Agreement is made pursuant to the Trust Indenture, and
the execution and delivery of this Agreement is a condition to the closing under
the Placing Agreement dated March 28, 2000, between the Company, RP&C
International, Inc. and RP&C International Limited, as amended by Amendment
Agreement dated as of April 28, 2000.
NOW, THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. Shelf Registration.
(a) On or before August 28, 2000, the Company shall, at
its cost, prepare, file and use all commercially reasonable
efforts to cause to be declared effective with the Securities
and Exchange Commission (the "Commission") a registration
statement on the appropriate form (the "Shelf Registration
Statement") covering the offer and sale of the Conversion
Stock by the Holders thereof from time to time (hereinafter,
the "Shelf Registration").
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(b) Until such time as (i) all Debentures have been
converted or are no longer outstanding and all Conversion
Shares have been resold by the Holders thereof pursuant to the
Shelf Registration Statement or (ii) the Debentures and
Conversion Shares are no longer "restricted securities" within
the meaning of Rule 144(a)(3) under the Securities Act of
1933, as amended (the "Securities Act"), the Company shall use
all commercially reasonable efforts to keep the Shelf
Registration Statement continuously effective, supplemented
and amended as required by the Securities Act, in order to
permit the prospectus forming a part thereof to be usable by
the Holders from the date the Shelf Registration Statement is
declared effective by the Commission (such period being called
the "Shelf Registration Period"). The Company shall be deemed
not to have used all commercially reasonable efforts to keep
the Shelf Registration Statement effective during the
requisite period if it voluntarily takes any action that would
result in a Holder not being able to offer and sell such
Restricted Securities during that period, unless (i) such
action is required by applicable law or (ii) upon the
occurrence of any event that requires the Company to make
changes in any registration statement or the prospectus in
order that such registration statement or prospectus does not
contain an untrue statement of a material fact and does not
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they
were made) not misleading, such action is taken by the Company
in good faith and for valid business reasons and the Company
thereafter promptly complies with the requirements of Section
2(h) below if the Company has determined in good faith that
there are no material legal or commercial impediments in so
doing.
(c) Notwithstanding any other provision of this Agreement
to the contrary, the Company shall cause (i) the Shelf
Registration Statement and the related prospectus and any
amendment or supplement thereto to comply in all material
respects with the applicable requirements of the Securities
Act and the rules and regulations of the Commission
thereunder, (ii) the Shelf Registration Statement and any
amendment thereto not to contain, when it becomes effective,
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading and (iii) any
prospectus forming a part of the Shelf Registration Statement,
and any amendment or supplement to such prospectus, not to
contain, as of the date of such prospectus or amendment or
supplement, 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.
2. Registration Procedures. In connection with any registration
under the Securities Act contemplated by Section 1 hereof, the
following provisions shall apply during the Shelf Registration Period:
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(a) The Company shall:
(i) prepare and file with the Commission a
registration statement with respect to such
securities, and use all commercially reasonable
efforts to cause such registration statement to
become and remain effective for the period specified
in Section 1; and
(ii) furnish, without charge, to the Holders (if
so requested by them) a copy of each such
registration statement and each amendment thereto and
each amendment or supplement, if any, to the
prospectus included therein and, in the event that
the Holders are selling pursuant to such registration
statement, shall use all commercially reasonable
efforts to reflect in each such document, when so
filed with the Commission, such comments as such
Holders, may reasonably propose.
(b) The Company shall give written notice, in accordance
with the notice provisions of the Trust Indenture, to the
Holders:
(i) when each registration statement or any
amendment thereto has been filed with the Commission
and when each registration statement or any
post-effective amendment thereto has become
effective;
(ii) of any request by the Commission for
amendments or supplements to any registration
statement or the prospectus included therein or for
additional information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of any
registration statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company or its legal
counsel of any notification with respect to the
suspension of the qualification of the Restricted
Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires
the Company to make changes in any registration
statement or the prospectus in order that such
registration statement or prospectus does not contain
an untrue statement of a material fact and does not
omit to state a material fact required to be stated
therein or necessary to make the statements therein
(in the case of the prospectus, in light of the
circumstances in which they were made) not
misleading.
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(c) The Company shall use all commercially reasonable
efforts to obtain the withdrawal as soon as practicable, of
any order suspending the effectiveness of any registration
statement.
(d) The Company shall furnish to each Holder of
Restricted Securities included within the coverage of any
registration statement, if the Holder so requests in writing,
without charge, one copy of the registration statement and any
post-effective amendment thereto, including financial
statements and schedules and, if the Holder so requests in
writing, all exhibits thereto (other than those, if any,
incorporated by reference therein).
(e) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Restricted Securities
included within the coverage of any registration statement,
without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the registration
statement and any amendment or supplement thereto as such
person may reasonably request.
(f) Prior to any public offering, if any, of Restricted
Securities pursuant to any registration statement, the Company
shall register or qualify such Restricted Securities for offer
and sale under the securities or "blue sky" laws of such
states of the United States as any such Holder reasonably
requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Restricted Securities covered by the
registration statement, provided that the Company shall not be
required to (i) qualify generally to do business in any
jurisdiction where it is not then otherwise required to be so
qualified, (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction
where it is not then so subject or (iii) make any changes to
its certificate of incorporation or by-laws or any agreement
between it and its stockholders.
(g) The Company shall cooperate with the Holders of the
Restricted Securities to facilitate the timely preparation and
delivery of certificates representing the Restricted
Securities to be sold pursuant to any registration statement
free of any restrictive legends and in such denominations and
registered in such names as the Holders may reasonably request
in writing at least two Business Days prior to the closing of
any sale of the registrable securities.
(h) Upon the occurrence of any event contemplated by
paragraphs (ii) through (v) of Section 2(b) above during the
Shelf Registration Period, the Company shall use all
commercially reasonable efforts to prepare and file as
promptly as practicable a post-effective amendment to the
registration statement or an amendment or supplement to the
related prospectus and any other required document so that, as
thereafter delivered to Holders, the prospectus will not
contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to
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make the statements therein, in light of the circumstances
under which they were made, not misleading.
(i) The Company will comply with all rules and
regulations of the Commission to the extent and so long as
they are applicable to any registration of securities pursuant
to the Securities Act and will make generally available to its
security holders (or otherwise provide in accordance with
Section 11(a) of the Securities Act) an earnings statement
satisfying the provisions of Section 11(a) of the Securities
Act, no later than forty-five (45) days after the end of a
12-month period (ninety (90) days, if such period is a fiscal
year) beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of each
registration statement, which statement shall cover such
12-month period.
(j) The Company will use all commercially reasonable
efforts to cause the Common Stock to be listed on the NASDAQ
National Market or any Alternative Exchange as more fully
provided for in the Trust Indenture.
3. Registration Expenses. The Company shall bear all fees and
expenses (including filing fees) incurred in connection with the
performance of its obligations under Sections 1 and 2 hereof, whether
or not a registration statement is filed or becomes effective, and
shall reimburse the Holders for the reasonable fees and expenses of
Designated Counsel to the Holders.
4. Indemnification and Contribution.
(a) In the event of a registration of any of the
Restricted Securities under the Securities Act pursuant to
Section 1, the Company will indemnify and hold harmless each
Holder of such Restricted Securities thereunder, and each
other person, if any, who controls such selling Holder within
the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which such
selling Holder or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any
registration statement under which such Restricted Securities
were registered under the Securities Act pursuant to Section
1, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out
of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
will reimburse each such Holder and each such controlling
person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however,
that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises
out of or is based upon
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an untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement or
prospectus or any such amendment or supplement in reliance
upon and in conformity with written information furnished to
the Company by any Holder expressly for use therein.
(b) Promptly after receipt by an indemnified party
hereunder of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party hereunder, notify the
indemnifying party in writing thereof, but the omission so to
notify the indemnifying party shall not relieve it from any
liability which it may have to such indemnified party other
than under this Section 4 and shall only relieve it from any
liability which it may have to such indemnified party under
this Section 4 if and to the extent the indemnifying party is
prejudiced by such omission. In case any such action shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to
the extent it shall wish, to assume and undertake the defense
thereof with counsel satisfactory to such indemnified party,
and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake
the defense thereof, the indemnifying party shall not be
liable to such indemnified party under this Section 4 for any
legal expenses subsequently incurred by such indemnified party
in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so
selected; provided, however, that, if the defendants in any
such action include both the indemnified party and the
indemnifying party and the indemnified party shall have
reasonably concluded that there may be reasonable defenses
available to it which are different from or additional to
those available to the indemnifying party or if the interests
of the indemnified party reasonably may be deemed to conflict
with the interests of the indemnifying party, the indemnified
party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the
defense of such action, with the reasonable expenses and fees
of such separate counsel and other reasonable expenses related
to such participation to be reimbursed by the indemnifying
party as incurred.
5. Successor. If the Company consolidates or merges into or with,
another person or sells, assigns, conveys, transfers, leases or
otherwise disposes of all or a majority of its assets to any person or
group, or any person or group consolidates with, or merges into or
with, the Company, each holder of Restricted Securities shall, as a
condition to the relevant transaction involving such person, group or
successor in business, be granted by such person, group or successor in
business, equivalent rights to the rights granted hereunder.
6. Miscellaneous.
(a) Rule 144. So long as any Restricted Security is
outstanding, the Company shall use all commercially reasonable
efforts to file the reports required to be filed by
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it under the Securities Act and the Exchange Act in a timely
manner and, if at any time the Company is not required to file
such reports, it will, upon the request of any Holder of
Restricted Securities, make publicly available other
information so long as necessary to permit sales of its
securities pursuant to Rule 144. The Company covenants that,
if in the event the Company is no longer subject to Sections
13 or 15(d) of the Exchange Act, it will take such further
action as any Holder of Restricted Securities may reasonably
request, all to the extent required from time to time to
enable such Holder to sell Restricted Securities without
registration under the Securities Act within the limitation of
the exemptions provided by Rule 144. The Company will provide
a copy of this Agreement to prospective purchasers of
Restricted Securities identified to the Company by any holder
upon request.
(b) Entire Agreement. This Agreement and the other
writings referred to herein, delivered pursuant hereto or
executed in connection with the offer and sale of the
Debentures and subsequent registration by the Company of
Restricted Securities (including the Trust Indenture) contain
the entire understanding of the parties with respect to its
subject matter.
(c) Amendments and Waivers. The Trustee may agree,
without the consent of the Holders, to a modification of the
terms of the provisions of this Agreement (i) to evidence the
succession of another person to the Company and the assumption
by any such person of the obligations of the Company contained
herein; (ii) to add to the obligations of the Company for the
benefit of the Holders or to surrender any right or power
herein conferred upon the Company; (iii) to evidence and
provide for the acceptance and appointment of a successor
Trustee pursuant to the Trust Indenture, or (iv) to cure any
ambiguity or defect in or to correct or supplement any
provision herein which may be defective or inconsistent with
any other provision herein. Except as provided in the
preceding sentence, the provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents
to departures from the provisions here of may not be given,
otherwise than in accordance with the Section 6.12 of the
Trust Indenture.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made and shall
only be deemed to have been duly given when delivered in
accordance with the procedures set forth in the Trust
Indenture.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and
transferees of the Holders, including, without limitation and
without the need for an express assignment, subsequent
Holders, provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of
Restricted Securities in violation of the terms of the United
States securities laws. If any transferee of any Holder shall
acquire Restricted Securities, in any manner, whether by
operation of law or otherwise, such Restricted
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Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Restricted
Securities, such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and
provisions of this Agreement and such person shall be entitled
to receive the benefits hereof.
(f) Third Party Beneficiary. Each Holder shall be a third
party beneficiary of the agreements made hereunder between the
Company, on the one hand, and the Trustee, on the other hand,
and shall have the right to enforce such agreements directly
to the extent it deems such enforcement necessary or advisable
to protect its rights or the rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed
to be an original and all of which taken together shall
constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO
CONFLICTS OF LAWS.
(j) Severability. In the event that any one or more of
the provisions contained herein, or the application there of
in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired
thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
VIEWCAST.COM, INC.
By: /s/ LAURIE L. LATHAM
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Name: Laurie L. Latham
Title: Chief Financial Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
HSBC BANK USA,
as Trustee
By: /s/ JAMES M. FOLEY
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Name: James M. Foley
Title: Assistant Vice President
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