Exhibit 10.1
SERIES B-1 PREFERRED EXCHANGE AGREEMENT
THIS SERIES B-1 PREFERRED EXCHANGE AGREEMENT (this “Agreement”) is dated as of August 9, 2013 (the “Closing Date”), between Glowpoint, Inc., a Delaware corporation (the “Company”), and GP Investment Holdings, LLC, a Delaware limited liability company (the “Holder”), which holds shares of the Company’s Perpetual Series B-1 Preferred Stock, par value $0.0001 per share (the “Series B-1 Preferred Stock”).
Preliminary Statement
WHEREAS, the Holder holds 95 shares of the Series B-1 Preferred Stock (the “Preferred Stock”);
WHEREAS, the Company and the Holder desire to exchange the Preferred Stock for shares of common stock of the Company, par value $0.0001 per share (the “Common Stock”), at an agreed upon value.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby agreed and acknowledged, the parties hereto hereby agree as follows:
1.
Securities Exchange.
(a)
Upon the following terms and subject to the conditions contained herein, the Holder agrees to deliver to the Company the Preferred Stock in exchange for 6,333,333 shares of the Common Stock (the “Securities”). In consideration of and in express reliance upon the representations, warranties, covenants, terms and conditions of this Agreement, the Preferred Stock shall be exchanged on a one for 66,666.66 basis into validly issued, fully paid and non-assessable shares of the Common Stock.
(b)
The execution and delivery of this Agreement by the parties hereto and the closing under this Agreement (the “Closing”) took place simultaneously at the Company’s offices.
(c)
At the Closing, the Holder shall deliver to the Company for cancellation the Preferred Stock, and the Company shall issue to the Holder certificates representing the Securities.
2.
Representations, Warranties and Covenants of the Holder.
The Holder hereby makes the following representations and warranties to the Company, and covenants for the benefit of the Company.
(a)
The Holder is a limited liability company duly organized, validly existing and in good standing under the laws of Delaware.
(b)
This Agreement has been duly authorized, validly executed and delivered by the Holder and is a valid and binding agreement and obligation of the Holder enforceable against the Holder in accordance with its terms, subject to limitations on enforcement by general principles of equity and by bankruptcy or other laws affecting the enforcement of creditors’ rights generally, and the Holder has full limited liability company power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder.
(c)
The Holder understands that the Securities are being offered and sold to it in reliance on specific provisions of federal and state securities laws and that the Company is relying upon the truth and accuracy of the representations, warranties, agreements, acknowledgments and understandings of the Holder set forth herein for purposes of qualifying for exemptions from registration under the Securities Act of 1933, as amended (the “Securities Act”) and applicable state securities laws.
(d)
The execution, delivery and performance of this Agreement by the Holder and the consummation by the Holder of the transactions contemplated hereby do not and will not (i) violate any provision of the Holder’s charter or organizational documents, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Holder is a party or by which the Holder’s properties or assets are bound, or (iii) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Holder or by which any property or asset of the Holder are bound or affected, except, in each case, for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would not, individually or in the aggregate, materially and adversely affect the Holder’s ability to perform its obligations under this Agreement.
(e)
The Holder is an “accredited investor” as defined under Rule 501 of Regulation D promulgated under the Securities Act, with sufficient knowledge and experience in financial matters as to be capable of evaluating the risks and merits of the transaction contemplated hereby.
(f)
The Holder is and will be acquiring the Securities for the Holder’s own account, for investment purposes, and not with a view to any resale or distribution in whole or in part, in violation of the Securities Act or any applicable securities laws;
provided
,
however
, that by making the representations herein, the Holder does not agree to hold the Securities for any minimum or other specific term and reserves the right to dispose of the Securities at any time in accordance with federal and state securities laws applicable to such disposition.
(g)
The Holder understands that the Securities purchased hereunder are “restricted securities,” as that term is defined in the Securities Act and the rules thereunder, have not been registered under the Securities Act, and that none of the Securities can be sold or transferred unless they are first registered under the Securities Act and such state and other securities laws as may be applicable or an exemption from registration under the Securities Act is available (and then the Securities may be sold or transferred only in compliance with such exemption and all applicable state and other securities laws).
(h)
The Holder has not employed any broker or finder or incurred any liability for any brokerage or investment banking fees, commissions, finders’ structuring fees, financial advisory fees or other similar fees in connection with any of the transactions contemplated by this Agreement.
(i)
The Holder acknowledges that the Securities were not offered to the Holder by means of any form of general or public solicitation or general advertising, or publicly disseminated advertisements or sales literature, including (i) any advertisement, article, notice or other communication published in any newspaper, magazine, or similar media, or broadcast over television or radio, or (ii) any seminar or meeting to which the Holder was invited by any of the foregoing means of communications.
(j)
The Holder owns and holds, beneficially and of record, the entire right, title, and interest in and to the Preferred Stock free and clear of all rights and Encumbrances (as defined below) other than restrictions under the Securities Act and other applicable federal and state securities laws, the certificate of incorporation of the Company and the Certificate of Designations, Preferences and Rights of Series B-1 Preferred Stock of Glowpoint, Inc. (the “Certificate of Designations”). The Holder has full power and authority to transfer and dispose of the Preferred Stock free and clear of any right or Encumbrance other than restrictions under the Securities Act and other applicable federal and state securities laws. Other than the transactions contemplated by this Agreement and as set forth in the Certificate of Designations, there is no outstanding vote, plan, pending proposal, or other right of any person to acquire all or any of the Preferred Stock. “Encumbrances” shall mean any security or other property interest or right, claim, lien, pledge, option, charge, security interest, contingent or conditional sale, or other title claim or retention agreement, interest or other right or claim of third parties, whether perfected or not perfected, voluntarily incurred or arising by operation of law, and including any agreement (other than this Agreement) to grant or submit to any of the foregoing in the future.
(k)
No person or entity, other than the Company, has been authorized to give any information or to make any representation on behalf of the Company in connection with the offering of Securities, and if given or made, such information or representations have not been relied upon by the Holder as having been made or authorized by the Company. The only representations and warranties made by the Company in connection with the offering of Securities are those contained in this Agreement, and the only information made available by the Company in connection with the offering of Securities is contained in this Agreement.
3.
Representations, Warranties and Covenants of the Company.
The Company represents and warrants to the Holder, and covenants for the benefit of the Holder, as follows:
(a)
The Company has been duly incorporated and is validly existing and in good standing under the laws of the state of Delaware, with full corporate power and authority to own, lease and operate its properties and to conduct its business as currently conducted.
(b)
The Securities have been duly authorized by all necessary corporate action and, when paid for and issued in accordance with the terms hereof, the Securities shall be validly issued and outstanding, fully paid and nonassessable, free and clear of right and Encumbrances.
(c)
This Agreement has been duly authorized, validly executed and delivered on behalf of the Company and is a valid and binding agreement and obligation of the Company enforceable against the Company in accordance with its terms, subject to limitations on enforcement by general principles of equity and by bankruptcy or other laws affecting the enforcement of creditors’ rights generally, and the Company has full corporate power and authority to execute and deliver this Agreement and the other agreements and documents contemplated hereby and to perform its obligations hereunder and thereunder.
(d)
The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby do not and will not (i) violate any provision of the Company certificate of incorporation or by-laws, (ii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, mortgage, deed of trust, indenture, note, bond, license, lease agreement, instrument or obligation to which the Company is a party or by which the Company’s properties or assets are bound, (iii) result in a violation of any federal, state, local or foreign statute, rule, regulation, order, judgment or decree (including federal and state securities laws and regulations) applicable to the Company or by which any property or asset of the Company is bound or affected, or (iv) result in the creation or imposition of any material lien, charge or encumbrance upon any material property or assets of the Company or any of its subsidiaries pursuant to the terms of any agreement or instrument to which any of them is a party or by which any of them may be bound or to which any of their property or any of them is subject, except, in each case, for such conflicts, defaults, terminations, amendments, acceleration, cancellations and violations as would not, individually or in the aggregate, materially and adversely affect the Company’s ability to perform its obligations under this Agreement.
(e)
The delivery and issuance of the Securities in accordance with the terms of and in reliance on the accuracy of the Holder’s representations and warranties set forth in this Agreement will be exempt from the registration requirements of the Securities Act.
(f)
Except for any filings under federal or state securities laws required in connection with the transactions contemplated by this Agreement, including the application for additional listing of the Securities with the NYSE MKT, no consent, approval or authorization of or designation, declaration or filing with any governmental authority on the part of the Company is required in connection with the valid execution and delivery of this Agreement or the offer, sale or issuance of the Securities or the consummation of the transactions contemplated by this Agreement.
(g)
The Company has complied and will comply with all applicable federal and state securities laws in connection with the offer, issuance and delivery of the Securities hereunder. Neither the Company nor anyone acting on its behalf, directly or indirectly, has or will sell, offer to sell or solicit offers to buy any of the Securities, or similar securities to, or solicit offers with respect thereto from, or enter into any preliminary conversations or negotiations relating thereto with, any person, or has taken or will take any action so as to bring the issuance and sale of any of the Securities under the registration provisions of the Securities Act and applicable state securities laws. Neither the Company nor any of its affiliates, nor any person acting on its or their behalf, has engaged in any form of general solicitation or general advertising (within the meaning of Regulation D under the Securities Act) in connection with the offer or sale of any of the Securities.
(h)
The Company represents that it has not paid, and shall not pay, any commissions or other remuneration, directly or indirectly, to the Holder or to any third party for the solicitation of the exchange of the Preferred Stock pursuant to this Agreement.
(i)
The Company covenants and agrees that promptly following the Closing Date, all Preferred Stock that is exchanged for Securities pursuant to the terms set forth herein will be cancelled and retired by the Company.
(j)
There is no action, suit, claim, investigation or proceeding pending or, to the knowledge of the Company, threatened against the Company which questions the validity of this Agreement or the transactions contemplated hereby or any action taken or to be taken pursuant thereto. There is no action, suit, claim, investigation or proceeding pending or, to the knowledge of the Company, threatened, against or involving the Company or any subsidiary, or any of their respective properties or assets which, if adversely determined, is reasonably likely to result in a Material Adverse Effect.
(k)
The authorized capital stock of the Company and the shares thereof issued and outstanding as of the date hereof are set forth on
Schedule 3(k)
attached hereto. All of the outstanding shares of the Company’s Common Stock and any other outstanding security of the Company have been duly and validly authorized, and are fully paid and non-assessable. The Series B-1 Preferred Stock and the Company’s Series A-2 Convertible Preferred Stock are the only preferred stock currently issued and outstanding. Except as set forth in this Agreement or on
Schedule 4(k)
attached hereto, as of the Closing Date, no shares of Common Stock are entitled to preemptive rights and there are no registration rights or outstanding options, warrants, scrip, rights to subscribe to, call or commitments of any character whatsoever relating to, or securities or rights convertible into, any shares of capital stock of the Company. The Company is not a party to any agreement restricting the voting or transfer of any shares of the capital stock of the Company. The Company has furnished or made available to the Holder true and correct copies of the Company’s certificate of incorporation as in effect on the date hereof, and the Company’s bylaws as in effect on the date hereof.
4.
Legend.
Each certificate representing the Securities shall be stamped or otherwise imprinted with a legend substantially in the following form (in addition to any legend required by applicable state securities or “blue sky” laws):
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE (THE “
SECURITIES
”) HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “
SECURITIES ACT
”) OR ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT AND UNDER APPLICABLE STATE SECURITIES LAWS OR GLOWPOINT, INC. SHALL HAVE RECEIVED AN OPINION OF COUNSEL THAT REGISTRATION OF SUCH SECURITIES UNDER THE SECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED.”
The Company agrees to reissue certificates representing any of the Securities, without the legend set forth above if at such time, prior to making any transfer of any such Securities, the Holder thereof shall give written notice to the Company describing the manner and terms of such transfer and removal as the Company may reasonably request, and provided the conditions set forth in this paragraph shall have been met. Such proposed transfer will not be effected until: (a) the Company has either (i) received an opinion of counsel that the registration of the Securities is not required in connection with such proposed transfer; or (ii) filed a registration statement under the Securities Act covering such proposed disposition has been filed by the Company with the Securities and Exchange Commission, which registration statement has become effective under the Securities Act; and (b) the Company has received an opinion of counsel that either: (i) the registration or qualification under the securities or “blue sky” laws of any state is not required in connection with such proposed disposition, or (ii) compliance with applicable state securities or “blue sky” laws has been effected. The Company will use reasonable efforts to respond to any such notice from the Holder within five (5) business days. In the case of any proposed transfer under this Section 4, the Company will use reasonable efforts to comply with any such applicable state securities or “blue sky” laws, but shall in no event be required, in connection therewith, to qualify to do business in any state where it is not then qualified or to take any action that would subject it to tax or to the general service of process in any state where it is not then subject. The restrictions on transfer contained in this Section 4 shall be in addition to, and not by way of limitation of, any other restrictions on transfer contained in any other section of this Agreement.
5.
Fees and Expenses.
Each party hereto shall pay the fees and expenses of its advisors, counsel, accountants and other experts, if any, and all other expenses, incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement.
6.
Waiver of Dividends.
The Holder hereby irrevocably waives any and all claims, demands, suits, actions, causes of action and rights whatsoever at law or in equity, now existing or arising relating to any accrued and unpaid dividends in respect of the Preferred Stock pursuant to the Certificate of Designations or any other agreement between the parties. The Holder hereby acknowledges and agrees that it shall not commence or prosecute in any way, or cause to be commenced or prosecuted, any action in any court relating to such accrued and unpaid dividends.
7.
Consent.
Pursuant to Section 5 of the Certificate of Designations, as holder of 95% of the issued and outstanding shares of Series B-1 Preferred Stock, the Holder hereby consents to the exchange of the Preferred Stock for the Securities pursuant to this Agreement.
8.
Indemnification.
(a)
The Company hereby agrees to indemnify and hold harmless the Holder and its affiliates, officers, directors, shareholders, members, managers, employees, agents and attorneys, and the successors to the foregoing (and their respective affiliates, officers, directors, shareholders, members, managers, employees, agents and attorneys) from and against any and all claims, allegations, complaints, petitions, demands, suits, actions, proceedings, assessments, adjustments, judgments, liabilities, damages, fines, and losses of every kind and description, and all reasonable costs, fees, outlays, expenses, expenditures and disbursements of every nature (including, without limitation, costs of investigation, travel expenses, value of time expended by personnel and fees and expenses of attorneys, accountants, consultants, expert witnesses and other witnesses) incurred in respect of claims between the parties hereto (collectively “Claims”) incurred or suffered as a result of or arising out of any breach of any representation, warranty, covenant or agreement made by the Company in this Agreement.
(b)
The Holder hereby agrees to indemnify and hold harmless the Company and its affiliates, officers, directors, shareholders, members, managers, employees, agents and attorneys, and the successors to the foregoing (and their respective affiliates, officers, directors, shareholders, members, managers, employees, agents and attorneys) from and against any and all Claims incurred or suffered as a result of or arising out of any breach of any representation, warranty, covenant or agreement made by the Holder in this Agreement.
9.
Governing Law; Consent to Jurisdiction.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without giving effect conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. Each of the parties consents to the exclusive jurisdiction of the federal courts whose districts encompass any part of the County of New York located in the City of New York in connection with any dispute arising under this Agreement and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens, to the bringing of any such proceeding in such jurisdictions. Each party waives its right to a trial by jury. Each party to this Agreement irrevocably consents to the service of process in any such proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party at its address set forth herein. Nothing herein shall affect the right of any party to serve process in any other manner permitted by law.
10.
Notices.
All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, express overnight courier, registered first class mail, or telecopier (provided that any notice sent by telecopier shall be confirmed by other means pursuant to this Section 10), initially to the address set forth below, and thereafter at such other address, notice of which is given in accordance with the provisions of this Section.
(a)
if to the Company:
Glowpoint, Inc.
1776 Lincoln Ave.
Suite 1300
Denver, CO 80203
Attention: President
Tel. No.: (303) 640-3810
Fax No.: (866) 703-2089
and
Glowpoint, Inc.
430 Mountain Avenue
Murray Hill, New Jersey 07974
Attention: General Counsel
Tel. No.: (908) 376-2172
Fax No.: (908) 464-2482
(b)
if to the Holder:
GP Investment Holdings, LLC
c/o Main Street Capital Corporation
1300 Post Oak Boulevard
Suite 800
Houston, Texas 77056
Attention: Robert M. Shuford
Tel. No.: (713) 350-6000
Fax No.: (713) 350-6042
All such notices and communications shall be deemed to have been duly given: when delivered by hand, if personally delivered; when receipt is acknowledged, if telecopied; or when actually received or refused if sent by other means.
11.
Confidentiality.
The Holder acknowledges and agrees that the existence of this Agreement and the information contained herein and in the Exhibits hereto (collectively, “Confidential Information”) is of a confidential nature and shall not, without the prior written consent of the Company, be disclosed by the Holder to any person or entity, other than the Holder’s personal financial and legal advisors for the sole purpose of evaluating an investment in the Company, and that it shall not, without the prior written consent of the Company, directly or indirectly, make any statements, public announcements or release to trade publications or the press with respect to the subject matter of this Agreement. Notwithstanding the foregoing, the Holder may use or disclose Confidential Information to the extent the Holder is required by law to disclose such Confidential Information, provided, however, that prior to any such required disclosure, Holder shall give the Company reasonable advance notice of any such disclosure and shall cooperate with the Company in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. The Holder further acknowledges and agrees that the information contained herein and in the other documents relating to this transaction may be regarded as material non-public information under United States federal securities laws, and that United States federal securities laws prohibit any person who has received material non-public information relating to the Company from purchasing or selling securities of the Company, or from communicating such information to any person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell securities of the Company. Accordingly, until such time as any such non-public information has been adequately disseminated to the public, the Holder shall not purchase or sell any securities of the Company, or communicate such information to any other person. The Company shall also file with the Securities and Exchange Commission a Current Report on Form 8-K (the “Form 8-K”) describing the material terms of the transactions contemplated hereby as soon as practicable following the Closing Date, but in no event more than four (4) Trading Days following the Closing Date, which Form 8-K shall be subject to prior review and comment by the Holder. For the purposes of this Agreement, “Trading Day” means any day during which The New York Stock Exchange shall be open for business. Notwithstanding anything set forth in this Agreement, the parties hereto understand and acknowledge that the Holder and one or more of its members and affiliates (including, but not limited to, Main Street Capital Corporation) will have certain regulatory requirements in order to maintain compliance with the rules and regulations of the Securities and Exchange Commission and the Small Business Administration (the “SBA”) and as such, the Company approves and consents to the disclosure of this transaction for such purposes and nothing in this Agreement shall prohibit the Holder or its members or affiliates from disclosing this transaction to (i) the Securities Exchange Commission, (ii) the Holder’s partners and investors, (iii) the SBA, (iv) SBA auditors or (v) the Holder’s auditors, attorneys or accountants.
12.
Entire Agreement.
This Agreement constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous oral or written proposals or agreements relating thereto all of which are merged herein. This Agreement may not be amended or any provision hereof waived in whole or in part, except by a written amendment signed by all of the parties hereto.
13.
Counterparts.
This Agreement may be executed by facsimile signature and in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement was duly executed on the date first written above.
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GLOWPOINT, INC.
By:
/s/ Peter Holst
Name: Peter Holst
Title: Chief Executive Officer
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GP Investment Holdings, LLC
By:
/s/ Robert M. Shuford
Name: Robert M. Shuford
Title: Chief Executive Officer
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Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this “Agreement”) is made and entered into as of August 9, 2013, by and among Glowpoint, Inc., a Delaware corporation (the “Company”), and GP Investment Holdings, LLC, a Delaware limited liability company (the “Purchaser”).
This Agreement is made in connection with that certain Series B-1 Preferred Exchange Agreement dated as of the date hereof among the Company and the Purchaser (the “Purchase Agreement”).
NOW, THEREFORE, in consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Purchaser agree as follows:
1.
Definitions.
Capitalized terms used and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given such terms in the Purchase Agreement. As used in this Agreement, the following terms shall have the following meanings:
“
Affiliate
” means, with respect to any person, any other person which directly or indirectly controls, is controlled by, or is under common control with, such person.
“
Business Day
” means a day, other than a Saturday or Sunday, on which banks in New York City are open for the general transaction of business.
“
Commission
” means the Securities and Exchange Commission.
“
Common Stock
” means the common stock of the Company, par value $0.0001 per share, and any securities into which such common stock may hereinafter be reclassified.
“
Effective Date
” means the date that the applicable Registration Statement filed is first declared effective by the Commission.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“
Losses
” shall have the meaning set forth in Section 5(a).
“
Person
” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“
Proceeding
” means an action, claim, suit, investigation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced or threatened.
“
Prospectus
” means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.
“
Register
,” “
registered
” and “
registration
” refer to a registration made by preparing and filing a Registration Statement or similar document in compliance with the Securities Act or pursuant to Rule 415, and the declaration or ordering of effectiveness of such Registration Statement or document.
“
Registrable Securities
” means, with respect to the Registration Statement required to be filed pursuant to the terms hereof, all of (i) the Securities, (ii) any securities issued or issuable upon any stock split, dividend or other distribution, recapitalization or similar event with respect to the foregoing;
“
Registration Statements
” means any one or more registration statements of the Company filed under the Securities Act that covers the resale of any of the Registrable Securities pursuant to the provisions of this Agreement, amendments and supplements to such Registration Statements, including post-effective amendments, all exhibits and all material incorporated by reference or deemed to be incorporated by reference in such Registration Statements.
“
Rule 415
” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same effect as such Rule.
“
Securities
” means the 6,333,333 shares of the Common Stock held by the Purchaser.
“
Securities Act
” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
2.
Registration.
(a)
The Company shall, as soon as practical, but not later than ninety (90) days from the date hereof, use its best efforts to effect a Registration Statement with the Commission to the end that the Securities may be sold under the Securities Act as promptly as practical thereafter. The Company shall use its best efforts to keep any Registration Statement filed pursuant to this Section 2 current and effective until such date as the Purchaser shall have sold all of its Securities or shall have advised the Company that it no longer desires to sell such Securities pursuant to such Registration Statement.
(b)
In addition, the Company shall, at its sole expense, use its best efforts to: (i) prepare and file with the Commission such amendments and supplements to such Registration Statement and the Prospectus used in connection with such Registration Statement as may be necessary to comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement; (ii) furnish such number of Prospectuses and other documents incident thereto, including any amendment of or supplement to the Prospectus, as the Purchaser from time to time may reasonably request; (iii) notify the Purchaser at any time when a Prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes an untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or incomplete in a light of the circumstances then existing; (iv) cause all Securities registered pursuant thereunder to be listed on each securities exchange on which similar securities issued by the Company are then listed; (v) provide a transfer agent and registrar for all Securities registered pursuant thereunder and a CUSIP number for all such Securities, in each case not later than the Effective Date of such Registration Statement; and (vi) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission, and make generally available to its security investors, as soon as reasonably practicable, an earnings statement satisfying the provisions of Section 11(a) of the Securities Act and covering the period of at least twelve (12) months, but not more than eighteen (18) months, beginning with the first month after the Effective Date of such Registration Statement.
(c)
The Company shall use its best efforts to qualify the registered Securities for sale in such states as it is otherwise qualifying its securities for sale, or in such states as are reasonably requested by the Purchaser. However, in no event is the Company required to submit to the jurisdiction of any state other than for the limited consent of service of process relating to the offering or subject itself to taxation in any such jurisdiction.
3.
Registration Expenses.
All fees and expenses incident to the Company’s performance of or compliance with its obligations under this Agreement (excluding any underwriting discounts and selling commissions and all legal fees and expenses of legal counsel for the Purchaser) shall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees and expenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing, (ii) printing expenses (including, without limitation, expenses of printing certificates for Registrable Securities and of printing Prospectuses if the printing of Prospectuses is reasonably requested by the Purchaser), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel for the Company.
4.
Lock-Up.
The Purchaser agrees that it shall not, without the prior written consent of the Company, sell or otherwise transfer or dispose of any shares of Common Stock held by the Purchaser for up to 365 days following the date hereof. Notwithstanding the foregoing, the Purchaser may transfer shares of Common Stock (i) as part of an underwritten registration, (ii) acquired by the Purchaser after the date hereof in open market transactions or (iii) to one or more of the Purchaser’s members or any of its or its members’ Affiliates; provided, however, the Purchaser shall notify the Company prior to any such transfer and agrees to coordinate with the Company to effect any such transfer.
5.
Indemnification.
(a)
The Company shall indemnify and hold harmless the Purchaser from and against any and all losses, claims, damages and liabilities (including fees and expenses of counsel, which counsel may, if the Purchaser requests, be separate from counsel for the Company) (collectively, the “Losses”) caused by any untrue statement or alleged untrue statement of material fact contained in the Registration Statement or any post-effective amendment thereto or any Registration Statement under the Securities Act or any Prospectus included therein required to be filed or furnished or any application or other filing under any state securities law caused by 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 to which the Purchaser may become subject under the Securities Act or other federal or state statutory law or regulation, at common law or otherwise, except insofar as such Losses, are caused by any such untrue statement or alleged untrue statement or omission or alleged omission based upon information furnished to the Company in writing by the Purchaser expressly for use in the Registration Statement or Prospectus.
(b)
If the indemnification provided for in Section 5(a) from Company is unavailable to an indemnified party hereunder in respect of any Losses, then the Company, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by the Company as a result of Losses in such proportion as is appropriate to reflect the relative fault of the Company and indemnified parties in connection with the actions which resulted in such Losses, as well as any other relevant equitable considerations. The relative fault of the Company and indemnified parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, the Company or indemnified parties, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of Losses shall be deemed to include any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or Proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 5(b) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in this paragraph. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
6.
Miscellaneous.
(a)
Remedies
. In the event of a breach by the Company or by the Purchaser of any of their obligations under this Agreement, the Purchaser or the Company, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, including recovery of damages, will be entitled to specific performance of its rights under this Agreement. The Company and the Purchaser agree that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any of the provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect of such breach, it shall waive the defense that a remedy at law would be adequate.
(b)
Entire Agreement
. This Agreement is intended by the parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the parties hereto in respect of the subject matter contained herein. This Agreement supersedes all prior agreements and understandings between the parties with respect to such subject matter.
(c)
Compliance
. The Purchaser covenants and agrees that it will comply with the Prospectus delivery requirements of the Securities Act as applicable to it (unless an exemption therefrom is available) in connection with sales of Registrable Securities pursuant to a Registration Statement and shall sell the Registrable Securities only in accordance with a method of distribution described in such Registration Statement.
(d)
Amendments and Waivers
. The provisions of this Agreement may not be amended, modified or supplemented unless the same shall be in writing and signed by the Company and the Purchaser.
(e)
Notices
. Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be in writing. The address for such notices and communications shall be as follows:
If to the Company:
Glowpoint, Inc.
1776 Lincoln Ave.
Suite 1300
Denver, CO 80203
Attention: President
Tel. No.: (303) 640-3810
Fax No.: (866) 703-2089
and
Glowpoint, Inc.
430 Mountain Avenue
Murray Hill, New Jersey 07974
Attention: General Counsel
Tel. No.: (908) 376-2172
Fax No.: (908) 464-2482
|
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If to the Purchaser:
|
GP Investment Holdings, LLC
|
c/o Main Street Capital Corporation
1300 Post Oak Boulevard
Suite 800
Houston, Texas 77056
Attention: Robert M. Shuford
Tel. No.: (713) 350-6000
Fax No.: (713) 350-6042;
or such other address as may be designated in writing hereafter, in the same manner, by such Person.
(f)
Successors and Assigns
. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.
(g)
Execution and Counterparts
. This Agreement may be executed in any number of 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 and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature were the original thereof.
(h)
Governing Law
. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York without giving effect conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. Each of the parties consents to the exclusive jurisdiction of the federal courts whose districts encompass any part of the County of New York located in the City of New York in connection with any dispute arising under this Agreement and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens, to the bringing of any such Proceeding in such jurisdictions. Each party waives its right to a trial by jury. Each party to this Agreement irrevocably consents to the service of process in any such Proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to such party at its address set forth herein. Nothing herein shall affect the right of any party to serve process in any other manner permitted by law.
(i)
Cumulative Remedies
. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.
(j)
Severability
. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable.
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.
Glowpoint, Inc.
By:
/s/ Peter Holst
Name: Peter Holst
Title: Chief Executive Officer
GP Investment Holdings, LLC
By:
/s/ Brian L. Pessin
Name: Brian L. Pessin
Title: President