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EXHIBIT 4.3
EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made
and
entered into as of December 20, 2004, by
and among Interchange Corporation, a
Delaware corporation (the "COMPANY"), and
the investors signatory hereto (each a
"INVESTOR" and collectively, the
"INVESTORS").
This Agreement is made pursuant to the Securities Purchase
Agreement,
dated as of the date hereof among the
Company and the Investors (the "PURCHASE
AGREEMENT").
The Company and the Investors hereby agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined
herein
that are defined in the Purchase Agreement
will have the meanings given such
terms in the Purchase Agreement. As used in
this Agreement, the following terms
have the respective meanings set forth in
this Section 1:
"ADVICE" has the meaning set forth in Section 6(d).
"EFFECTIVE DATE" means, as to a Registration Statement, the
date on which such Registration Statement
is first declared effective by the
Commission.
"EFFECTIVENESS DATE" means (a) with respect to the initial
Registration Statement required to be filed
under Section 2(a), the earlier of:
(a)(i) the 120th day following the Closing
Date, and (ii) the fifth Trading Day
following the date on which the Company is
notified by the Commission that the
initial Registration Statement will not be
reviewed or is no longer subject to
further review and comments; (b) with
respect to any additional Registration
Statements that may be required pursuant to
Section 2(b), the earlier of (i) the
120th day following (x) if such
Registration Statement is required because the
Commission shall have notified the Company
in writing that certain Registrable
Securities were not eligible for inclusion
on a previously filed Registration
Statement, the date or time on which the
Commission shall indicate as being the
first date or time that such Registrable
Securities may then be included in a
Registration Statement, or (y) if such
Registration Statement is required for a
reason other than as described in (x)
above, the date on which the Company first
knows, or reasonably should have known,
that such additional Registration
Statement(s) is required, and (ii) the
fifth Trading Day following the date on
which the Company is notified by the
Commission that such additional
Registration Statement will not be reviewed
or is no longer subject to further
review and comments; and (c) with respect
to a Registration Statement required
to be filed under Section 2(c), the earlier
of: (c)(i) the 90th day following
the date on which the Company becomes
eligible to utilize Form S-3 to register
the resale of Common Stock, and (ii) the
fifth Trading Day following the date on
which the Company is notified by the
Commission that the initial Registration
Statement will not be reviewed or is no
longer subject to further review and
comments.
"EFFECTIVENESS PERIOD" has the meaning set forth in Section
2(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
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"FILING DATE" means (a) with respect to the initial
Registration Statement required to be filed
under Section 2(a), the 30th day
following the Closing Date; (b) with
respect to any additional Registration
Statements that may be required pursuant to
Section 2(b), the 30th day following
(x) if such Registration Statement is
required because the Commission shall have
notified the Company in writing that
certain Registrable Securities were not
eligible for inclusion on a previously
filed Registration Statement, the date or
time on which the Commission shall indicate
as being the first date or time that
such Registrable Securities may then be
included in a Registration Statement, or
(y) if such Registration Statement is
required for a reason other than as
described in (x) above, the date on which
the Company first knows, or reasonably
should have known, that such additional
Registration Statement(s) is required;
and (c) with respect to a Registration
Statement required to be filed under
Section 2(c), the 30th day following the
date on which the Company becomes
eligible to utilize Form S-3 to register
the resale of Common Stock.
"HOLDER" or "HOLDERS" means the holder or holders, as the case
may be, from time to time of Registrable
Securities.
"INDEMNIFIED PARTY" has the meaning set forth in Section 5(c).
"INDEMNIFYING PARTY" has the meaning set forth in Section
5(c).
"LOSSES" has the meaning set forth in Section 5(a).
"NEW YORK COURTS" means the state and federal courts sitting
in the City of New York, Borough of
Manhattan.
"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.
"REGISTRABLE SECURITIES" means: (i) the Shares, (ii) the
Warrant Shares, and (iii) any securities
issued or issuable upon any stock
split, dividend or other distribution,
recapitalization or similar event, or any
conversion price adjustment with respect to
any of the securities referenced in
(i) or (ii) above.
"REGISTRATION STATEMENT" means the initial registration
statement required to be filed in
accordance with Section 2(a) and any
additional registration statement(s)
required to be filed under Section 2(b) and
2(c), including (in each case) the
Prospectus, amendments and supplements to
such registration statements or Prospectus,
including pre- and post-effective
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amendments, all exhibits thereto, and all
material incorporated by reference or
deemed to be incorporated by reference
therein.
"RULE 144" means Rule 144 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.
"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.
"RULE 424" means Rule 424 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.
"SHARES" means the shares of Common Stock issued or issuable
to the Investors pursuant to the Purchase
Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"WARRANTS" means the Common Stock purchase warrants issued or
issuable to the Investors pursuant to the
Purchase Agreement.
"WARRANT SHARES" means the shares of Common Stock issued or
issuable upon exercise of the Warrants.
2. Registration.
(a) On or prior to each Filing Date, the Company shall prepare
and file with the Commission a Registration
Statement covering the resale of all
Registrable Securities not already covered
by an existing and effective
Registration Statement for an offering to
be made on a continuous basis pursuant
to Rule 415, on Form SB-2 (or on such other
form appropriate for such purpose).
Such Registration Statement shall contain
(except if otherwise required pursuant
to written comments received from the
Commission upon a review of such
Registration Statement) the "Plan of
Distribution" attached hereto as Annex A.
The Company shall cause such Registration
Statement to be declared effective
under the Securities Act as soon as
possible but, in any event, no later than
its Effectiveness Date, and shall use its
reasonable best efforts to keep the
Registration Statement continuously
effective under the Securities Act until the
date which is the earlier of (i) five years
after its Effective Date, (ii) such
time as all of the Registrable Securities
covered by such Registration Statement
have been publicly sold by the Holders, or
(iii) such time as all of the
Registrable Securities covered by such
Registration Statement may be sold by the
Holders pursuant to Rule 144(k) as
determined by the counsel to the Company
pursuant to a written opinion letter to
such effect, addressed and acceptable to
the Company's transfer agent and the
affected Holders (the "EFFECTIVENESS
PERIOD").
(b) If for any reason the Commission does not permit all of
the Registrable Securities to be included
in the Registration Statement filed
pursuant to Section 2(a), or for any other
reason any outstanding Registrable
Securities are not then covered by an
effective
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Registration Statement, then the Company
shall prepare and file by the Filing
Date for such Registration Statement, an
additional Registration Statement
covering the resale of all Registrable
Securities not already covered by an
existing and effective Registration
Statement for an offering to be made on a
continuous basis pursuant to Rule 415, on
Form SB-2 (or on such other form
appropriate for such purpose). Each such
Registration Statement shall contain
(except if otherwise required pursuant to
written comments received from the
Commission upon a review of such
Registration Statement) the "Plan of
Distribution" attached hereto as Annex A.
The Company shall cause each such
Registration Statement to be declared
effective under the Securities Act as soon
as possible but, in any event, by its
Effectiveness Date, and shall use its
reasonable best efforts to keep such
Registration Statement continuously
effective under the Securities Act during
the entire Effectiveness Period.
(c) Promptly following any date on which the Company becomes
eligible to use a registration statement on
Form S-3 to register the Registrable
Securities for resale, the Company shall
file a registration statement on Form
S-3 covering the Registrable Securities (or
a post-effective amendment on Form
S-3 to the then effective Registration
Statement) and shall cause such
Registration Statement to be declared
effective as soon as possible thereafter,
but in any event prior to the Effectiveness
Date therefor. Such Registration
Statement shall contain (except if
otherwise required pursuant to written
comments received from the Commission upon
a review of such Registration
Statement) the "Plan of Distribution"
attached hereto as Annex A. The Company
shall cause such Registration Statement to
be declared effective under the
Securities Act as soon as possible but, in
any event, by its Effectiveness Date,
and shall use its reasonable best efforts
to keep such Registration Statement
continuously effective under the Securities
Act during the entire Effectiveness
Period.
(d) If: (i) a Registration Statement is not filed on or prior
to its Filing Date, or (ii) a Registration
Statement is not declared effective
by the Commission on or prior to its
required Effectiveness Date, or (iii) after
its Effective Date, without regard for the
reason thereunder or efforts
therefore, such Registration Statement
ceases for any reason to be effective and
available to the Holders as to all
Registrable Securities to which it is
required to cover at any time prior to the
expiration of its Effectiveness
Period for more than an aggregate of 45
Trading Days (which need not be
consecutive) (any such failure or breach
being referred to as an "EVENT," and
for purposes of clauses (i) or (ii) the
date on which such Event occurs, or for
purposes of clause (iii) the date which
such 45 Trading Day-period is exceeded,
being referred to as "EVENT DATE"), then in
addition to any other rights the
Holders may have hereunder or under
applicable law: (x) on each such Event Date
the Company shall pay to each Holder an
amount in cash, as partial liquidated
damages and not as a penalty, equal to 1.5%
of the aggregate Investment Amount
paid by such Holder for Shares pursuant to
the Purchase Agreement; and (y) on
each monthly anniversary of each such Event
Date (if the applicable Event shall
not have been cured by such date) until the
applicable Event is cured, the
Company shall pay to each Holder an amount
in cash, as partial liquidated
damages and not as a penalty, equal to 1.5%
of the aggregate Investment Amount
paid by such Holder for Securities pursuant
to the Purchase Agreement. The
parties agree that the Company will not be
liable for liquidated damages under
this Section in respect of the Warrants. If
the Company fails to pay any partial
liquidated damages pursuant to this Section
in full within seven days after the
date payable, the Company will pay interest
thereon at a rate of 10% per annum
(or such lesser maximum amount that is
permitted to be paid by applicable law)
to the Holder, accruing daily from the date
such partial
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liquidated damages are due until such
amounts, plus all such interest thereon,
are paid in full. The partial liquidated
damages pursuant to the terms hereof
shall apply on a daily pro-rata basis for
any portion of a month prior to the
cure of an Event, except in the case of the
first Event Date. Notwithstanding
the other provisions of this Section 2, in
no event shall the Company be liable
for partial liquidated damages under this
Section 2(d) to any Holder in excess
of 10.5% of the Investment Amount paid by
such Holder for Securities pursuant to
the Purchase Agreement.
(e) Each Holder agrees to furnish to the Company a completed
Questionnaire in the form attached to this
Agreement as Annex B (a "SELLING
HOLDER QUESTIONNAIRE"). The Company shall
not be required to include the
Registrable Securities of a Holder in a
Registration Statement and shall not be
required to pay any liquidated or other
damages under Section 2(d) to any Holder
who fails to furnish to the Company a fully
completed Selling Holder
Questionnaire at least two Trading Days
prior to the Filing Date (subject to the
requirements set forth in Section
3(a)).
3. Registration Procedures.
In connection with the Company's registration obligations
hereunder, the Company shall:
(a) Not less than four Trading Days prior to the filing of a
Registration Statement or any related
Prospectus or any amendment or supplement
thereto, the Company shall furnish to each
Holder copies of the "Selling
Stockholders" section of such document, the
"Plan of Distribution" and any risk
factor contained in such document that
addresses specifically this transaction
or the Selling Stockholders, as proposed to
be filed which documents will be
subject to the review of such Holder. The
Company shall not file a Registration
Statement, any Prospectus or any amendments
or supplements thereto in which the
"Selling Stockholder" section thereof
differs from the disclosure received from
a Holder in its Selling Holder
Questionnaire (as amended or supplemented).
(b) (i) Prepare and file with the Commission such amendments,
including post-effective amendments, to
each Registration Statement and the
Prospectus used in connection therewith as
may be necessary to keep such
Registration Statement continuously
effective as to the applicable Registrable
Securities for its Effectiveness Period and
prepare and file with the Commission
such additional Registration Statements in
order to register for resale under
the Securities Act all of the Registrable
Securities; (ii) cause the related
Prospectus to be amended or supplemented by
any required Prospectus supplement,
and as so supplemented or amended to be
filed pursuant to Rule 424; (iii)
respond as promptly as reasonably possible
to any comments received from the
Commission with respect to each
Registration Statement or any amendment thereto
and, as promptly as reasonably possible
provide the Holders true and complete
copies of all correspondence from and to
the Commission relating to such
Registration Statement that would not
result in the disclosure to the Holders of
material and non-public information
concerning the Company; and (iv) comply in
all material respects with the provisions
of the Securities Act and the Exchange
Act with respect to the Registration
Statements and the disposition of all
Registrable Securities covered by each
Registration Statement.
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(c) Notify the Holders as promptly as reasonably possible
(and, in the case of (i)(A) below, not less
than three Trading Days prior to
such filing) and (if requested by any such
Person) confirm such notice in
writing no later than one Trading Day
following the day (i)(A) when a Prospectus
or any Prospectus supplement or
post-effective amendment to a Registration
Statement is proposed to be filed; (B) when
the Commission notifies the Company
whether there will be a "review" of such
Registration Statement and whenever the
Commission comments in writing on such
Registration Statement (the Company shall
provide true and complete copies thereof
and all written responses thereto to
each of the Holders that pertain to the
Holders as a Selling Stockholder or to
the Plan of Distribution, but not
information which the Company believes would
constitute material and non-public
information); and (C) with respect to each
Registration Statement or any
post-effective amendment, when the same has become
effective; (ii) of any request by the
Commission or any other Federal or state
governmental authority for amendments or
supplements to a Registration Statement
or Prospectus or for additional
information; (iii) of the issuance by the
Commission of any stop order suspending the
effectiveness of a Registration
Statement covering any or all of the
Registrable Securities or the initiation of
any Proceedings for that purpose; (iv) of
the receipt by the Company of any
notification with respect to the suspension
of the qualification or exemption
from qualification of any of the
Registrable Securities for sale in any
jurisdiction, or the initiation or
threatening of any Proceeding for such
purpose; and (v) of the occurrence of any
event or passage of time that makes
the financial statements included in a
Registration Statement ineligible for
inclusion therein or any statement made in
such Registration Statement or
Prospectus or any document incorporated or
deemed to be incorporated therein by
reference untrue in any material respect or
that requires any revisions to such
Registration Statement, Prospectus or other
documents so that, in the case of
such Registration Statement or the
Prospectus, as the case may be, it will not
contain any untrue statement of a material
fact or omit to state any material
fact required to be stated therein or
necessary to make the statements therein,
in light of the circumstances under which
they were made, not misleading.
(d) Use its reasonable best efforts to avoid the issuance of,
or, if issued, obtain the withdrawal of (i)
any order suspending the
effectiveness of a Registration Statement,
or (ii) any suspension of the
qualification (or exemption from
qualification) of any of the Registrable
Securities for sale in any jurisdiction, at
the earliest practicable moment.
(e) Furnish to each Holder, without charge, at least one
conformed copy of each Registration
Statement and each amendment thereto and all
exhibits to the extent requested by such
Person (including those previously
furnished) promptly after the filing of
such documents with the Commission.
(f) Promptly deliver to each Holder, without charge, as many
copies of each Prospectus or Prospectuses
(including each form of prospectus)
and each amendment or supplement thereto as
such Persons may reasonably request.
The Company hereby consents to the use of
such Prospectus and each amendment or
supplement thereto by each of the selling
Holders in connection with the
offering and sale of the Registrable
Securities covered by such Prospectus and
any amendment or supplement thereto.
(g) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the
selling Holders in connection with the
registration or qualification (or
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exemption from such registration or
qualification) of such Registrable
Securities for offer and sale under the
securities or Blue Sky laws of all
jurisdictions within the United States, to
keep each such registration or
qualification (or exemption therefrom)
effective during the Effectiveness Period
and to do any and all other acts or things
necessary or advisable to enable the
disposition in such jurisdictions of the
Registrable Securities covered by the
Registration Statements.
(h) Cooperate with the Holders to facilitate the timely
preparation and delivery of certificates
representing Registrable Securities to
be delivered to a transferee pursuant to
the Registration Statements, which
certificates shall be free, to the extent
permitted by the Purchase Agreement,
of all restrictive legends, and to enable
such Registrable Securities to be in
such denominations and registered in such
names as any such Holders may request.
(i) Upon the occurrence of any event contemplated by Section
3(c)(v), as promptly as reasonably
possible, prepare a supplement or amendment,
including a post-effective amendment, to
the affected Registration Statements or
a supplement to the related Prospectus or
any document incorporated or deemed to
be incorporated therein by reference, and
file any other required document so
that, as thereafter delivered, no
Registration Statement nor any Prospectus will
contain 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, in
light of the circumstances under which they
were made, not misleading.
4. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this
Agreement by the Company 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 fees
(including, without limitation, fees and
expenses (A) with respect to filings
required to be made with any Trading Market
on which the Common Stock is then
listed for trading, and (B) in compliance
with applicable state securities or
Blue Sky laws), (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 holders of a
majority of the Registrable Securities
included in the
