-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NFxBIfDICG1gQNL7FhtscphG5B9JuLV5h+q1cY1DB7ZS1rm5EZyMS0IjX6ikoC7x fyFUpp1PDXFTg3675LKKUg== 0000950123-03-012626.txt : 20031113 0000950123-03-012626.hdr.sgml : 20031113 20031113150605 ACCESSION NUMBER: 0000950123-03-012626 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20031112 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20031113 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VIEWPOINT CORP CENTRAL INDEX KEY: 0000919794 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-PREPACKAGED SOFTWARE [7372] IRS NUMBER: 954102687 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 000-27168 FILM NUMBER: 03997662 BUSINESS ADDRESS: STREET 1: 498 SEVENTH AVENUE STREET 2: SUITE 1810 CITY: NEW YORK STATE: NY ZIP: 10018 BUSINESS PHONE: 212-201-0800 MAIL ADDRESS: STREET 1: 498 SEVENTH AVENUE STREET 2: SUITE 1810 CITY: NEW YORK STATE: NY ZIP: 10018 FORMER COMPANY: FORMER CONFORMED NAME: VIEWPOINT CORP/NY/ DATE OF NAME CHANGE: 20001201 FORMER COMPANY: FORMER CONFORMED NAME: METACREATIONS CORP DATE OF NAME CHANGE: 19970529 FORMER COMPANY: FORMER CONFORMED NAME: HSC SOFTWARE CORP DATE OF NAME CHANGE: 19951019 8-K 1 y91814e8vk.txt FORM 8-K SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of earliest event reported) November 12, 2003 VIEWPOINT CORPORATION (Exact name of registrant as specified in its charter) Delaware 0-27168 95-4102687 - -------- ------- ---------- (state or other juris- (Commission (I.R.S. Employer diction of incorporation) File Number) (Identification No.) 498 Seventh Avenue, Suite 1810, New York, NY 10018 - -------------------------------------------- ----- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (212) 201-0800 N/A ------------------------------------------------------------- (Former name or former address, if changed since last report) ITEM 5. OTHER EVENTS AND REGULATION FD DISCLOSURE Viewpoint Corporation closed a private placement of common stock with Federal Partners, L.P. on November 12, 2003 under which Viewpoint issued 3,125,000 shares of common stock at $0.80 per share (for an aggregate purchase price of $2,500,000) and agreed to register the issued shares under the Securities Act of 1933. For a complete description of the transaction, reference is made to the Stock Purchase Agreement and the Registration Rights Agreement attached hereto as Exhibits 10.1 and 10.2. The Clark Estates, Inc. provides management and administrative services to Federal Partners and has the sole power to vote or to direct the vote and to dispose of or direct the disposition of all shares held by Federal Partners. Stephen M. Duff is a director of Viewpoint and is the Chief Investment Officer of The Clark Estates, Inc. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits The following exhibits are filed herewith: 10.1 Stock Purchase Agreement, dated as of November 12, 2003, by and between Viewpoint Corporation and Federal Partners, L.P. 10.2 Registration Rights Agreement, dated as of November 12, 2003, by and between Viewpoint Corporation and Federal Partners, L.P. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. VIEWPOINT CORPORATION /s/ William H. Mitchell ------------------------- William H. Mitchell Chief Financial Officer Dated: November 13, 2003 EX-10.1 3 y91814exv10w1.txt STOCK PURCHASE AGREEMENT EXHIBIT 10.1 STOCK PURCHASE AGREEMENT STOCK PURCHASE AGREEMENT, dated as of November 12, 2003, between Viewpoint Corporation, a Delaware corporation (the "COMPANY"), and Federal Partners, L.P., a Delaware limited partnership (the "PURCHASER"). PREAMBLE The Company has duly authorized the issuance of 3,125,000 shares of the Company's common stock, par value $.001 per share (the "COMMON STOCK"), pursuant to the provisions of this Stock Purchase Agreement. Each party hereto agrees as follows for the benefit of the other party: ARTICLE ONE DEFINITIONS SECTION 1.01. DEFINITIONS. "BOARD OF DIRECTORS" means, as to any Person, the board of directors of such Person or any duly authorized committee thereof. "BOARD RESOLUTION" means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification. "BUSINESS DAY" means any day other than a Saturday, Sunday or any other day on which banking institutions in The City of New York are required or authorized by law or other governmental action to be closed. "CAPITAL STOCK" means (1) with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents, however designated, of corporate stock, including each class of common stock and preferred stock of such Person and (2) with respect to any Person that is not a corporation, any and all partnership or other equity interests of such Person. "CLOSING" has the meaning set forth in Section 2.02. "COMMON STOCK" has the meaning set forth in the Preamble. "COMMISSION" means the Securities and Exchange Commission, or any successor agency thereto with respect to the regulation or registration of securities. "COMPANY" means the party named as such in the Preamble until a successor replaces it pursuant to this Stock Purchase Agreement. "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto. "GAAP" is defined to mean generally accepted accounting principles in the United States of America as in effect from time to time, including, without limitation, those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession. "LIEN" means any lien, mortgage, deed of trust, pledge, security interest, charge or encumbrance of any kind (including any conditional sale or other title retention agreement, any lease in the nature thereof and any agreement to give any security interest). "OPINION OF COUNSEL" means a written opinion from legal counsel which counsel may be counsel to or an employee of the Company. "PERSON" means an individual, partnership, corporation, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof. "REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement, dated as of November 12, 2003, by and between the Company and the Purchaser, as amended from time to time. "SECURITIES ACT" means the Securities Act of 1933, as amended, or any successor statute or statutes thereto. "STOCK PURCHASE AGREEMENT" means this Stock Purchase Agreement, dated as of November 12, 2003, by and between the Company and the Purchaser, as amended from time to time. "SUBSIDIARY," with respect to any Person, means (i) any corporation of which the outstanding Capital Stock having at least a majority of the votes entitled to be cast in the election of directors under ordinary circumstances shall at the time be owned, directly or indirectly, by such Person, or (ii) any other Person of which at least a majority of the voting interest under ordinary circumstances is at the time, directly or indirectly, owned by such Person. "WHOLLY OWNED SUBSIDIARY" of any Person means any Subsidiary of such Person of which all the outstanding voting securities (other than directors' qualifying shares) are owned by such Person or any Wholly Owned Subsidiary of such Person. SECTION 1.02. RULES OF CONSTRUCTION. Unless the context otherwise requires: (1) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; 2 (2) "or" is not exclusive; (3) words in the singular include the plural, and words in the plural include the singular; (4) provisions apply to successive events and transactions; and (5) "herein," "hereof" and other words of similar import refer to this Stock Purchase Agreement as a whole and not to any particular Article, Section or other subdivision. ARTICLE TWO THE COMMON STOCK SECTION 2.01. PURCHASE AND SALE OF THE COMMON STOCK. Subject to the terms and conditions of this Stock Purchase Agreement and in reliance on the representations, warranties and covenants of the parties contained herein, the Company shall issue and deliver 3,125,000 shares of Common Stock to the Purchaser, and the Purchaser shall purchase such Common Stock from the Company for the aggregate purchase price of $2,500,000, at the Closing described in Section 2.02. SECTION 2.02. CLOSING. The closing of the transactions contemplated by Section 2.01 (the "CLOSING") shall take place at 3:00 p.m. on the date hereof at the offices of Patterson, Belknap, Webb & Tyler LLP or at such other place as the Company and Purchaser shall mutually agree. At the Closing, the Company shall deliver to the Purchaser certificates representing the Common Stock to be purchased by the Purchaser at the Closing duly registered in the name of the Purchaser. Delivery of such certificates to the Purchaser shall be made against receipt by the Company from the Purchaser of the aggregate purchase price set forth in Section 2.01 by wire transfer of immediately available funds to an account designated by the Company in writing for such purpose. ARTICLE THREE REPRESENTATIONS AND WARRANTIES SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. In order to induce the Purchaser to enter into this Stock Purchase Agreement and purchase the Common Stock, the Company represents and warrants to the Purchaser as follows: (a) Organization, Good Standing and Corporate Power. The Company is a corporation duly organized, validly existing and in good standing under the laws of the 3 State of Delaware, with all requisite corporate power and authority to own its properties and to conduct its business as presently conducted. The Company is qualified to do business and is in good standing (or has active status) in each jurisdiction in which the failure to be so qualified could have a Material Adverse Effect (as hereinafter defined). The Company has all requisite corporate power and authority to enter into this Stock Purchase Agreement and to perform its obligations hereunder, including, without limitation, the issuance and sale of the Common Stock. (b) Due Authorization; Enforceability; No Conflicts. The Company has taken all corporate and stockholder action necessary to authorize the execution, delivery and performance by it of this Stock Purchase Agreement. Assuming the due execution and delivery of this Stock Purchase Agreement by the Purchaser, this Stock Purchase Agreement constitutes a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to the enforcement of creditors' rights generally, the availability of equitable remedies and to general equity principles. The execution, delivery and performance by the Company of this Stock Purchase Agreement and compliance by the Company with the terms hereof will not violate, conflict with or cause an event of default under the Company's Certificate of Incorporation or the Company's Bylaws, or any resolutions of the Company's Board of Directors or stockholders or any agreement, instrument, judgment, order, law, rule or regulation applicable to the Company or by which the Company is bound or to which any of the Company's properties are subject, except where such violation, conflict or event of default would not result in a material adverse effect on the Company's business, financial condition, results of operations or properties (a "MATERIAL ADVERSE EFFECT"). The Common Stock, upon issuance in accordance with the terms of this Stock Purchase Agreement, are and will continue upon issuance to be duly authorized, validly issued, fully-paid and nonassessable and free of any Liens, claims or encumbrances and rights of first refusal. (c) Capitalization. The authorized Capital Stock of the Company consists of (i) 5,000,000 shares of preferred stock, par value .001 per share, of which no shares are issued and outstanding, and (ii) 75,000,000 shares of Common Stock, of which 45,998,007 shares are issued and outstanding. Except as set forth on SCHEDULE 3.01(c) annexed hereto, there are no outstanding subscriptions, rights, options, warrants, conversion rights, agreements or other claims for the purchase or acquisition from the Company of any shares of its Capital Stock or obligating the Company to issue, repurchase, register or otherwise acquire, any shares of its Capital Stock or any securities convertible into, exercisable or exchangeable for, or otherwise entitling the holder to acquire, any shares of Capital Stock of the Company. (d) Reports and Financial Statements. The Company has previously furnished the Purchaser with true and complete copies, as amended or supplemented, of the following documents, to the extent not available on the EDGAR system (i) Annual Report on Form 10-K for the year ended December 31, 2002, as filed with the Commission, (ii) proxy statements relating to all meetings of its shareholders (whether 4 annual or special) since June 1, 2003 and (iii) all other reports or registration statements filed by the Company with the SEC since December 31, 2002 (such reports, registration statements and other filings, together with any amendments or supplements thereto, are collectively referred to as the "COMPANY COMMISSION FILINGS"). The Company Commission Filings constituted all of the documents required to be filed by the Company with the Commission since December 31, 2002. As of their respective dates, such Company's Commission Filings (as amended or supplemented) complied in all material respects with the requirements of the Securities Act and the Exchange Act and the rules and regulations of the Commission promulgated thereunder, and did not contain any 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. The audited consolidated financial statements and any unaudited interim financial statements of the Company included in such Company's Commission Filings comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the Commission with respect thereto, and have been prepared in accordance with GAAP (except as may be indicated therein or in the notes thereto and, in the case of the quarterly financial statements, as permitted by Form 10-Q under the Exchange Act) and fairly present in all material respects the financial position of the Company at the dates thereof and the results of its operations and its cash flows for the periods then ended. (e) Absence of Certain Changes or Events. Except as publicly disclosed or otherwise disclosed in writing or orally (provided that any oral disclosure hereunder must be made to Steve Duff) prior to the date of this Stock Purchase Agreement or as otherwise contemplated by this Stock Purchase Agreement, since, September 30, 2003, there has not been any material adverse change or material adverse development in the financial condition, results of operations, or the business or properties of the Company. (f) Information in the Registration Statement. None of the information relating to the Company, its officers or directors, supplied by the Company for inclusion or incorporation by reference in the registration statement (the "REGISTRATION STATEMENT") to be filed with the Commission by the Company pursuant to the Registration Rights Agreement to be entered into between the Company and the Purchaser or any amendments or supplements thereto, will, at the time it becomes effective under the Securities Act and at the effective date, contain any untrue statement of material fact or omit to state any 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. If at any time prior to the effective date any event with respect to the Company, its officers or directors should occur which is required to be described in an amendment, or a supplement to, the Registration Statement, such event shall be so described and such description in such amendment or supplement of such information will not contain any statement which, at the time and in light of circumstances under which it is made, is false or misleading with respect to any material fact or omits to state any material fact required to be stated therein or in the Registration Statement or necessary to make the statements therein or in the Registration Statement not false or misleading. 5 (g) Compliance With Laws. The conduct of the business of the Company complies in all material respects with all statutes, laws, regulations, ordinances, rules, judgments, orders or decrees applicable thereto. Except as set forth on SCHEDULE 3.01(g) annexed hereto, the Company has not received notice of any alleged material violation of any statute, law, regulation, ordinance, rule, judgment, order or decree from any governmental authority applicable to the Company or any of its assets or properties which has not been satisfactorily disposed of. (h) Consents. Except as set forth on SCHEDULE 3.01(h) annexed hereto, no consent or waiver of, order or approval by, or filing with any governmental authority or other third party is required in connection with the Company's execution, delivery and performance of this Stock Purchase Agreement. (i) Litigation Proceedings. Except as set forth on SCHEDULE 3.01(i) annexed hereto, there is no action, suit, notice of violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company or any of its properties before or by any court, governmental or administrative agency or regulatory authority (federal, state, county, local or foreign) which (i) adversely affects or challenges the legality, validity or enforceability of any of this Stock Purchase Agreement and (ii) could reasonably be expected to, individually or in the aggregate, have a Material Adverse Effect. (j) No Default or Violation. Except as set forth on SCHEDULE 3.01(j) annexed hereto, the Company (i) is not in default under or in violation of any indenture, loan or other credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound, (ii) is not in violation of any order of any court, arbitrator or governmental body applicable to it, (iii) is not in violation of any statute, rule or regulation of any governmental authority to which it is subject or (iv) is not in default under or in violation of its Certificate of Incorporation, Bylaws or other organizational documents, respectively, except in each case for defaults and violations which individually or in the aggregate would not reasonably be expected to have a Material Adverse Effect. The business of the Company is not being conducted, and shall not be conducted in violation of any law, ordinance, rule or regulation of any governmental entity, except where such violations have not resulted or would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. The Company is not in breach of any agreement where such breach, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect. (k) Private Offering. Neither the Company nor any person acting on its behalf has taken or will take any action which might subject the offering, issuance or sale of the Common Stock to the Purchaser hereunder to the registration requirements of the Securities Act. The offer, sale and issuance of the Common Stock to the Purchaser will not be integrated with any other offer, sale and issuance of the Company's securities (past, current, or future) under the Securities Act or any regulations of any exchange or automated quotation system on which any of the securities of the Company are listed or designated or for purposes of any stockholder approval provision applicable to the 6 Company or its securities. Subject to the accuracy and completeness of the representations and warranties of the Purchaser contained in Section 3.02 hereof, the offer, sale and issuance by the Company to the Purchaser of the Common Stock hereunder is exempt from the registration requirements of the Securities Act. (l) Investment Company. The Company is not, and is not controlled by or under common control with an affiliate of an "investment company" within the meaning of the Investment Company Act of 1940, as amended. (m) Solicitation Materials. The Company has not (i) distributed any offering materials in connection with the offering and sale of the Common Stock to the Purchaser hereunder or (ii) solicited any offer to buy or sell the Common Stock hereunder by means of any form of general solicitation or advertising. (n) Listing and Maintenance Requirements Compliance. Except as set forth on SCHEDULE 3.01(n) annexed hereto, the Company has not in the two years preceding the date hereof received written notice from any stock exchange or market on which the Common Stock is or has been listed (or on which it has been quoted) to the effect that the Company is not in compliance with the listing or maintenance requirements of such exchange or market. (o) Registration Rights; Rights of Participation. Except as set forth on SCHEDULE 3.01(o) annexed hereto, the Company has not granted or agreed to grant to any person any rights (including "piggy-back" registration rights) to have any securities of the Company registered with the Commission or any other governmental authority which has not been satisfied, and no person, including, but not limited to, current or former stockholders of the Company, underwriters, brokers or agents, has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by this Stock Purchase Agreement. SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. In order to induce the Company to enter into this Stock Purchase Agreement and issue the Common Stock, the Purchaser represents and warrants to the Company as follows: (a) Organization, Good Standing and Corporate Power. The Purchaser is a limited partnership duly formed, validly existing and in good standing under the laws of the State of its organization, with all requisite corporate power and authority to own its properties, conduct its business, enter into this Stock Purchase Agreement and perform its obligations hereunder. (b) Due Authorization; Enforceability; No Conflicts. The Purchaser has taken all limited partnership action necessary to authorize the execution, delivery and performance by it of this Stock Purchase Agreement. Assuming the due execution and delivery of this Stock Purchase Agreement by the Company, this Stock Purchase Agreement constitutes a valid and binding obligation of the Purchaser, enforceable 7 against the Purchaser in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to the enforcement of creditors' rights generally, the availability of equitable remedies and general equity principles. The execution, delivery and performance by the Purchaser of this Stock Purchase Agreement and compliance by the Purchaser with the terms hereof will not violate, conflict with or cause an event of default under the Purchaser's organizational documents or any other agreement, instrument, judgment, order, law, rule or regulation by which the Purchaser is bound or to which any properties of the Purchaser are subject. (c) Accredited Investor. The Purchaser is an "accredited investor" as that term is defined in Rule 501(a) under the Securities Act. (d) Investment. The Purchaser is acquiring the Common Stock for investment for its own account and not with a present view to, or for resale in connection with, any distribution thereof. The Purchaser understands that the Common Stock has not been registered under the Securities Act or applicable state securities laws by reason of certain exemptions from the registration provisions thereof that depend upon, among other things, the truth and accuracy of the Purchaser's representations and warranties herein; provided, however, that by making the representations herein, the Purchaser does not agree to hold any of the Common Stock for any minimum or other specific term and reserves the right to dispose of the Common Stock at any time in accordance with or pursuant to a registration statement or an exemption under the Securities Act. (e) Restricted Transferability. The Purchaser acknowledges that the Common Stock are being offered and sold hereunder in a private placement that is exempt from the registration requirements of the Securities Act and that certificates for the Common Stock will bear the legend set forth in Section 3.02(f) below. (f) Legends. The Purchaser understands that the certificates representing the Common Stock, except as set forth below, shall bear any legend as required by the "blue sky" laws of any state and a restrictive legend in substantially the following form (and a stop-transfer order may be placed against transfer of such stock certificates): THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND APPLICABLE STATE SECURITIES LAWS, OR (B) AN OPINION OF COUNSEL ADDRESSED TO THE COMPANY, IN A GENERALLY ACCEPTABLE FORM, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT 8 SECURED BY THE SECURITIES. (g) The legend set forth above shall be removed and the Company shall issue a certificate without such legend to the holder of the Common Stock upon which it is stamped, if, unless otherwise required by state securities laws, (i) such Common Stock are registered for sale under the Securities Act, (ii) in connection with a sale, assignment or other transfer, such holder provides the Company with an opinion of counsel, in a generally acceptable form, to the effect that such sale, assignment or transfer of the Common Stock may be made without registration under the Securities Act, or (iii) such holder provides the Company with reasonable assurance that the Common Stock can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the Securities Act (or a successor rule thereto) (collectively, "RULE 144"). (h) The Purchaser understands that except as provided in the Registration Rights Agreement: (i) the shares of Common Stock have not been and are not being registered under the Securities Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, or (B) the Purchaser shall have delivered to the Company an opinion of counsel, in a generally acceptable form, to the effect that such Common Stock to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, (ii) any sale of the Common Stock made in reliance on Rule 144 may be made in accordance with the terms of Rule 144 and further, if Rule 144 is not applicable, any resale of the Common Stock under circumstances in which the seller or Person through whom the sale is made may be deemed to be an underwriter (as that term is defined in the Securities Act) may require compliance with some other exemption under the Securities Act or the rules and regulations of the Commission thereunder; and (iii) neither the Company nor any other Person is under any obligation to register the Common Stock under the Securities Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. ARTICLE FOUR COVENANTS SECTION 4.01. PAYMENT OF TAXES AND OTHER CLAIMS. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (a) all material taxes, assessments and governmental charges levied or imposed upon it or any of its Subsidiaries or upon the income, profits or property of it or any of its Subsidiaries and (b) all lawful claims for labor, materials and supplies which, in each case, if unpaid, would reasonably be expected, by law, to become a material liability or Lien upon the property of it or any of its Subsidiaries; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim the amount, applicability or validity of which is being contested in 9 good faith by appropriate proceedings and for which adequate provision has been made or for which adequate reserves, to the extent required under GAAP, have been taken. SECTION 4.02. MAINTENANCE OF PROPERTIES AND INSURANCE. (a) The Company shall cause all material properties owned by or leased by it or any of its Subsidiaries used or useful to the conduct of its business or the business of any of its Subsidiaries to be maintained and kept in normal condition, repair and working order and supplied with all necessary equipment and shall cause to be made all necessary repairs, renewals and replacements thereof, all as in its judgment may be reasonably necessary, so that the business carried on in connection therewith may be properly conducted at all times; provided, however, that nothing in this Section 4.02 shall prevent the Company or any of its Subsidiaries from discontinuing the use, operation or maintenance of any of such properties, or disposing of any of them, if such properties are, in the reasonable and good faith judgment of the Board of Directors of the Company or such Subsidiary, as the case may be, no longer reasonably necessary in the conduct of their respective businesses or such disposition is otherwise permitted by this Stock Purchase Agreement. (b) The Company shall provide or cause to be provided, for itself and each of its Subsidiaries, insurance (including appropriate self-insurance) against loss or damage of the kinds that, in the reasonable, good faith judgment of the Board of Directors of the Company, are adequate and appropriate for the conduct of the business of the Company and such Subsidiaries in a prudent manner, with reputable insurers or with the government of the United States of America or an agency or instrumentality thereof, in such amounts, with such deductibles and by such methods as shall be customary, in the good faith judgment of the Board of Directors of the Company, for companies similarly situated in the industry. SECTION 4.03. COMPLIANCE WITH LAWS. The Company will comply, and will cause each of its Subsidiaries to comply, with all applicable statutes, rules, regulations, orders and restrictions of the United States, all states and municipalities thereof, and of any governmental department, commission, board, regulatory authority, bureau, agency and instrumentality of the foregoing, in respect of the conduct of their respective businesses and the ownership of their respective properties, except for such noncompliances as are being contested in good faith and by appropriate proceedings and except for such noncompliances as would not in the aggregate reasonably be expected to have a Material Adverse Effect. SECTION 4.04. COMMISSION REPORTS. (a) The Company will deliver to the Purchaser promptly, but in any event no later than 5 Business Days after it files with the Commission, to the extent not available on the EDGAR system, copies of the quarterly and annual reports and of the information, documents and other reports, if any, which the Company is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act. (b) In the event the Company is not required to furnish such reports to its 10 stockholders pursuant to the Exchange Act, the Company (at its own expense) shall cause its consolidated financial statements, comparable to those which would have been required to appear in annual or quarterly reports, to be delivered to the Purchaser. SECTION 4.05. SECURITIES MATTERS. The Company shall file all periodic reports required to be filed with the Commission pursuant to the Exchange Act in a timely manner and shall not terminate its status as an issuer required to file periodic reports under the Exchange Act. The Company shall promptly secure the listing of all Registrable Securities (as defined in the Registration Rights Agreement) upon each national securities exchange and automated quotation system, if any, upon which shares of Common Stock are listed (subject to official notice of issuance) and shall maintain such listing. The Company shall maintain the Common Stock's authorization for quotation on the NASDAQ National market or obtain a listing on the NASDAQ SmallCap Market, The New York Stock Exchange or the American Stock Exchange. The Company shall timely file a Form D with respect to the Common Stock as required under Regulation D and provide a copy thereof to the Purchaser promptly after such filing. The Company shall, on or before the date of the Closing, take such actions as shall be reasonably necessary in order to obtain an exemption for or to qualify the Common Stock for sale to the Purchaser pursuant to this Stock Purchase Agreement under applicable securities or "blue sky" laws of the states of the United States (or to obtain an exemption from such qualification) and shall provide evidence of any such action so taken to the Purchaser on or prior to the date of the Closing. The Company shall make all filings and reports relating to the offer and sale of the Common Stock required under applicable securities or "blue sky" laws of the states of the United States following the date of the Closing. SECTION 4.06. USE OF PROCEEDS. The Company will use the proceeds from the sale of the Common Stock to pay existing indebtedness of the Company or for general corporate working capital purposes. ARTICLE FIVE CONDITIONS SECTION 5.01. CONDITIONS TO THE COMPANY'S OBLIGATION. The obligation of the Company hereunder to issue and sell the Common Stock to the Purchaser at the Closing is subject to the satisfaction, at or before the Closing, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion by providing the Purchaser with prior written notice thereof: 11 (a) The Purchaser shall have delivered to the Company the Registration Rights Agreement duly executed by the Purchaser. (b) The Purchaser shall have delivered to the Company the purchase price for the Common Stock as set forth in Section 2.01 at the Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. SECTION 5.02. CONDITIONS TO THE PURCHASER'S OBLIGATION. The obligation of the Purchaser to purchase the Common Stock at the Closing is subject to the satisfaction, at or before the Closing, of each of the following conditions, provided that these conditions are for the Purchaser's sole benefit and may be waived by the Purchaser at any time in its sole discretion by providing the Company with prior written notice thereof: (a) The Purchaser shall have received the Registration Rights Agreement duly executed by the Company. (b) The Purchaser shall have received certificates for shares of Common Stock to be purchased by it at the Closing. (c) The Purchaser shall have received an Opinion of Counsel from the Company in the form and content reasonably acceptable to it. (d) The Purchaser shall have received a certified copy of the Certificate of Incorporation of the Company, together with a Good Standing Certificate with respect to the Company issued by the Secretary of State of such state of incorporation as of a date within 10 days of the date of the Closing. (e) The Purchaser shall have received a copy of the certificate evidencing the Company's qualification as a foreign corporation in good standing issued by the Secretary of State of the State of New York as of a date within 10 days of the date of the Closing. (f) The Purchaser shall have received a certificate executed by the Secretary of the Company and dated as of the date of the Closing, certifying as to (i) the resolutions as adopted by the Company's Board of Directors in connection with the authorization of the transactions contemplated hereby, (ii) the Certificate of Incorporation of the Company and (iii) the Bylaws of the Company, each as in effect at the time of the Closing Date. (g) The Purchaser shall have received a copy of all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Common Stock. (h) The Purchaser shall have received a copy of such other documents relating to the transactions contemplated by this Stock Purchase Agreement as the Purchaser or its counsel may reasonably request. 12 ARTICLE SIX MISCELLANEOUS SECTION 6.01. NOTICES. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telecopier, by reputable overnight delivery service, or registered mail, postage prepaid, return receipt requested, addressed as follows: if to the Company: Viewpoint Corporation 498 Seventh Avenue, Suite 1810 New York, New York 10018 Facsimile: (212) 201-0846 Attention: General Counsel with a copy to Milbank, Tweed, Hadley & McCloy LLP 1 Chase Manhattan Plaza New York, New York 10005 Facsimile: (212) 822-5171 Attention: Alexander M. Kaye, Esq. if to the Purchaser: Federal Partners, L.P. c/o Ninth Floor Corporation, its General Partner One Rockefeller Plaza, 1st Floor New York, N.Y. 10020 Attn: Stephen M. Duff, Esq., Treasurer with a copy to: Patterson, Belknap, Webb & Tyler LLP 1133 Avenue of the Americas New York, New York 10036 Attention: Jeffrey E. LaGueux, Esq. Facsimile: (212) 336-2222 The Company and the Purchaser by written notice to each other may designate additional or different addresses for notices to such Person. Any notice or communication to the 13 Company shall be deemed to have been given or made as of the date so delivered if personally delivered; when receipt is acknowledged, if telecopied; one (1) business day after mailing by reputable overnight courier; and five (5) calendar days after mailing if sent by registered mail, postage prepaid (except that, notwithstanding the foregoing, a notice of change of address shall not be deemed to have been given until actually received by the addressee). Notice to the Purchaser shall be deemed given when actually received by the Purchaser. SECTION 6.02. GOVERNING LAW. THIS STOCK PURCHASE AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO AGREE TO SUBMIT TO THE JURISDICTION OF THE FEDERAL OR STATE COURTS LOCATED IN THE CITY OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS STOCK PURCHASE AGREEMENT. SECTION 6.03. SUCCESSORS. All agreements of the Company in this Stock Purchase Agreement shall bind its successors. SECTION 6.04. COUNTERPARTS. The parties may sign any number of copies of this Stock Purchase Agreement. Each signed copy or counterpart shall be an original, but all of them together shall represent the same agreement. SECTION 6.05. SEVERABILITY. In case any one or more of the provisions in this Stock Purchase Agreement shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law. SECTION 6.06. PAYMENT OF EXPENSES. The Company shall pay or reimburse Clark Partners P L.P. for its reasonable out-of-pocket costs and expenses, including reasonable legal fees and disbursements, incurred in connection with the preparation, execution and delivery of this Stock Purchase Agreement up to a maximum of $30,000. The Company shall pay or reimburse the Purchaser for its reasonable out-of-pocket costs and expenses, including reasonable legal fees and disbursements, incurred in connection with any amendment, supplement, waiver or modification to this Stock Purchase Agreement and for all of its out-of-pocket costs and expenses, including reasonable legal fees, 14 incurred in connection with the enforcement of this Stock Purchase Agreement or the Registration Rights Agreement. [SIGNATURE PAGES TO FOLLOW] 15 SIGNATURES IN WITNESS WHEREOF, the parties hereto have caused this Stock Purchase Agreement to be duly executed, all as of the date first written above. THE COMPANY: ----------- VIEWPOINT CORPORATION By: /s/ William H. Mitchell ----------------------------------- Name: William H. Mitchell Title: Chief Financial Officer THE PURCHASER: ------------- FEDERAL PARTNERS, L.P., by Ninth Floor Corporation, its General Partner By: /s/ Stephen M. Duff ----------------------------------- Name: Stephen M. Duff Title: Treasurer 16 EX-10.2 4 y91814exv10w2.txt REGISTRATION RIGHTS AGREEMENT EXHIBIT 10.2 REGISTRATION RIGHTS AGREEMENT REGISTRATION RIGHTS AGREEMENT, dated as of November 12, 2003 (the "Agreement") by and between Viewpoint Corporation, a Delaware corporation (the "Company"), and Federal Partners, L.P., a Delaware limited partnership (the "Purchaser"). W I T N E S S E T H WHEREAS, in connection with the Stock Purchase Agreement by and between the parties hereto of even date herewith (the "Stock Purchase Agreement"), the Company has agreed, upon the terms and conditions set forth therein, to issue and sell 3,125,000 shares of its common stock, par value $.001 per share (the "Common Stock"), to the Purchaser. NOW, THEREFORE, in consideration of the premises and the mutual agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows: 1. Certain Definitions. As used in this Agreement, the following terms shall have the meanings ascribed to them below: "Commission": the Securities and Exchange Commission or any successor agency. "Common Stock": Common Stock, par value $.001 per share, of the Company. "Person": any natural person, corporation, partnership, limited liability company, firm, association, trust, government, governmental agency or other entity, whether acting in an individual, fiduciary, or other capacity. "Purchaser" or "Purchasers": the Purchaser identified in the Preamble hereto and any other Person who shall hereafter acquire Registrable Securities from the Purchaser and to whom the Purchaser assigns its rights under this Agreement and who agrees to become bound by the provisions of this Agreement in accordance with Section 3.4(a). "Registrable Securities": shares of Common Stock acquired pursuant to the Stock Purchase Agreement; provided, that any shares of Common Stock constituting Registrable Securities shall cease to be such at such time as (A) they are distributed to the public pursuant to a registration statement under the Securities Act or Rule 144 thereunder, (B) they become subject to resale pursuant to Rule 144(k) under the Securities Act (or any successor provision) ("Rule 144"), (C) the Purchaser thereof may sell all such shares held by such Purchaser in a single 90-day period under Rule 144 because such shares constitute not more than 1.0% of the outstanding shares of Common Stock (provided, in the case of clause (B) and this clause (C), that any shares which cease to be Registrable Securities by operation of such clauses shall again become Registrable Securities if such shares can no longer be sold in a single 90-day period pursuant to Rule 144), or (D) they shall have otherwise been transferred and the new certificate evidencing ownership thereof does not bear a restrictive legend pursuant to the Securities Act and is not subject to a stop transfer order delivered by or on behalf of the Company. For all purposes of this Agreement, a "majority in interest" of the Purchasers or a group thereof shall be determined on the basis of the Registrable Securities held by them. "Registration Statement" means the registration statement or registration statements filed under the Securities Act covering the Registrable Securities. "Securities Act": the Securities Act of 1933, as amended. 2. Registration Rights. 2.1 Mandatory Registration. (a) The Company shall prepare, and, as soon as practicable but in no event later than 45 days after the Closing (as defined in the Stock Purchase Agreement) (the "Filing Deadline"), file with the Commission a Registration Statement covering the resale of all of the Registrable Securities. The Registration Statement prepared pursuant hereto shall register for resale all of the Registrable Securities. The Company shall use its reasonable best efforts to have the Registration Statement declared effective by the SEC as soon as practicable, but in no event later than the date which is 90 days after the Closing Date (the "Effectiveness Deadline"). (b) The registration pursuant to this Section 2.1 shall be on Form S-3 (or any equivalent successor form), if permitted. 2.2 Effect of Failure to File and Obtain and Maintain Effectiveness of Registration Statement. If (i) a Registration Statement covering all the Registrable Securities required to be covered thereby and required to be filed by the Company pursuant to this Agreement is (A) not filed with the SEC on or before the respective Filing Deadline or (B) not declared effective by the SEC on or before 30 days after the respective Effectiveness Deadline or (ii) on any day after such Registration Statement has been declared effective by the SEC sales of all the Registrable Securities required to be included on such Registration Statement cannot be made pursuant to such Registration Statement (including, without limitation, because of a failure to keep such Registration Statement effective, to disclose such information as is necessary for sales to be made pursuant to such Registration Statement or to register sufficient shares of Common Stock), then, as partial relief for the damages to any holder by reason of any such delay in or reduction of its ability to sell the Registrable Securities (which remedy shall not be exclusive of any other remedies available at law or in equity), the Company shall pay to each holder of Registrable Securities an amount in cash equal to 3% of the number of Registrable Securities held by such Purchaser as of the Filing Deadline, the 30th day after the Effectiveness Deadline or the date referred to in clause (ii) above, as the case may be. Such payments shall be due within 5 days after the relevant date and on the earlier to occur of (i) every 30 days thereafter (prorated for periods of less than 30 days) and (ii)(a) the date that the Registration Statement is declared effective, in the case of the failure to file by the Filing Deadline or to have the Registration 2 Statement declared effective by the 30th day after the Effectiveness Deadline, or (b) the date that sales of all the Registrable Securities required to be included in the Registration Statement may lawfully resume. 2.3 Registration Procedures. When the Company, pursuant to the provisions of this Agreement, uses its reasonable best efforts to effect or cause the registration of any Registrable Securities under the Securities Act as provided in this Agreement, the Company shall, as expeditiously as possible: (a) prepare and file with the Commission a Registration Statement on Form S-3, to the extent permitted, or other available form for the disposition of Registrable Securities in accordance with the intended method of disposition thereof (provided such intended method of distribution shall not include an underwritten public offering), which form shall be available for the sale of the Registrable Securities by the selling Purchasers thereof and such Registration Statement shall comply as to form in all material respects with the requirements of the applicable form and include all financial statements required by the Commission to be filed therewith, and the Company shall use its reasonable best efforts to cause such Registration Statement to become and remain effective (provided, however, that before filing a Registration Statement or prospectus or any amendments or supplements thereto, or comparable statements under securities or blue sky laws of any jurisdiction, the Company will furnish to one counsel designated by a majority of the Purchasers (the "Designated Counsel") participating in the planned offering, copies of all such documents proposed to be filed (including all exhibits thereto but excluding Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K and any similar or successor reports), which documents will be subject to the reasonable review and reasonable comment of such counsel; (b) prepare and file with the Commission such amendments and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for such period as any seller of Registrable Securities pursuant to such Registration Statement shall reasonably request and to comply with the provisions of the Securities Act with respect to the sale or other disposition of all Registrable Securities covered by such Registration Statement in accordance with the intended methods of disposition (provided such intended method of distribution shall not include an underwritten public offering) by the seller or sellers thereof as set forth in such Registration Statement; (c) furnish, without charge and upon request, to each seller of such Registrable Securities covered by such Registration Statement such number of copies of such Registration Statement, each amendment and supplement thereto (in each case including all exhibits), and the prospectus included in such registration statement (including each preliminary prospectus) in conformity with the requirements of the Securities Act, and other documents, as such seller may reasonably request in order to facilitate the public sale or other disposition of the Registrable Securities owned by such seller (the Company hereby consenting to the use in accordance with all applicable law of each such Registration Statement (or amendment or post-effective amendment thereto) and each such prospectus (or preliminary prospectus or supplement 3 thereto) by each such seller of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by such Registration Statement or prospectus; (d) use its reasonable best efforts to register or qualify the Registrable Securities covered by such Registration Statement under such other applicable securities or "blue sky" laws of such jurisdictions as any sellers of Registrable Securities shall reasonably request, and do any and all other acts and things which may be reasonably necessary or advisable to enable such sellers or underwriter, if any, to consummate the disposition of the Registrable Securities in such jurisdictions, except that in no event shall the Company be required to qualify to do business as a foreign corporation in any jurisdiction where it would not, but for the requirements of this paragraph (d), be required to be so qualified, to subject itself to taxation in any such jurisdiction or to consent to general service of process in any such jurisdiction; (e) promptly notify each Purchaser selling Registrable Securities covered by such Registration Statement: (i) when the Registration Statement, any pre-effective amendment, the prospectus or any prospectus supplement related thereto or post-effective amendment to the Registration Statement has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (ii) of any request by the Commission or state securities authority for amendments or supplements to the Registration Statement or the prospectus related thereto or for additional information; (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement 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 of any Registrable Securities for sale under the securities or blue sky laws of any jurisdiction or the initiation of any proceeding for such purpose; and (v) of the existence of any fact of which the Company becomes aware which results in the Registration Statement, the prospectus related thereto or any document incorporated therein by reference containing an untrue statement of a material fact or omitting to state a material fact required to be stated therein or necessary to make any statement therein not misleading (provided that in no event shall such notification contain any material, non-public information); and, subject to Section 2.3 (m), if the notification relates to an event described in clause (v), the Company shall promptly prepare and furnish to each such seller a reasonable number of copies of a prospectus supplemented or amended so that, as thereafter delivered to the Purchasers of such Registrable Securities, such prospectus shall not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in the light of the circumstances under which they were made not misleading; (f) comply with all applicable rules and regulations of the Commission, and make generally available to its security holders, as soon as reasonably practicable after the effective date of the Registration Statement (and in any event within 16 months thereafter), an earnings statement (which need not be audited) covering the period of at least twelve consecutive months beginning with the first day of the Company's first calendar quarter after the effective date of the registration statement, which earnings statement shall satisfy the provisions of Section 1.1(a) of the Securities Act and Rule 158 thereunder; 4 (g) (i) use its reasonable best efforts to cause all such Registrable Securities covered by such registration statement to be listed on the principal securities exchange on which similar securities issued by the Company are then listed (if any), if the listing of such Registrable Securities is then permitted under the rules of such exchange, or (ii) if no similar securities are then so listed, use reasonable best efforts to cause all such Registrable Securities to be, at the Company's option, listed on a national securities exchange or, as a NASDAQ security within the meaning of Rule 11Aa2-1 promulgated by the Commission pursuant to the Exchange Act or, failing that, secure NASDAQ authorization for such shares and without limiting the generality of the foregoing, take all actions that may be required by the Company as the issuer of such Registrable Securities in order to facilitate the managing underwriter's arranging for the registration of at least two market makers as such with respect to such shares with the National Association of Securities Dealers, Inc. (the "NASD"); (h) at the reasonable request of any Purchaser, the Company shall furnish to such Purchaser, not later than the next business day following the date of the effectiveness of the Registration Statement, an opinion from the Company's General Counsel in customary form covering such matters as are customarily covered by such opinions, addressed to such Purchaser; (i) deliver to the Designated Counsel copies of all correspondence between the Commission and the Company, its counsel or auditors or with the Commission or its staff with respect to the Registration Statement, other than those portions of any such correspondence and memoranda which contain information subject to attorney-client privilege with respect to the Company, and, upon receipt of such confidentiality agreements as the Company may reasonably request, make reasonably available for inspection by (i) any seller of such Registrable Securities covered by such registration statement, (ii) the Designated Counsel and (iii) one firm of accountants or other agents designated by the majority of the Purchasers whose Registrable Securities are included in the registration statement, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause all of the Company's officers, directors and employees to supply all information reasonably requested by any such persons or entities, in connection with such Registration Statement; (j) use its reasonable best efforts to obtain the withdrawal of any order suspending the effectiveness of the registration statement; (k) cooperate with the selling Purchasers of Registrable Securities to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold, and cause such Registrable Securities to be issued in such denominations and registered in such names in accordance with the instructions of the selling Purchasers of Registrable Securities, at least three business days prior to any sale of Registrable Securities; (l) take all such other commercially reasonable actions as the Company deems necessary or advisable in order to expedite or facilitate the disposition of such Registrable Securities in accordance with this Agreement; and (m) notwithstanding anything to the contrary herein, at any time after the Registration Statement has been declared effective by the Commission, the Company may delay the disclosure of material non-public information concerning the Company the disclosure of 5 which at the time is not, in the good faith opinion of the Board of Directors of the Company and its counsel, in the best interest of the Company and, based upon the advice of counsel to the Company, otherwise required (a "Grace Period"); provided, that the Company shall promptly (i) notify the Purchasers in writing of the existence of material non-public information giving rise to a Grace Period (provided that in each notice the Company will not disclose the content of such material non-public information to the Purchasers) and the date on which the Grace Period will begin, and (ii) notify the Purchasers in writing of the date on which the Grace Period ends; and, provided further, that no Grace Period shall exceed twenty (20) consecutive days and during any three hundred sixty five (365) day period such Grace Periods shall not exceed an aggregate of ninety (90) days and the first day of any Grace Period must be at least five (5) trading days after the last day of any prior Grace Period (each, an "Allowable Grace Period"). For purposes of determining the length of a Grace Period above, the Grace Period shall begin on and include the date the Purchasers receive the notice referred to in clause (i) and shall end on and include the later of the date the Purchasers receive the notice referred to in clause (ii), the last day on which such Grace Period will be on Allowable Grace Period and (iii) the date referred to in such notice. The provisions of the last clause of Section 2.3 (e) hereof shall not be applicable during the period of any Allowable Grace Period. Upon expiration of the Grace Period, the Company shall again be bound by the last clause of Section 2.3 (e) with respect to the information giving rise thereto unless such material non-public information is no longer applicable. It shall be a condition precedent to the Company's obligations under this Section 2 that each seller of Registrable Securities as to which any registration is being effected furnish the Company such information regarding such seller, the Registrable Securities held by it and the intended method of distribution of such securities as the Company may from time to time reasonably request provided that such information shall be used only in connection with such registration; provided, however, that any such information shall be given or made by a seller of Registrable Securities without representation or warranty of any kind whatsoever, except representations with respect to the identity of the seller, such seller's Registrable Securities and such seller's intended method of distribution or any other representations required by applicable law. Each Purchaser, by such Purchaser's acceptance of the Registrable Securities, agrees to cooperate with the Company as reasonably requested by the Company in connection with the preparation and filing of any Registration Statement hereunder unless such Purchaser has notified the Company in writing of such Purchaser's election to exclude all of such Purchaser's Registrable Securities from such Registration Statement. Each Purchaser of Registrable Securities agrees that upon receipt of any notice from the Company of the happening of any event of the kind described in clause (v) of paragraph (e) of this Section 2.3, such Purchaser will immediately discontinue such Purchaser's disposition of Registrable Securities pursuant to the registration statement covering such Registrable Securities until such Purchaser's receipt of the copies of the supplemented or amended prospectus contemplated by paragraph (e) of this Section 2.3 and if so directed by the Company will deliver to the Company (at the Company's expense) all copies, other than permanent file copies, then in such Purchaser's possession of the prospectus covering such Registrable Securities that was in effect at the time of receipt of such notice. 6 2.4 Registration Expenses. The Company shall, whether or not any registration pursuant to this Agreement becomes effective, pay all reasonable and customary expenses incident to the Company's performance of or compliance with this Article 2, including (i) Commission, stock exchange or NASD registration and filing fees and all listing fees and fees with respect to the inclusion of securities in NASDAQ, (ii) fees and expenses of compliance with state securities or "blue sky" laws and in connection with the preparation of a "blue sky" survey, including without limitation, reasonable fees and expenses of blue sky counsel, (iii) printing expenses, (iv) messenger and delivery expenses, (v) internal expenses (including, without limitation, all salaries and expenses of the Company's officers and employees performing legal and accounting duties), (vi) fees and disbursements of counsel for the Company, (vii) the reasonable and documented fees and disbursements of the Designated Counsel, which amount shall not exceed $5,000, and fees and expenses of other persons, including special experts, retained by the Company. Notwithstanding the foregoing, (A) the provisions of this Section 2.4 shall be deemed amended to the extent necessary to cause these expense provisions to comply with "blue sky" laws of each state in which the offering is made and (B) in connection with any registration hereunder, each Purchaser of Registrable Securities being registered shall pay all underwriting discounts and commissions and transfer taxes, if any, attributable to such Registrable Securities. 2.5 Indemnification and Contribution. (a) In the event of any registration of any of the Registrable Securities under the Securities Act pursuant to this Agreement, to the extent permitted by law, the Company will indemnify and hold harmless the seller of such Registrable Securities, and each other person, if any, who controls such seller or underwriter within the meaning of the Securities Act or the Exchange Act (each, a "Seller Indemnified Party") against any losses, claims, damages or liabilities, joint or several, to which such Seller Indemnified Party may become subject under the Securities Act, the Exchange Act, state securities or Blue Sky laws 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 Registrable Securities were registered under the Securities Act, any preliminary prospectus or final prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arise out of or are based upon the omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and the Company will reimburse such Seller Indemnified Party for any legal or other expenses (in each case, to the extent such expenses are documented and reasonable) incurred by such Seller Indemnified Party in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the foregoing indemnification and reimbursement (i) shall not apply to the extent that any such loss, claim, damage or liability arises out of or is based upon any untrue statement or omission made in such Registration Statement, preliminary prospectus, final prospectus or in any filing made in connection with the securities or blue sky laws of any jurisdiction, or any such amendment or supplement thereto, in each case, in reliance upon and in conformity with information furnished to the Company, in writing, by or on behalf of such Seller Indemnified Party specifically for use in the preparation thereof; (ii) with respect to any preliminary prospectus, shall not inure to the benefit of any such person from whom the person 7 asserting any such loss, claim, damage or liability purchased the Registrable Securities that are the subject thereof (or to the benefit of any person controlling such person) if the untrue statement or omission of material fact contained in the preliminary prospectus was corrected in the prospectus, as then amended or supplemented, and the Seller Indemnified Party was promptly advised in writing not to use the incorrect prospectus prior to the use giving rise to a violation and such Seller Indemnified Party, notwithstanding such advice, used it or failed to deliver the correct prospectus as required by the Securities Act; (iii) shall not be available to the extent such loss, claim, damage or liability is based on a failure of the Purchaser to deliver or to cause to be delivered the prospectus made available by the Company, including a corrected prospectus; and (iv) shall not apply to amounts paid in settlement of any loss, claim, damage or liability if such settlement is effected without the prior written consent of the Company. (b) In the event of any registration of any of the Registrable Securities under the Securities Act pursuant to this Agreement, each seller of Registrable Securities, severally and not jointly, will indemnify and hold harmless the Company, each of its directors and officers and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act (each, a "Company Indemnified Party"), against any losses, claims, damages or liabilities, joint or several, to which such Company Indemnified Party may become subject under the Securities Act, Exchange Act, state securities or Blue Sky laws 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 a material fact contained in any Registration Statement under which such Registrable Securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to the Registration Statement, or arise out of or are based upon any omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, if the statement or omission was made in reliance upon and in conformity with information relating to such seller furnished in writing to the Company by or on behalf of such seller specifically for use in connection with the preparation of such Registration Statement, preliminary prospectus, final prospectus, or in any filing made in connection with the securities or blue sky laws of any jurisdiction or any amendment or supplement thereto and each seller of Registrable Securities shall reimburse the Company for any legal or other expenses (in each case, to the extent such expenses are documented and reasonable) incurred by such Company Indemnified Party in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the obligations of such Purchasers hereunder shall be limited to an amount equal to the proceeds to each Purchaser of Registrable Securities sold in connection with such registration. (c) Each party entitled to indemnification under this Section 2.5 (the "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom; provided, that counsel for the Indemnifying Party, who shall conduct the defense of such claim or litigation, shall be approved by the Indemnified Party (whose approval shall not be unreasonably withheld); and, provided further, that the failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 2.5 except to the extent, if 8 any, that the Indemnifying Party shall have been actually prejudiced as a result of such failure (except that the Indemnifying Party shall not be liable for any expenses incurred during the period in which the Indemnified Party failed to give such notice). The Indemnified Party may participate in such defense at such party's expense; provided, however, that the Indemnifying Party shall pay such expense if representation of such Indemnified Party by the counsel retained by the Indemnifying Party would be inappropriate due to actual or potential differing interests between the Indemnified Party and any other party represented by such counsel in such proceeding. No Indemnifying Party, in the defense of any such claim or litigation shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability in respect of such claim or litigation, and no Indemnified Party shall consent to entry of any judgment or settle such claim or litigation without the prior written consent of the Indemnifying Party. (d) In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which either (i) any holder of Registrable Securities exercising rights under this Agreement, or any controlling person of any such holder, makes a claim for indemnification pursuant to this Section 2.5 but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the last right of appeal) that such indemnification may not be enforced in such case notwithstanding the fact that this Section 2.5 provides for indemnification in such case, or (ii) contribution under the Securities Act may be required on the part of any such selling Investor or any such controlling person in circumstances for which indemnification is provided under this Section 2.5; then, in each such case, the Company and such Purchaser will contribute to the aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportions so that such holder is responsible for the portion represented by the percentage that the public offering price of its Registrable Securities offered by the Registration Statement bears to the public offering price of all securities offered by such Registration Statement, and the Company is responsible for the remaining portion; provided, however, that, in any such case, (A) no such holder will be required to contribute any amount in excess of the proceeds to it of all Registrable Securities sold by it pursuant to such Registration Statement, and (B) no person or entity guilty of fraudulent misrepresentation, within the meaning of Section 11(f) of the Securities Act, shall be entitled to contribution from any person or entity who is not guilty of such fraudulent misrepresentation. 2.6 Grant of Further Registration Rights. For so long as the Purchasers hold Registrable Securities, the Company shall not grant any registration rights to any person without the prior written consent of a majority in interest of the Purchasers, and which consent may be withheld in the Purchasers' sole discretion unless such registration rights are subordinate in every respect to the rights of the Purchasers pursuant to this Agreement. 3. General. 3.1 Rule 144. If the Company shall have filed a registration statement pursuant to the requirements of Section 12 of the Exchange Act or a registration statement pursuant to the requirements of the Securities Act in respect of the Common Stock, the Company 9 covenants that it will timely file the reports required to be filed by it under the Securities Act or the Exchange Act (including, but not limited to, the reports under Sections 13 and 15(d) of the Exchange Act referred to in subparagraph (c)(1) of Rule 144 under the Securities Act), and will take such further action as any Purchaser of Registrable Securities may reasonably request, all to the extent required from time to time to enable such Purchaser to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by (i) Rule 144 under the Securities Act, as such Rule may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the Commission. Upon the request of any Purchaser of Registrable Securities (so long as such Purchaser owns such Registrable Securities), the Company will deliver to such Purchaser a written statement as to whether it has complied with such requirements. 3.2 Notices and Other Communications. All notices, requests, demands and other communications made in connection with this Agreement shall be in writing and shall be deemed to have been duly given (a) on the date of delivery, if delivered to the persons identified below, (b) five calendar days after mailing if mailed, with proper postage, by certified or registered mail, return receipt requested, (c) on the date of receipt if sent by telecopy, and confirmed in writing in the manner set forth in (b) on or before the next day after the sending of the telecopy, or (d) one business day after delivered to a nationally recognized overnight courier service marked for overnight delivery, in each case addressed to the Purchasers at their respective addresses set forth on the stock records of the Company, and to the Company at: Viewpoint Corporation 498 Seventh Avenue, Suite 1810 New York, New York 10018 Attention: General Counsel Telephone: (212) 201-0800 Telecopy No. (212) 201-0846 Milbank, Tweed, Hadley & McCloy LLP 1 Chase Manhattan Plaza New York, New York 10005 Telephone: (212) 530-5171 Facsimile: (212) 822-5171 Attention: Alexander M. Kaye, Esq. or to such other address as any party may, from time to time, designate in a written notice given in a like manner. 10 3.3 Amendments. This Agreement may be amended only by written instruments signed by the Company and a majority in interest of the Purchasers. No waiver of any right or remedy provided for in this Agreement shall be effective unless it is set forth in writing signed by a majority in interest of the Purchasers. No waiver of any right or remedy granted in one instance shall be deemed to be a continuing waiver under the same or similar circumstances thereafter arising. 3.4 Miscellaneous. (a) This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties hereto and the respective successors and assigns of the parties hereto, whether so expressed or not. This Agreement and the rights of the parties hereunder may be assigned by any of the parties hereto to any transferee of Registrable Securities if: (i) the Purchaser agrees in writing with the transferee or assignee to assign such rights, and a copy of such agreement is furnished to the Company within a reasonable time after such assignment; (ii) the Company is, within a reasonable time after such transfer or assignment, furnished with written notice of (a) the name and address of such transferee or assignee, and (b) the securities with respect to which such registration rights are being transferred or assigned; (iii) immediately following such transfer or assignment the further disposition of such securities by the transferee or assignee is restricted under the Securities Act and applicable state securities laws; (iv) at or before the time the Company receives the written notice contemplated by clause (ii) of this sentence the transferee or assignee agrees in writing with the Company to be bound by all of the provisions contained herein; and (v) such transfer shall have been made in accordance with the applicable requirements of the Stock Purchase Agreement. (b) If any term, provision, covenant or restriction of this Agreement or any exhibit hereto is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement and such exhibits shall remain in full force and effect and shall in no way be affected, impaired or invalidated. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and recitations without including any of such which may be hereafter declared invalid, void or unenforceable. (c) This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more of the counterparts have been signed by each party and delivered to the other parties, it being understood that all parties need not sign the same counterpart. (d) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflict of laws principles that would require the application of the laws of another jurisdiction. (e) Except as set forth in Sections 2.5(a) and (b), this Agreement is intended for the benefit of the parties hereto and their respective permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person. [THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK] 11 IN WITNESS WHEREOF, the Company and Purchasers have caused this Agreement to be executed and delivered by their respective officers thereunto duly authorized. THE COMPANY: ----------- VIEWPOINT CORPORATION By: /s/ William H. Mitchell ------------------------------------------ Name: William H. Mitchell Title: Chief Financial Officer THE PURCHASER: ------------- FEDERAL PARTNERS, L.P. by Ninth Floor Corporation, its general partner By: /s/ Stephen M. Duff ------------------------------------------ Name: Stephen M. Duff Title: Treasurer 12 -----END PRIVACY-ENHANCED MESSAGE-----