PIGGYBACK REGISTRATION RIGHTS AGREEMENT
This Piggyback Registration Rights Agreement (this "Agreement") is entered into
as of March 17, 2004 (the "Effective Date") by and between Xxxxxxx X. Xxxxxx, a
Massachusetts resident ("Happas") and SurfNet Media Group, Inc., a Delaware
corporation (the "Company").
A. The Company has issued Happas a warrant of even date herewith
entitling Happas to purchase up to 300,000 shares of the $.0001 par
value common stock of the Company (the "Registrable Shares");
B. The execution and delivery of this Agreement is a material inducement
and consideration to Happas to purchase the Registrable Shares and a
condition to the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, and covenants set forth in this Agreement, Happas
and the Company hereby agree as follows:
1.
DEFINITIONS
Capitalized terms used in this Agreement and not otherwise defined herein or in
the Stockholder Agreement shall have the respective meanings set forth below.
"ADVERSE DISCLOSURE" means public disclosure of material non-public information
relating to a Significant Transaction, which disclosure, in the good faith
judgment of a majority of the directors of the Company ("Company Directors"),
(i) would be required to be made in any registration statement filed with the
Commission by the Company so that such registration statement would not be
materially misleading; and (ii) would have an adverse effect on the Company's
ability to complete such Significant Transaction, or the terms upon which such
Significant Transaction can be completed.
"COMMISSION" means the Securities and Exchange Commission.
"PIGGYBACK REGISTRATION" has the meaning set forth in Section 2.1.
"REGISTER," "REGISTERED" and "REGISTRATION" refer to a registration effected by
preparing and filing of an appropriate registration statement with the
Commission in compliance with the Securities Act.
"REGISTRABLE SHARES" means (i) the shares of Common Stock acquired by Happas.
All Registrable Shares shall cease to be Registrable Shares when transferred to
any person or entity other than permitted transferees in accordance with the
terms of this Agreement, or (a) when sold in a registered public offering or in
accordance with Rule 144 promulgated by the Commission under the Securities Act,
or (b) when permitted to be sold in accordance with Rule 144(k).
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"REGISTRATION EXPENSES" means all expenses, except Selling Expenses, incurred by
the Company in complying with Article 2, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, blue sky fees and expenses,
the expense of any special audits incident to or required by any such
registration, and expenses of all marketing and promotional efforts reasonably
requested by the managing underwriter.
"SELLING EXPENSES" means all underwriting discounts, selling commissions, and
stock transfer taxes applicable to the sale of the Registrable Shares.
"SIGNIFICANT TRANSACTION" means a pending or imminent material acquisition,
disposition, financing, corporate reorganization or other business combination
or divestiture transaction.
ARTICLE 2
PIGGYBACK REGISTRATIONS
2.1 REQUEST FOR REGISTRATION. At any time after the date hereof, if the Company
proposes to register any Common Stock for sale solely for cash, either for
its own account or for the account of a stockholder or stockholders (a
"Company Registration"), then the Company shall give Happas written notice
of its intention to do so and of the intended method of sale (the
"Registration Notice") not fewer than 15 days prior to the anticipated
filing date of the registration statement effecting such Company
Registration. Happas may request inclusion of any Registrable Shares in
such Company Registration by delivering to the Company, within 10 days
after receipt of the Registration Notice, a written notice (the "Piggyback
Notice") stating the number of Registrable Shares proposed to be included
and that such shares are to be included in any underwriting only on the
same terms and conditions as the shares of Common Stock otherwise being
sold through underwriters under such Registration. The Company shall use
its reasonable efforts to cause all Registrable Shares specified in the
Piggyback Notice to be included in the Company Registration and any related
offering, all to the extent requisite to permit the sale by Happas of such
Registrable Shares in accordance with the method of sale applicable to the
other shares of Common Stock included in the Company Registration.
2.2 LIMITATIONS ON PIGGYBACK REGISTRATIONS. The Company's obligation to include
Registrable Shares in the Company Registration pursuant to Section 2.1
shall be subject to the following limitations:
2.2.1 The Company shall not be obligated to include any Registrable Shares
in a registration statement (i) filed on Form S-4 or FormS-8 or such
other similar successor forms then in effect under the Securities Act,
(ii) pursuant to which the Company is offering to exchange its own
securities, or (iii) relating to dividend reinvestment plans.
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2.2.2 If the managing underwriter(s), if any, of an offering related to the
Company Registration determines in its reasonable judgment that
marketing factors require a limitation of the number of shares of
Common Stock that can be included in such offering, the managing
underwriter(s) may exclude the appropriate number of shares of Common
Stock held by the stockholders of the Company, including Happas, from
such registration. If the managing underwriter(s) determines to
exclude from such offering any Registrable Shares that Happas desires
to include or any shares of Common Stock that other Company
stockholders with applicable registration rights desire to include,
Happas and such other Company stockholders (except for such person or
persons, if any, upon whose demand such Registration is being made)
shall share pro rata in the portion of such offering available to them
(the "Available Portion"), with Happas and each such other Company
stockholder entitled to include in such Company Registration and
related offering a number of shares of Common Stock equal to the
product of (i) the Available Portion and (ii) fraction, the numerator
of which is the total number of Registrable Shares which Happas
desires to include in such Company Registration (in the case of
Happas) or the total number of shares of Common Stock which such other
Company stockholder desires to include in such Company Registration
(in thecae of each such other Company stockholder) and the denominator
of which is(x) the total of the number of Registrable Shares which
Happas desires to include in such Company Registration plus (y) the
total number of shares of Common Stock that such other Company
stockholders desire to include in such Company Registration.
2.3 SELECTION OF UNDERWRITER. Any Company Registration and related offering
shall be managed by the Company; the Company shall have the power to select
the managing underwriter(s) for such offering, and shall in consultation
with the managing underwriter(s) have the power to determine the offering
price, the underwriting discounts and commissions, the terms of the
underwriting agreement and, the timing of the registration and related
offering. To the extent that Happas participates in a Company Registration
and related offering pursuant to Section 2.1, Happas shall enter into, and
sell its Registrable Shares only pursuant to, the underwriting arranged by
the Company, and shall either commit to attend the closing of the offering
and take such other actions as may be reasonably necessary to effect
Happas's participation in the offering and to provide any assurances
reasonably requested by the Company and the managing underwriter(s) in that
regard, or shall deliver to the Company in custody certificates
representing all Registrable Shares to be included in the registration and
shall execute and deliver to the Company a custody agreement and a power of
attorney, each inform and substance appropriate for the purpose of
effecting Happas's participation in the Company Registration and related
offering and otherwise reasonably satisfactory to the Company. If Happas
disapproves of the features of the Company Registration and related
offering, Happas may withdraw there from (in whole or part) by written
notice to the Company and the managing underwriter(s) delivered no later
than ten (10) days prior to the effectiveness of the applicable
registration statement and the Registrable Shares of Happas shall thereupon
be withdrawn from such registration.
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ARTICLE 3
REGISTRATION PROCEDURES AND EXPENSE
3.1. REGISTRATION PROCEDURES. If and whenever the Company is required pursuant
to this Agreement to use its reasonable efforts to effect the registration
of any of the Registrable Shares, Happas shall furnish in writing such
information regarding Happas and its Affiliates, the Registrable Shares
being registered and offered, and the intended method of distribution of
such Registrable Shares as is reasonably requested by the Company for
inclusion in the registration statement relating to such offering pursuant
to the Securities Act and the rules of the Commission thereunder, and the
Company shall, as expeditiously as reasonably practicable:
3.1.1 prepare and file with the Commission a registration statement
(including a prospectus therein) with respect to such securities and
use its reasonable efforts to cause such registration statement to
become and remain effective for such period as may be necessary to
permit the successful marketing of such securities, but not exceeding
120 days for an offering in connection with a Demand Registration, or,
with regard to an offering in connection with a Company Registration,
for the period associated with such offering;
3.1.2 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 comply with the Securities Act and
the rules of the Commission thereunder; and to keep such registration
statement effective for that period of time specified in Section
3.1.1;
3.1.3 furnish to Happas such number of prospectuses and preliminary
prospectuses in conformity with the requirements of the Securities
Act, and such other documents as Happas may reasonably request in
order to facilitate the public sale or other disposition of the
Registrable Shares being sold;
3.1.4 upon written request by any underwriters of the offering, and subject
to applicable rules and guidelines, cause its certified public
accountants and attorneys, as applicable, to furnish to Happas a
signed counterpart, addressed to Happas and its underwriters, if any,
of (i) a letter from the independent certified public accountants of
the Company in the form customarily furnished to underwriters in firm
commitment underwritten offerings providing substantially that such
accountants are independent certified public accountants within the
meaning of the Securities Act and that in the opinion of such
accountants, the financial statements and other financial data of the
Company included in the registration statement and the prospectus, and
any amendment or supplement thereto, comply as to form in all material
respects with the applicable accounting requirements of the Securities
Act, and additionally covering such other financial matters(including
information as of the date of such letter) with respect to the
registration in respect of which such letter is being given as the
underwriters may reasonably request; and (ii) an opinion of outside
legal counsel to the Company, dated the effective date of the
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registration statement, covering substantially the same matters with
respect to the registration statement and the prospectus included
therein as are customarily covered (at the time of such registration)
in the opinions of issuer's counsel delivered to the underwriters in
comparable underwritten public offerings;
3.1.5 use its reasonable efforts to register or qualify the Registrable
Shares covered by such registration statement under such securities or
blue sky laws of such jurisdictions within the United States as Happas
or its underwriters, if any, shall reasonably request; provided,
however, that the Company shall not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified,
or to take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject, or
subject the Company to any tax in any such jurisdiction where it is
not then so subject;
3.1.6 cause all such Registrable Shares to be listed on each securities
exchange on which similar securities issued by the Company are then
listed;
3.1.7 provide a transfer agent and registrar for all such Registrable
Shares not later than the effective date of such registration
statement;
3.1.8 make available for inspection by Happas and its attorneys, and any
participating underwriter, accountant or other agent retained by
Happas and any participating underwriter in a Demand Registration, all
financial and other records, pertinent documents and properties of the
Company, and cause the Company's Affiliates (to the extent it controls
such Affiliates), employees, and agents to supply all information
reasonably requested by Happas and any such underwriter, attorney,
accountant or agent in connection with the preparation of such
registration statement.
3.2. EXPENSES. The Company shall pay all Registration Expenses, except as may be
required to update any registration statement kept effective for more than
the period of time required by Section 3.1.1. Happas shall pay all Selling
Expenses.
ARTICLE 4
INDEMNIFICATION
4.1. INDEMNIFICATION BY THE COMPANY. In the event of a registration of any
Registrable Shares pursuant to this Agreement, the Company shall indemnify
and hold harmless each seller of Registrable Shares, and each person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act, and each officer, director, employee and advisor of each of
the foregoing (each an "Investor Indemnitee"), against any expenses,
losses, claims, damages or liabilities, joint or several, to which such
Investor Indemnitee may become subject under the Securities Act, any state
securities law or otherwise, including any of the foregoing incurred in
settlement of any litigation, commenced or threatened, insofar as such
expenses, losses, claims, damages or liabilities (or actions in respect
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thereof) arise out of or are based upon (i)any untrue statement or alleged
untrue statement of any material fact contained in any registration
statement under which such shares are registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, any
summary prospectus used in connection with any securities being registered,
or any amendment or supplement thereto; or (ii) any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; or (iii) any violation by the
Company of the Securities Act or rules of the Commission thereunder or any
blue sky laws or any rules promulgated thereunder, and shall reimburse each
such Indemnitee for any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company shall not
be liable in any such case to the extent that any such expense, loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in such registration statement, said preliminary prospectus or said
prospectus or summary prospectus or said amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of Happas or any underwriter specifically for use
in the preparation thereof; and provided, further, that if any expenses,
losses, claims, damages or liabilities arise out of or are based upon an
untrue statement, alleged untrue statement, omission or alleged omission
contained in any preliminary prospectus which did not appear in the final
prospectus, the Company shall not have any liability with respect thereto
to any Investor Indemnitee if any Investor Indemnitee delivered a copy of
the preliminary prospectus to the person alleging such expenses, losses,
claims, damages or liabilities and failed to deliver a copy of the final
prospectus as amended or supplemented if it has been amended or
supplemented, to such person at or prior to the written confirmation of the
sale to such person.
4.2. INDEMNIFICATION BY HAPPAS. In the event of a registration of any
Registrable Shares pursuant to this Agreement, Happas shall indemnify and
hold harmless the Company and each person, if any, who controls the Company
within the meaning of the Securities Act, each officer of the Company who
signs the registration statement, each director of the Company and each
underwriter and each person who controls any underwriter within the meaning
of the Securities Act (each a "Company Indemnitee"), against any and all
such expenses, losses, claims, damages or liabilities referred to in
Section 4.1 if the statement, alleged statement, omission or alleged
omission in respect of which such expense, loss, claim, damage or liability
is asserted was made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of a holder of
Registrable Shares specifically for use in connection with the preparation
of such registration statement, preliminary prospectus, prospectus, summary
prospectus, amendment or supplement; provided, however, that if any
expenses, losses, claims, damages or liabilities arise out of or are based
upon an untrue statement, alleged untrue statement, omission or alleged
omission contained in any preliminary prospectus which did not appear in
the final prospectus, Happas shall not have any such liability with respect
thereto to any Company Indemnitee if any Company Indemnitee delivered a
copy of the preliminary prospectus to the person alleging much expenses,
losses, claims, damages or liabilities and failed to deliver a copy of the
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final prospectus, as amended or supplemented if it has been amended or
supplemented, to such person at or prior to the written confirmation of the
sale to such person.
4.3. CONTRIBUTION. If the indemnification provided for in Sections 4.1 or 4.2
above is unavailable to an indemnified party in respect of any losses,
claims, damages or liabilities referred to therein, then in lieu of
indemnifying such indemnified party thereunder, the indemnifying party
shall contribute to the amount paid or payable by such indemnified party as
a result of such losses, claims, damages or liabilities, in such proportion
as is appropriate to reflect the relative fault of the indemnifying party
on the one hand and of the indemnified parties on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by
the indemnifying party, or by the indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties agree that it
would not be just and equitable if contribution pursuant to this Section
4.3 were determined by pro rata allocation or by any other method of
allocation which does not take into account the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages
and liabilities or actions in respect thereof referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. No person guilty of fraudulent
misrepresentations (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.
4.4. INDEMNIFICATION PROCEDURES. Promptly after receipt by an indemnified party
of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party,
notify the indemnifying party in writing of the commencement thereof; but
the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under this Article 4 or to the extent that it has not been prejudiced as a
proximate result of such failure. In case any such action shall be brought
against any indemnified party, and it shall notify the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from
or additional to those available to the Company, the indemnified party or
parties shall have the right to select one separate counsel to assert such
legal defenses (in which case the indemnifying party shall not have the
right to direct the defense of such action on behalf of the indemnified
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party or parties). Upon the permitted assumption by the indemnifying party
of the defense of such action, and approval by the indemnified party of
counsel, the indemnifying party shall not be liable to such indemnified
party under this Article 4 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
(other than reasonable costs or investigation) unless (i) the indemnified
party shall have employed one separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next
preceding sentence, (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time, (iii) the indemnifying party
and its counsel do not actively and vigorously pursue the defense of such
action or (iv) the indemnifying party has authorized the employment of
counsel for the indemnified party at the expense of the indemnifying party.
ARTICLE 5
MISCELLANEOUS
5.1 GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement shall be governed
by, construed under and enforced in accordance with, the laws of the State
of Delaware without regard to its conflict-of-laws principles. Happas and
the Company agree that (i) any legal action or proceeding arising out of or
in connection with this Agreement or the transactions contemplated hereby
shall be brought only in the courts of the State of Arizona or Federal
courts of the United States of America sitting in Arizona, (ii) each
irrevocably submits to the jurisdiction of each such court, and (iii) any
summons, pleading, judgment, memorandum of law, or other paper relevant to
any such action or proceeding shall be sufficiently served if delivered to
the recipient thereof by certified or registered mail (with return receipt)
at its address set forth in Section 5.3. Nothing in the proceeding sentence
shall affect the right of any party to proceed in any jurisdiction for the
enforcement or execution of any judgment, decree or order made by a court
specified in said sentence.
5.2 SPECIFIC PERFORMANCE. The parties hereto acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specifications
or were otherwise breached. It is accordingly agreed that each of the
parties hereto shall be entitled to an injunction or injunctions to prevent
or cure breaches of the provisions of this Agreement by the other and to
enforce specifically the terms and provisions of this Agreement, this being
in addition to any other remedy to which they may be entitled by law or
equity.
5.3 NOTICES. Any notice required or permitted to be given under this Agreement
shall be written, and may be given by personal delivery, by cable,
telecopy, telex or telegram (with a confirmation copy mailed as follows),
by Federal Express, United Parcel Service, DHL, or other reputable
commercial delivery service, or by registered or certified mail,
first-class postage prepaid, return receipt requested. Notice shall be
deemed given upon actual receipt. Mailed notices shall be addressed as
follows, but each party may change address by written notice in accordance
with this paragraph.
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TO HAPPAS:
Xxxxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
TO THE COMPANY:
SurfNet Media Group, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxx, Xxxxx 0
Xxxxx, XX 00000
Attention: Chairman
5.4 WAIVER. Each party hereto may in its sole discretion (i) extend the time
for the performance of any of the obligations or other acts of the other
party hereunder or (ii) waive compliance by the other party with any of the
agreements or conditions contained herein. No term or provision hereof
shall be deemed waived and no breach hereof excused unless such waiver or
consent shall be in writing and signed by the party claimed to have waived
or consented (in the case of the Company, by a majority of the Company
Directors so waiving or consenting). No waiver hereunder shall apply or be
construed to apply beyond its expressly stated terms. No failure to
exercise and no delay in exercising any right, remedy, power or privilege
hereunder shall operate as a waiver thereof, and no single or partial
exercise of any right, remedy, power or privilege hereunder shall preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. No failure to insist upon strict performance of
any term or provision of this Agreement, or to exercise any right
hereunder, shall be construed as a waiver or as a relinquishment of such
term, provision, or right.
5.5 SUCCESSORS, ASSIGNMENT; PARTIES IN INTEREST AND THIRD PARTY BENEFICIARIES.
This Agreement and the rights hereunder may be assigned by Happas without
the prior written consent of the other party. This Agreement shall be
binding upon and inure solely to the benefit of Happas and the Company and
their respective successors and assigns, and except as provided in this
Section 5.5, nothing in this Agreement, express or implied, is intended to
or shall confer upon any other person any rights, benefits or remedies of
any nature whatsoever under or by reason of this Agreement.
5.6 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
Happas and the Company with respect to the subject matter hereof and
thereof and the transactions contemplated hereby and thereby and supersedes
all prior or contemporaneous, written or oral agreements or understandings
with respect thereto.
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5.7 AMENDMENT. This Agreement may be amended only to the extent permissible
under applicable law and only by a written instrument executed and
delivered by a duly authorized officer of Happas and a duly authorized
officer of the Company.
5.8 SEVERABILITY. The provisions set forth in this Agreement are severable. If
any provision of this Agreement is held invalid or unenforceable in any
jurisdiction, the remainder of this Agreement, and the application of such
provision to other persons or circumstances, shall not be affected thereby,
and shall remain valid and enforceable in such jurisdiction, and any such
invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
5.9 CUMULATION OF REMEDIES. All remedies available to any party for breach or
non-performance of this Agreement are cumulative and not exclusive of any
rights, remedies, powers or privileges provided by law, and may be
exercised concurrently or separately, and the exercise of any other remedy
shall not be deemed an election of such remedy to the exclusion of other
remedies.
5.10 FAIR CONSTRUCTION. This Agreement shall be deemed the joint work product of
Happas and the Company without regard to the identity of the draftsperson,
and any rule of construction that a document shall be interpreted or
construed against the drafting party shall not be applicable.
5.11 HEADINGS; REFERENCES. Headings used in this Agreement are inserted as a
matter of convenience and for reference, do not constitute a part of this
Agreement for any other purpose, and shall not affect the interpretation or
enforcement hereof or thereof.
5.12 COUNTERPARTS. This Agreement may be executed in two counterparts, each of
which shall be deemed an original, but both of which together shall
constitute one and the same instrument.
5.13 LEGAL COUNSEL. Happas hereby acknowledges that he has been advised that the
party who drafted this Warrant on behalf of SurfNet is a licensed attorney,
that such party is representing SurfNet's interests only and that Happas
been urged to retain legal counsel to advise him.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
The Company:
SURFNET MEDIA GROUP, INC.,
/s/ Xxxxxx X. Xxxxx
By: ___________________________
Xxxxxx X. Xxxxx
Chairman
Happas:
/s/ Xxxxxxx X. Xxxxxx
_________________________
Xxxxxxx X. Xxxxxx
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