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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
May 30, 2001, between Xx. Xxxxxx X. Xxxxxx ("Xx. Xxxxxx"), Information
Architects Corporation, a North Carolina corporation, ("IARC"), and Xxxx X.
Xxxxxx ("Xx. Xxxxxx") (collectively, the "Parties").
WHEREAS, the Parties and others have entered into a Settlement
Agreement dated as of May 30, 2001 (the "Settlement Agreement"), pursuant to
which, among other things, Xx. Xxxxxx shall cause (1) 610,000 shares of Common
Stock, which shares may include, in addition to the outstanding shares of Common
Stock of IARC owned by Xx. Xxxxxx, shares of Common Stock issued by IARC, and
(2) a non-negotiable promissory note in the principal amount of $600,000 (the
"Non-Recourse Note"), in the form annexed as EXHIBIT F to the Settlement
Agreement, together with the Security Agreement in the form annexed as EXHIBIT G
to the Settlement Agreement, to be delivered to Xx. Xxxxxx, in accordance with
this Agreement and the Settlement Agreement, as part of the settlement;
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WHEREAS, Xx. Xxxxxx will cause 500,000 shares of Common Stock
to be deposited in escrow with ZNC pursuant to the Stock Escrow Agreement
annexed as EXHIBIT H to the Settlement Agreement, which shares shall constitute
the sole collateral of the Non-Recourse Note subject to the Security Agreement.
NOW, THEREFORE, in consideration of mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the Parties hereto agree as
follows:
SECTION 1. Definitions. As used in this Agreement, the
following capitalized words and terms shall have the following meanings:
(a) "Agreement" shall have the meaning set forth in
the recitals.
(b) "Commission" shall mean the Securities and
Exchange Commission.
(c) "Common Stock" or "Common Shares" shall mean the
Common Stock, $.001 par value, of IARC.
(d) "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time, including the rules and
regulations of the Commission thereunder.
(e) "Final Order" shall mean the event as described
in Paragraph 7 of the Settlement Agreement.
(f) "IARC" shall have the meaning set forth in the
recitals.
(g) "Xx. Xxxxxx" shall have the meaning set forth in
the recitals.
(h) "Xx. Xxxxxx" shall have the meaning set forth in
the recitals.
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(i) "Non-Recourse Note" shall have the meaning set
forth in the recitals.
(j) "Parties" shall have the meaning set forth in the
recitals.
(k) "Person" shall mean an individual, partnership,
corporation, limited liability entity, trust or unincorporated
organization, or a government agency or political subdivision thereof.
(l) "Prospectus" shall mean the prospectus included
in the Registration Statement, as amended or supplemented by any
prospectus supplement, with respect to the offering of the Shares and
all other amendments, and supplements to the Prospectus, including
post-effective amendments and all material incorporated by reference in
such Prospectus.
(m) "Registration Date" shall mean the date the
Registration Statement is declared effective by the Securities and
Exchange Commission.
(n) "Registration Statement" shall mean the
registration statement to be filed with the Commission under the
Securities Act which covers the Shares pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to
such Registration Statement, including post-effective amendments, all
exhibits and all material incorporated by reference in such
Registration Statement.
(o) "Securities Act" shall mean the Securities Act of
1933, as amended from time to time, including the rules and regulations
of the Commission thereunder.
(p) "Security Agreement" shall mean have the meaning
set forth in the recitals.
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(q) "Settlement Agreement" shall mean the meaning set
forth in the recitals.
(r) "Shares" shall mean the 610,000 Common Shares
that Xx. Xxxxxx shall cause to be delivered to Xx. Xxxxxx and the
500,000 Common Shares to be deposited in escrow as collateral for
Non-Recourse Note pursuant to this Agreement and the Settlement
Agreement.
(s) "ZNC" shall mean Zeldes, Needle & Xxxxxx, A
Professional Corporation.
The capitalized terms used in this Agreement and not
defined herein shall have the meanings set forth in
the Settlement Agreement.
SECTION 2. Deliverance and Acceptance of the Shares. Upon an
entry of the Final Order Xx. Xxxxxx agrees to cause the following to be
delivered to Xx. Xxxxxx: (1) 275,000 Common Shares to be issued by IARC, (2)
335,000 of his personal Common Shares, and (3) the Non-Recourse Note. Xx. Xxxxxx
will simultaneously cause 500,000 of his personal Common Shares, which are to
serve as sole collateral for the Non-Recourse Note, to be delivered to ZNC in
escrow. The 335,000 personal Common Shares and the 500,000 personal Common
Shares of Xx. Xxxxxx will be transferred in a transaction exempt from
registration pursuant to the so-called Section 4 (1 1/2) exemption under the
Securities Act and the 275,000 Common Shares to be issued by IARC will be issued
in a transaction exempt from registration pursuant to the Section 4(2) exemption
under the Securities Act. Xx. Xxxxxx and IARC will cause the Shares to be
registered for resale under the Securities Act in accordance with Section 3
below. Xx. Xxxxxx agrees to accept the Shares in accordance with the Settlement
Agreement.
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SECTION 3. Registration.
SECTION 3.1. Registration of the Shares. In accordance with
this Agreement and the Settlement Agreement, (i) Xx. Xxxxxx and IARC will use
their best efforts to effect registration of the Shares under the Securities Act
to permit the resale of the Shares by Xx. Xxxxxx from time to time, in
accordance with the intended method or methods of disposition thereof, and (ii)
IARC will:
(a) prepare and file with the Commission, no later than the
third business day after Xx. Xxxxxx provides the information required by Section
6.2 of this Agreement, or June 12, 2001, whichever is later, the Registration
Statement on Form S-3, or any other appropriate form under the Securities Act,
which form shall be available for the resale of the Shares by Xx. Xxxxxx from
time to time, in accordance with the intended method or methods of distribution
thereof, and use their best efforts to cause the Registration Statement to
become effective as soon as reasonably practicable after the Final Order;
provided that before filing the Registration Statement or Prospectus or any
amendments or supplements thereto, including documents incorporated by reference
after the initial filing of the Registration Statement, IARC and Xx. Xxxxxx will
furnish to Xx. Xxxxxx copies of all such documents proposed to be filed;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement and all reports under
the Exchange Act incorporated by reference therein as may be necessary to keep
the Registration Statement in effect and current for a period of two (2) years
(plus the number of days of any discontinuance pursuant to Section 4 hereof)
from the Registration Date; cause the Prospectus to be supplemented by any
required prospectus supplement; and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act with respect to the
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disposition of all of the Shares during the applicable period in accordance with
the intended methods of disposition by Xx. Xxxxxx thereof set forth in the
Registration Statement or Prospectus;
(c) notify Xx. Xxxxxx (1) when a Prospectus or any prospectus
supplement or post-effective amendment has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when the same has become
effective, (2) of any request by the Commission for amendments or supplements to
the Registration Statement or the Prospectus or for additional information, (3)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation or threatening of any proceeding
for that purpose, (4) of the receipt by IARC of any notification with respect to
the suspension of the qualification of any of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, and (5) of the happening of any event which requires the making of any
changes in the Registration Statement or Prospectus so that such documents will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading; and
(d) furnish to Xx. Xxxxxx without charge, at least one signed
copy of the Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, all documents incorporated therein
by reference and all exhibits (including those incorporated by reference) and
deliver to Xx. Xxxxxx, without charge, as many copies of the Prospectus and any
amendment or supplement thereto as such Persons may reasonably request; IARC
consents to the use of such Prospectus or any amendment or supplement thereto by
Xx. Xxxxxx, in connection with the offering and sale of the Shares, subject to
the provisions of Section 4 hereof.
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IARC may require Xx. Xxxxxx to furnish to IARC such
information regarding the distribution of the Shares as IARC may from time to
time reasonably request in writing.
SECTION 3.2. Blue Sky. Xx. Xxxxxx and IARC will use their best
efforts to register or qualify the Shares for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
Xx. Xxxxxx may reasonably request; use their reasonable efforts to keep each
such registration or qualification effective during the period the Registration
Statement is required to be kept effective; and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Shares; provided that IARC will not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
action which would subject it to general service of process in any such
jurisdiction where it is not then so subject.
SECTION 4. Discontinuance in Certain Events. (a) Upon Xx.
Xxxxxx'x receipt of written notice from IARC of the happening of any event of
the kind described in Sections 3.1(c)(2), 3.1(c)(3), 3.1(c)(4) or 3.1(c)(5)
hereof, Xx. Xxxxxx will forthwith discontinue disposition of the Shares until
Xx. Xxxxxx'x receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3.1(c)(1) hereof, or until Xx. Xxxxxx is advised in
writing by IARC that the use of the applicable Prospectus may be resumed and Xx.
Xxxxxx has received copies of any additional or supplemental filings which are
incorporated by reference in such Prospectus, and, if so directed by IARC, Xx.
Xxxxxx will deliver to IARC all copies, other than permanent file copies then in
Xx. Xxxxxx'x possession, of the Prospectus covering the Shares current at the
time of receipt of such notice.
(b) Upon Xx. Xxxxxx'x receipt of written notice from IARC to
the effect that IARC is engaged in negotiations looking towards its
participation in a material merger,
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acquisition or other form of business combination or any other transaction which
is material to IARC which, based on written advice from its counsel, may require
disclosure for the Shares to be sold pursuant to the Registration Statement in
compliance with law, Xx. Xxxxxx will forthwith discontinue disposition of the
Shares until Xx. Xxxxxx is advised in writing by IARC that such disclosure has
been made or become unnecessary (which advice shall be promptly provided), it
being understood that IARC will in a timely manner make all public disclosure
required by law and the disclosure policies of the NASDAQ National Market System
(the "National Market").
(c) At any time following the expiration of six months from
the Registration Date, IARC shall have the right to require Xx. Xxxxxx to
discontinue disposition of the Shares at any time from and after the date it has
filed a registration statement with the Commission in connection with an
underwritten offering of its Common Stock through and until 15 days after the
closing of such sale, to the extent required by the managing underwriters of
such offering and notified to Xx. Xxxxxx in writing by IARC or such managing
underwriters; provided, however, IARC may utilize such right only once in any
twelve-month period.
(d) If Xx. Xxxxxx is required by any of the events set forth
in paragraphs (a), (b) or (c) of this Section 4 to discontinue disposition of
any amount of the Shares, the two-year period referred to in Section 3.1(b)
shall be extended by the number of days which elapse from the date such
discontinuance is required to the date Xx. Xxxxxx receives notice of the
cessation of such discontinuance.
SECTION 5. Registration Expenses.
SECTION 5.1. Expenses Incurred by Xx. Xxxxxx and IARC. All
expenses of Xx. Xxxxxx and IARC incident to Xx. Xxxxxx and IARC's performance of
or compliance with this Agreement, including all registration and filing fees,
including fees with respect to filings
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required to be made with the National Association of Securities Dealers, fees
and expenses of compliance with securities or blue sky laws, printing expenses,
and fees and disbursements of counsel for IARC and of the independent certified
public accountants of IARC, will be borne by Xx. Xxxxxx and IARC. Xx. Xxxxxx and
IARC will, in addition, pay their internal expenses (including, without
limitation, all salaries and expenses of IARC's officers and employees
performing legal or accounting duties), the expense of any annual or other
audits, the fees and expenses incurred in connection with the listing of the
Shares on any securities exchange on which the Common Stock of IARC is then
listed and the fees and expenses of any Person, including special experts,
retained by Xx. Xxxxxx or IARC.
SECTION 5.2. Expenses Incurred by Xx. Xxxxxx. All expenses
incurred by Xx. Xxxxxx incident to Xx. Xxxxxx'x performance or compliance with
this Agreement shall be borne by Xx. Xxxxxx, and Xx. Xxxxxx and IARC shall have
no liability or obligation with respect thereto.
SECTION 6. Indemnification.
SECTION 6.1. Indemnification by Xx. Xxxxxx and IARC. Xx.
Xxxxxx and IARC, jointly and severally, agree to indemnify and hold harmless, to
the full extent permitted by law, Xx. Xxxxxx against all losses, claims, damages
and liabilities, and to reimburse such indemnified party for any legal or other
expenses as and when incurred in connection with investigating or defending
against any such losses, claims, damages or liabilities, caused by any untrue or
alleged untrue statement of a material fact contained in the Registration
Statement, Prospectus or preliminary prospectus, or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are contained in any information furnished in writing for inclusion in the
Registration Statement to Xx. Xxxxxx and IARC by Xx. Xxxxxx.
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SECTION 6.2. Indemnification by Xx. Xxxxxx. Xx. Xxxxxx will
furnish to IARC and Xx. Xxxxxx in writing such information as Xx. Xxxxxx and
IARC reasonably request for use in connection with the Registration Statement or
Prospectus and Mr. Fishers agrees to indemnify, to the fullest extent permitted
by law, Xx. Xxxxxx and IARC, IARC's directors and officers and each Person who
controls IARC (within the meaning of the Securities Act) against any losses,
claims, damages and liabilities, and to reimburse for any legal or other
expenses incurred in connection with investigating or defending against any such
losses, claims, damages or liabilities, caused by any untrue or alleged untrue
statement of a material fact required to be stated in the Registration Statement
or Prospectus or preliminary prospectus, or necessary to make the statements
therein not misleading, to the extent that such untrue statement or omission is
contained in any information so furnished in writing by Xx. Xxxxxx to IARC for
inclusion in the Registration Statement or Prospectus. In no event shall the
liability of Xx. Xxxxxx hereunder be greater in amount than the aggregate dollar
amount of the proceeds received by Xx. Xxxxxx upon the sale of the Shares giving
rise to such indemnification obligation.
SECTION 6.3. Delivery of Prospectus. The indemnity provisions
in Sections 6.1 and 6.2 above are subject to the condition that, insofar as they
relate to any untrue statement (or alleged untrue statement) or omission (or
alleged omission) made in a preliminary prospectus, but eliminated or remedied
in the amended Prospectus on file with the Commission at the time the
Registration Statement becomes effective, such indemnity provisions shall not
inure to the benefit of any Person selling the Shares if IARC has previously
delivered copies of such Prospectus to such Person and if a copy of the
Prospectus was not furnished to the Person or entity asserting the loss,
liability, claim or damage at or prior to the time such action is required by
the Securities Act.
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SECTION 6.4. Conduct of Indemnification Proceedings. Any
Person entitled to indemnification hereunder will (1) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (2) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party, provided, however,
that any Person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such Person unless
(a) the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such Person or (c) in the reasonable
judgment of any such Person and the indemnifying party, based upon advice of
their respective counsel, a conflict of interest may exist between such Person
and the indemnifying party with respect to such claims (in which case, if the
Person notifies the indemnifying party in writing that such Person elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
on behalf of such Person). If such defense is not assumed by the indemnifying
party, the indemnifying party will not be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably
withheld). No indemnifying party will 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 to such claim or litigation. An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim, will
not be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party, a conflict
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of interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim, in which event, the indemnifying
party shall be obligated to pay the fees and expenses of such additional counsel
or counsels.
SECTION 7. Representations and Warranties.
SECTION 7.1. Representations and Warranties of IARC and Xx.
Xxxxxx. IARC represents and warrants, and agrees with Xx. Xxxxxx that:
(a) On the Registration Date, when any amendment thereto
becomes effective (including the filing of any document incorporated by
reference in the Registration Statement), when any supplement to the Prospectus
is filed with the Commission and at all times when the Prospectus may be
delivered in connection with sales of the Shares by Xx. Xxxxxx, (1) the
Registration Statement and the Prospectus will comply in all material respects
with the applicable requirements of the Securities Act and the Exchange Act and
(2) neither the Registration Statement nor the Prospectus will contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading; provided, however, that IARC makes no representation or warranties
as to the information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with information furnished in
writing to IARC by the Xx. Xxxxxx specifically for use in connection with the
preparation of the Registration Statement and the Prospectus;
(b) The documents to be incorporated by reference in the
Registration Statement, the Prospectus, any amendment or supplement thereto or
any preliminary prospectus, when they become effective under the Securities Act
or were or are filed with the Commission
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under the Exchange Act, as the case may be, conform or will conform in all
material respects with the requirements of the Securities Act or the Exchange
Act, as applicable;
(c) The financial statements of IARC to be set forth or
incorporated by reference in the Registration Statement and Prospectus at any
time will fairly present the financial condition of IARC as of the dates
indicated and the results of operations and changes in financial position for
the periods therein specified in conformity with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise stated therein);
(d) IARC has been duly incorporated and is an existing
corporation in good standing under the laws of its jurisdiction of
incorporation, has full power and authority (corporate and other) to conduct its
business as described in the Registration Statement and Prospectus and is duly
qualified to do business in each jurisdiction in which it owns or leases real
property or in which the conduct of its business requires such qualification
except where the failure to be so qualified, considering all such cases in the
aggregate, does not involve a material risk to the business, properties,
financial position or results of operations of IARC; and all of the outstanding
shares of capital stock of each such subsidiary have been duly authorized and
validly issued, are fully paid and non-assessable and (except as otherwise
stated in the Registration Statement) are owned beneficially by IARC subject to
no security interest, other encumbrance or adverse claim;
(e) The outstanding shares of Common Stock of IARC and the
Shares have been duly authorized and are, or when issued as contemplated hereby
will be, validly issued, fully paid and non-assessable and conform, or when so
issued will conform, to the description thereof in the Prospectus;
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(f) Except as shall be set forth in the Prospectus, there is
not pending or, to the knowledge of Xx. Xxxxxx or IARC, threatened any action,
suit or proceeding to which IARC is a party, before or by any court or
governmental agency or body, that might result in any material adverse change in
the condition (financial or other), business, prospects, net worth or results of
operations of IARC, or might materially and adversely affect the properties or
assets thereof;
(g) All contracts or documents of IARC that are required to be
filed as exhibits to the Registration Statement or to any of the documents
incorporated by reference therein by the Securities Act or the Exchange Act or
by the rules and regulations of the Commission thereunder will be so filed;
(h) The performance of this Agreement and the consummation of
the transactions herein contemplated will not result in a breach or violation of
any of the terms and provisions of, or constitute a default under, any statute,
any agreement or instrument to which Xx. Xxxxxx or IARC is a party or by which
either is bound or to which any of the property of Xx. Xxxxxx or IARC is
subject, IARC's charter or by-laws, or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over IARC or any of its
properties; no consent, approval, authorization or order of, or filing with, any
court of governmental agency or body is required for the consummation of the
transactions contemplated by this Agreement in connection with the issuance or
transfer of the Shares, except such as may be required under the Securities Act
or state securities laws; and Xx. Xxxxxx and IARC have full power and authority
to authorize, issue and transfer the Shares as contemplated by this Agreement,
free of any preemptive rights;
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(i) Xx. Xxxxxx and IARC have not individually or collectively
undertaken to advertise, generally solicit, sell or transfer the Shares to the
public and have not participated in any action, with respect to the Shares
constituting a public offering.
(j) Xx. Xxxxxx represents that he has title to the 335,000
Common Shares to be transferred to Xx. Xxxxxx, and the 500,000 Common Shares to
be delivered to ZNC in escrow as sole collateral for the Non-Recourse Note, free
and clear of all liens and encumbrances.
(k) IARC agrees to:
(i) cause public information with respect to
IARC to be available, as set forth in Rule
144 or any comparable rule or regulation
under the Securities Act, at all times;
(ii) use its best efforts to file with the
Commission in a timely manner all reports
and other documents required of IARC under
the Securities Act and the Exchange Act; and
(iii) furnish to Xx. Xxxxxx forthwith upon request
a written statement by IARC as to its
compliance with the Current Public
Information condition of Rule 144(c) and
under the Securities Act.
SECTION 7.2. Representations and Warranties By Xx. Xxxxxx.
Xx. Xxxxxx understands that the Shares initially issued and
transferred are not registered under the Securities Act. Xx. Xxxxxx also
understands that the 335,000 personal Common Shares and the 500,000 personal
Common Shares of Xx. Xxxxxx in IARC are being transferred in a transaction
exempt from registration pursuant to the so-called Section 4(1 1/2) exemption
under the Securities Act. Xx. Xxxxxx also understands that the 275,000 Common
Shares to be issued by IARC will be issued in a transaction exempt from
registration pursuant to the Section 4(2) exemption under the Securities Act.
Furthermore, Xx. Xxxxxx understands that the Shares are not registered under any
state securities laws and are sold in reliance upon the exemptions from
registration provided under such laws. Xx. Xxxxxx makes the following
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agreements, representations and warranties with the intent that the same may be
relied upon by Xx. Xxxxxx and IARC in determining his suitability as a receiver
of the Shares:
(a) The Shares are unregistered and are restricted and will
not be freely alienable and transferable until the Registration Statement
becomes effective;
(b) Xx. Xxxxxx and IARC have made available to Xx. Xxxxxx all
documents and information that Xx. Xxxxxx has requested relating to an
investment in IARC, have afforded Xx. Xxxxxx the opportunity to discuss this
investment with and to ask questions of Xx. Xxxxxx or representatives of IARC
concerning the terms and conditions of the offering of the Shares, and have
provided answers to all such questions concerning such offering. Xx. Xxxxxx has
examined or has had the opportunity to examine before the date hereof all
information that he deems to be material to an understanding of IARC, the
business of IARC and the offering of the Shares, and has had the opportunity to
obtain any additional information that is necessary to verify the accuracy of
all information made available to Xx. Xxxxxx by Xx. Xxxxxx and IARC;
(c) Xx. Xxxxxx acknowledges that the Shares will be acquired
solely by and for his own account (with no other person having any beneficial
interest in the Shares), and are not being purchased for resale or distribution,
except as permitted under the Securities Act; Xx. Xxxxxx has no contract,
undertaking, agreement or arrangement with any person to sell, transfer or
pledge to such person or anyone else the Shares (or any interest therein) being
issued or transferred, as the case may be, pursuant to the Settlement Agreement,
or any part thereof; the financial condition of Xx. Xxxxxx is such that he has
no need for liquidity with respect to his investment in the Shares and no
present or foreseeable need to dispose of any portion of the Shares to satisfy
any existing or contemplated undertaking or indebtedness; and the overall
commitment by Xx. Xxxxxx to various investments which are not readily marketable
is not
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disproportionate to his net worth and will not become excessive as a result of
his investment in the Shares;
(d) Xx. Xxxxxx has such knowledge and experience in financial,
investment and business matters that he is capable of evaluating the merits and
risks of any investment in the Shares;
(e) Xx. Xxxxxx has a current net worth such that he is able to
bear the economic risk of his investment in the Shares for an indefinite period
of time, and the loss of his entire investment in the Shares would not
materially adversely affect Xx. Xxxxxx;
(f) Xx. Xxxxxx expressly acknowledges that:
(i) He is not dependent upon a current return
with respect to his investment in the
Shares,
(ii) Neither Xx. Xxxxxx, IARC, nor any other
person acting on behalf of IARC offered to
sell to Xx. Xxxxxx any Shares by means of
any form of general solicitation or
advertising, such as media advertising;
(g) Xx. Xxxxxx acknowledges that the certificates of the
Shares will contain a restrictive legend which restricts the sale of the Shares
unless the Shares have been registered with the Commission or an exemption to
the Securities Act applies;
(h) Xx. Xxxxxx understands that IARC will give stop transfer
instructions to the appropriate transfer agent of the Shares, until such time as
the shares have been registered or an applicable exemption to the Securities Act
applies;
SECTION 8. Termination. In the event the settlement is
terminated pursuant to Paragraph 5 and/or Paragraph 26 of the Settlement
Agreement, then this Agreement shall terminate without any liability of any
Party.
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SECTION 9. Communications. All notices or communications
provided for herein shall be delivered, mailed first class, or telexed or
telecopied and confirmed in writing in accordance with the information set forth
below:
(a) As to IARC:
Information Architects Corporation
Attn: Chief Executive Officer
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
facsimile: 000-000-0000
with a copy to:
Xxxxx X. Xxxxxxxxx, Xx., Esq.
Zeldes, Needle & Xxxxxx
0000 Xxxxxxxxx Xxxxxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
facsimile: 203-333-1489
(b) As to Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Chief Executive Officer
Information Architects Corporation
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
facsimile: 000-000-0000
with a copy to:
Xxxxx X. Xxxxxxxxx, Xx., Esq.
Zeldes, Needle & Xxxxxx
0000 Xxxxxxxxx Xxxxxxxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
facsimile: 203-333-1489
(c) As to Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
c/o Xxxx X. Xxxxxx, Esq.
Xxxx X. Xxxxxx P.C.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
facsimile: 000-000-0000
with a copy to:
Xxxxxx X. Xxxxxxxxxx
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000-0000
facsimile: 000-000-0000
SECTION 10. Miscellaneous.
SECTION 10.1. Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Connecticut. Any
disputes arising under this Agreement shall be resolved by binding arbitration
pursuant to Paragraph 19 of the Settlement Agreement.
SECTION 10.2. Successors and Assigns. All terms and provisions
of this Agreement (including all covenants, conditions, agreements,
representations and warranties) shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
SECTION 10.3. No Oral Change. This Agreement may not be
changed orally, but only by an agreement in writing and signed by the party
against whom enforcement of any waiver, change, modification or discharge is
sought. The headings of the various sections hereof are for convenience only and
shall not affect the meaning hereof.
SECTION 10.4. Counterparts Clause. This Agreement may be
executed in counterparts, all of which taken together shall constitute one and
the same instrument and shall
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be effective when counterparts have been signed by each party and delivered to
the other parties hereto.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement
to be signed as of the first date written above.
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Xxxxxx X. Xxxxxx
INFORMATION ARCHITECTS CORPORATION
By:
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Name:
---------------------------------
Title:
--------------------------------
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Xxxx X. Xxxxxx
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