EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of August
10, 2005, by and between Recall Mail Corporation, a corporation incorporated and
organized under the laws of State of Delaware, with its principal executive
offices at 0000 Xxxxx 00, Xxxxx 000, Xxx Xxxx, Xxx Xxxxxx 00000 (the "Company"),
and AJW Qualified Partners, LLC, residing at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000,
Xxxxxx, Xxx Xxxxxx 00000 (the "Holder").
WHEREAS, in connection with the Holder's investment in the Company, the
Company has agreed to provide the Holder with certain registration rights under
the Securities Act of 1933, as amended, and the rules and regulations
thereunder, or any similar successor statute (collectively, the "1933 Act"), and
applicable state securities laws, with respect to the shares of the Company's
common stock, par value $.0001 per share ("Common Stock"), held by the Holder as
of the date hereof;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Holder hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
meanings provided next to such terms:
(a) "Person" means a corporation, a limited liability company, an
association, a partnership, an organization, a business, an individual, a
governmental or political subdivision or a governmental agency.
(b) "Principal Market" means The American Stock Exchange, Inc., The New
York Stock Exchange, Inc., The Nasdaq National Market, The Nasdaq SmallCap
Market or the National Association of Securities Dealer's, Inc. OTC electronic
bulletin board, whichever is the principal market on which the Common Stock is
traded.
(c) "Registrable Securities" means the shares of Common Stock held by the
Holder on the date of this Agreement and any shares of capital stock issued or
issuable with respect to such shares of Common Stock, if any, as a result of any
stock split, stock dividend, recapitalization, exchange or similar event or
otherwise, which have not been (i) included in a registration statement that has
been declared effective by the Securities and Exchange Commission (the "SEC"),
or (ii) sold under circumstances meeting all of the applicable conditions of
Rule 144 (or any similar provision then in force) under the 1933 Act.
2. Registration on Form SB-2 or other Registration Form. The Company shall, as
soon as practicable, but not later than September 30, 2005, file with the SEC a
registration statement on Form SB-2 or other available form of registration
statement (the "Registration Statement"), covering the sale of all of the
Registrable Securities, which Registration Statement shall state that, in
accordance with Rule 416 promulgated under the 1933 Act, such Registration
Statement also covers such indeterminate number of additional shares of Common
Stock as may become issuable upon stock splits, stock dividends or similar
transactions. The Company shall use commercially reasonable efforts to have the
Registration Statement declared effective by the SEC within ninety (90) calendar
days after the date such Registration Statement is initially filed with the SEC.
3. Related Obligations. The Company shall have the following further
obligations:
(a) Continued Effectiveness. The Company shall keep the Registration
Statement effective pursuant to Rule 415 promulgated under the 1933 Act until
the earlier of (i) one year from the date the Registration Statement becomes
effective and (ii) the date on which the Holder shall have sold all the
Registrable Securities (the "Registration Period"), which Registration Statement
(including any amendments or supplements thereto and prospectuses contained
therein) shall 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 in which they were made, not
misleading.
(b) Amendments. The Company shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary to keep such Registration Statement
effective during the Registration Period, and, during such period, comply with
the provisions of the 1933 Act with respect to the disposition of the
Registrable Securities of the Company covered by the Registration Statement.
(c) Information. The Company shall furnish to the Holder and his legal
counsel without charge: (i) at least one copy of the Registration Statement and
any amendment(s) thereto promptly after the Registration Statement or any
amendment thereto is filed with the SEC and, with regard to the Registration
Statement, any correspondence by or on behalf of the Company to the SEC or the
staff of the SEC and any correspondence from the SEC or the staff of the SEC to
the Company or its representatives promptly after issued or received by the
Company or its representatives, (ii) a reasonable number of copies of the
prospectus included in such Registration Statement and all amendments and
supplements thereto promptly after the effectiveness of the Registration
Statement, and (iii) such other documents as the Holder may reasonably request,
in writing, from time to time in order to facilitate the disposition of the
Registrable Securities.
(d) Blue Sky. The Company shall use reasonable efforts to (i) register and
qualify the Registrable Securities covered by the Registration Statement under
the applicable securities or "blue sky" laws of such states of the United States
as specified by the Holder, (ii) prepare and file in those jurisdictions, such
amendments (including post-effective amendments) and supplements to such
registrations and qualifications as may be necessary to maintain the
effectiveness thereof during the Registration Period, (iii) take such other
actions as may be necessary to maintain such registrations and qualifications in
effect at all times during the Registration Period, and (iv) take all other
actions reasonably necessary or advisable to qualify
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the Registrable Securities for sale in such jurisdictions; provided, however,
that the Company shall not be required in connection therewith or as a condition
thereto to (A) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (B) subject itself
to general taxation in any such jurisdiction, or (C) file a general consent to
service of process in any such jurisdiction. The Company shall promptly notify
the Holder of the receipt by the Company of any notification with respect to the
suspension of the registration or qualification of any of the Registrable
Securities for sale under the securities or "blue sky" laws of any jurisdiction
in the United States or its receipt of actual notice of the initiation or
threatening of any proceeding for such purpose.
(e) Certain Events. As promptly as practicable after becoming aware of
such event, the Company shall (i) notify the Holder in writing of the happening
of any event as a result of which the prospectus included in the Registration
Statement includes an untrue statement of a material fact or omission 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 ("Registration Default"), (ii) use all diligent efforts to promptly
prepare a supplement or amendment to the Registration Statement and take any
other necessary steps to cure the Registration Default, and (iii) deliver a
reasonable number of copies of such supplement or amendment to the Holder. The
Company shall also promptly notify the Holder in writing (A) when a prospectus
or any prospectus supplement or post-effective amendment has been filed, and
when the Registration Statement or any post-effective amendment has become
effective (notification of such effectiveness shall be delivered to the Holder
by facsimile on the same day of such effectiveness and by overnight mail), (B)
of any request by the SEC for amendments or supplements to the Registration
Statement or related prospectus or related information, (C) of the Company's
reasonable determination that a post-effective amendment to a Registration
Statement would be appropriate, (D) in the event the Registration Statement is
no longer effective, or (E) the Registration Statement is stale for a period of
more than five (5) trading days as a result of the Company's failure to timely
file its financials.
(f) Stop Orders. The Company shall use its best efforts to prevent the
issuance of any stop order or other suspension of effectiveness of the
Registration Statement, or the suspension of the qualification of any of the
Registrable Securities for sale in any jurisdiction and, if such an order or
suspension is issued, to obtain the withdrawal of such order or suspension at
the earliest possible moment and to notify the Holder who holds Registrable
Securities being sold of the issuance of such order and the resolution thereof
or its receipt of actual notice of the initiation or threat of any proceeding
for such purpose.
(g) Review and Comment. The Company shall permit the Holder and a single
firm of counsel, as designated by him, to review and comment upon the
Registration Statement and all amendments and supplements thereto at least three
(3) business days prior to the filing thereof with the SEC, and not file any
document in a form to which such counsel reasonably objects. The Company shall
not submit to the SEC a request for acceleration of the effectiveness of the
Registration Statement or file with the SEC the Registration Statement or any
amendment or supplement thereto without the prior approval of such counsel,
which approval shall not be unreasonably withheld.
(h) Availability of Information. The Company shall make available for
inspection by (i) the Holder and (ii) one firm of attorneys and one firm of
accountants or other agents retained by the Holder (collectively, the
"Inspectors"), all pertinent financial and other records,
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and pertinent corporate documents and properties of the Company (collectively,
the "Records" and individually a "Record"), as shall be reasonably deemed
necessary by each Inspector, and cause the Company's officers, directors and
employees to supply all information which any Inspector may reasonably request;
provided, however, that each Inspector shall hold in strict confidence and shall
not make any disclosure (except to the Holder) or use of any Record or other
information which the Company determines in good faith to be confidential, and
of which determination the Inspectors are so notified, unless (A) the disclosure
of such Records is necessary to avoid or correct a misstatement or omission in
the Registration Statement or is otherwise required under the 1933 Act, (B) the
release of such Records is ordered pursuant to a final, non-appealable subpoena
or order from a court or government body of competent jurisdiction, or (C) the
information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement of which
the Inspector has knowledge. The Holder agrees that he shall, upon learning that
disclosure of such Records is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to the Company
and allow the Company, at its expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, the Records deemed
confidential.
(i) Confidentiality. The Company shall hold in confidence and not make any
disclosure of information concerning the Holder provided to the Company unless
(i) disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in the Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other final,
non-appealable order from a court or governmental body of competent
jurisdiction, or (iv) such information has been made generally available to the
public other than by disclosure in violation of this Agreement or any other
agreement. The Company agrees that it shall, upon learning that disclosure of
such information concerning the Holder is sought in or by a court or
governmental body of competent jurisdiction or through other means, give prompt
written notice to the Holder and allow the Holder, at the Holder's expense, to
undertake appropriate action to prevent disclosure of, or to obtain a protective
order for, such information.
(j) Listing or Quotation. The Company shall use its best efforts to secure
designation and quotation of all the Registrable Securities covered by the
Registration Statement on the Principal Market. If, despite the Company's best
efforts, the Company is unsuccessful in satisfying the preceding sentence, it
shall use its best efforts to cause all the Registrable Securities covered by
the Registration Statement to be listed on each other national securities
exchange and automated quotation system, if any, on which securities of the same
class or series 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 system. If, despite the Company's best efforts, the Company is unsuccessful
in satisfying the two preceding sentences, it will use its best efforts to
secure the inclusion for quotation with Pink Sheets, LLC. The Company shall pay
all fees and expenses in connection with satisfying its obligation under this
Section 3(j).
(k) Amendment of Registration Statement. If requested by the Holder, the
Company shall (i) as soon as reasonably practical incorporate in a prospectus
supplement or post-effective amendment such information as the Holder reasonably
determines should be included therein relating to the sale and distribution of
Registrable Securities, including, without limitation, information with respect
to the offering of the Registrable Securities to be sold in such offering, (ii)
make all required filings of such prospectus supplement or post-effective
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amendment as soon as notified of the matters to be incorporated in such
prospectus supplement or post-effective amendment, and (iii) supplement or make
amendments to the Registration Statement if reasonably requested by the Holder.
(l) Other Approvals. The Company shall use its best efforts to cause the
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to consummate the disposition of such Registrable Securities.
(m) Certain Financial Statements. The Company shall make generally
available to its security holders as soon as reasonably practical, but not later
than ninety (90) calendar days after the close of the period covered thereby, an
earnings statement (in form complying with the provisions of Rule 158
promulgated under the 0000 Xxx) covering a twelve-month period beginning not
later than the first day of the Company's fiscal quarter next following the
effective date of the Registration Statement.
(n) Compliance with SEC Regulations. The Company shall otherwise use its
best efforts to comply with all applicable rules and regulations of the SEC in
connection with any registration hereunder.
(o) Other Actions. The Company shall take all other reasonable actions
necessary to expedite and facilitate disposition by the Holder of Registrable
Securities pursuant to the Registration Statement.
4. Obligations of the Holder.
(a) Required Information. At least five (5) calendar days prior to the
first anticipated filing date of the Registration Statement, the Company shall
notify the Holder in writing of the information the Company requires from the
Holder if the Holder elects to have any of the Holder's Registrable Securities
included in such Registration Statement. It shall be a condition precedent to
the obligations of the Company to complete the registration pursuant to this
Agreement with respect to the Registrable Securities of the Holder that the
Holder shall furnish in writing to the Company such information regarding
himself, the Registrable Securities held by him and the intended method of
disposition of the Registrable Securities held by him as shall reasonably be
required to effect the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Company may
reasonably request. The Holder covenants and agrees that, in connection with any
resale of Registrable Securities by him pursuant to the Registration Statement,
he shall comply with the "Plan of Distribution" section of the current
prospectus relating to the Registration Statement.
(b) Further Cooperation. The Holder shall cooperate with the Company as
reasonably requested by the Company in connection with the preparation and
filing of the Registration Statement, unless the Holder has notified the Company
in writing of the Holder's election to exclude all of the Holder's Registrable
Securities from such Registration Statement.
(c) Discontinuance of Disposition in Certain Events. Upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 3(f) or the first sentence of 3(e), the Holder will immediately
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities until the Holder's
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receipt of the copies of the supplemented or amended prospectus contemplated by
Section 3(f) or the first sentence of 3(e).
5. Expenses of Registration. All reasonable expenses, other than underwriting
discounts and commissions, incurred in connection with registrations, filings or
qualifications pursuant to Sections 2 and 3, including, without limitation, all
registration, listing and qualifications fees, printing and accounting fees, and
fees and disbursements of counsel for the Company, shall be paid by the Company.
6. Indemnification. In the event any Registrable Securities are included in the
Registration Statement under this Agreement:
(a) Indemnification by Company. To the fullest extent permitted by law,
the Company will, and hereby does, indemnify, hold harmless and defend the
Holder and any agents or representatives thereof, and each Person, if any, who
controls the Holder within the meaning of the 1933 Act or the Securities
Exchange Act of 1934, as amended (the "1934 Act") (each, an "Indemnified
Person"), against any losses, claims, damages, liabilities, judgments, fines,
penalties, charges, costs, attorneys' fees, amounts paid in settlement or
expenses, joint or several (collectively, "Claims"), incurred in investigating,
preparing or defending any action, claim, suit, inquiry, proceeding,
investigation or appeal taken from the foregoing by or before any court or
governmental, administrative or other regulatory agency, body or the SEC,
whether pending or threatened, whether or not the Indemnified Person is or may
be a party thereto ("Indemnified Damages"), to which the Indemnified Person may
become subject insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon: (i)
any untrue statement or alleged untrue statement of a material fact in the
Registration Statement or any post-effective amendment thereto or in any filing
made in connection with the qualification of the offering under the securities
or other "blue sky" laws of any jurisdiction in which Registrable Securities are
offered, or the omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which the statements therein were made, not misleading,
(ii) any untrue statement or alleged untrue statement of a material fact
contained in the final prospectus (as amended or supplemented, if the Company
files any amendment thereof or supplement thereto with the SEC) or the omission
or alleged omission to state therein any material fact necessary to make the
statements made therein, in light of the circumstances under which the
statements therein were made, not misleading, or (iii) any violation or alleged
violation by the Company of the 1933 Act, the 1934 Act, any other law,
including, without limitation, any state securities law, or any rule or
regulation thereunder relating to the offer or sale of the Registrable
Securities pursuant to the Registration Statement (the matters in the foregoing
clauses (i) through (iii) being, collectively, "Violations"). Subject to the
restrictions set forth in Section 6(c) with respect to the number of legal
counsel, the Company shall reimburse the Indemnified Person, promptly as such
expenses are incurred and are due and payable, for any reasonable legal fees or
other reasonable expenses incurred by him, her or it in connection with
investigating or defending any such Claim. Notwithstanding anything to the
contrary contained herein, the indemnification agreement contained in this
Section 6(a): (A) shall not apply to a Claim arising out of or based upon a
Violation which occurs in reliance upon and in conformity with information
furnished in writing to the Company by any Indemnified Person expressly for use
in connection with the preparation of the Registration Statement or any such
amendment thereof or supplement thereto; (B) shall not be available to the
extent such Claim is based on (I) a failure of the Holder to deliver or to cause
to be delivered the prospectus
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made available by the Company or (II) the Indemnified Person's use of an
incorrect prospectus despite being promptly advised in advance by the Company in
writing not to use such incorrect prospectus; and (C) shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the prior
written consent of the Company, which consent shall not be unreasonably
withheld. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall survive
the resale of the Registrable Securities by the Holder pursuant to the
Registration Statement.
(b) Indemnification by Holder. In connection with the Registration
Statement in which the Holder is participating, the Holder agrees to indemnify,
hold harmless and defend, to the same extent and in the same manner as is set
forth in Section 6(a), the Company, each of its directors, each of its officers
who signs the Registration Statement, each Person, if any, who controls the
Company within the meaning of the 1933 Act or the 1934 Act (each an "Indemnified
Party"), against any Claim or Indemnified Damages to which any of them may
become subject, under the 1933 Act, the 1934 Act or otherwise, insofar as such
Claim or Indemnified Damages arise out of or are based upon any Violation, in
each case to the extent, and only to the extent, that such Violation occurs in
reliance upon and in conformity with written information furnished to the
Company by the Holder or his agents or representatives expressly for use in
connection with the Registration Statement; and, subject to Section 6(c), the
Holder will reimburse any legal or other expenses reasonably incurred by any
Indemnified Party in connection with investigating or defending any such Claim;
provided, however, that the indemnity agreement contained in this Section 6(b)
and the agreement with respect to contribution contained in Section 7 shall not
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Holder, which consent shall not be
unreasonably withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Party
and shall survive the resale of the Registrable Securities by the Holder
pursuant to the Registration Statement. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 6(b)
with respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact contained
in the preliminary prospectus were corrected on a timely basis in the
prospectus, as then amended or supplemented.
(c) Indemnification Procedure. Promptly after receipt by an Indemnified
Person or Indemnified Party under this Section 6 of notice of the commencement
of any action or proceeding (including any governmental action or proceeding)
involving a Claim, such Indemnified Person or Indemnified Party shall, if a
Claim in respect thereof is to be made against any indemnifying party under this
Section 6, deliver to the indemnifying party a written notice of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying party and
the Indemnified Person or the Indemnified Party, as the case may be; provided,
however, that an Indemnified Person or Indemnified Party shall have the right to
retain his own counsel with the fees and expenses to be paid by the indemnifying
party, if, in the reasonable opinion of counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person or
Indemnified Party and the indemnifying party would be inappropriate due to
actual or potential differing interests between such Indemnified Person or
Indemnified Party and any other party represented by such counsel in such
proceeding. The indemnifying party shall pay for only one separate legal counsel
for the Indemnified Persons or the Indemnified Parties, as applicable, and such
counsel shall be selected by the Holder if the
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Holder is entitled to indemnification hereunder, or the Company, if the Company
is entitled to indemnification hereunder, as applicable. The Indemnified Party
or Indemnified Person shall cooperate fully with the indemnifying party in
connection with any negotiation or defense of any such action or Claim by the
indemnifying party and shall furnish to the indemnifying party all information
reasonably available to the Indemnified Party or Indemnified Person which
relates to such action or claim. The indemnifying party shall keep the
Indemnified Party or Indemnified Person fully appraised at all times as to the
status of the defense or any settlement negotiations with respect thereto. No
indemnifying party shall be liable for any settlement of any action, claim or
proceeding effected without his written consent, provided, however, that the
indemnifying party shall not unreasonably withhold, delay or condition his
consent. No indemnifying party shall, without the consent of the Indemnified
Party or Indemnified Person, consent to entry of any judgment or enter into any
settlement or other compromise which does not include as an unconditional term
thereof the giving by the claimant or plaintiff to such Indemnified Party or
Indemnified Person of a release from all liability in respect to such Claim.
Following indemnification as provided for hereunder, the indemnifying party
shall be surrogated to all rights of the Indemnified Party or Indemnified Person
with respect to all third parties, firms or corporations relating to the matter
for which indemnification has been made. The failure to deliver written notice
to the indemnifying party within a reasonable time of the commencement of any
such action shall not relieve such indemnifying party of any liability to the
Indemnified Person or Indemnified Party under this Section 6, except to the
extent that the indemnifying party is prejudiced in his, her or its ability to
defend such action.
(d) Payment of Indemnification. The indemnification required by this
Section 6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
Indemnified Damages are incurred.
(e) Non-exclusivity. The indemnity agreements contained herein shall be in
addition to (i) any cause of action or similar right of the Indemnified Party or
Indemnified Person against the indemnifying party or others, and (ii) any
liabilities the indemnifying party may be subject to pursuant to the law.
7. Contribution. To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which he, she or it would otherwise
be liable under Section 6 to the fullest extent permitted by law; provided,
however, that: (a) no contribution shall be made under circumstances where the
maker would not have been liable for indemnification under the fault standards
set forth in Section 6; (b) no seller of Registrable Securities guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the 0000
Xxx) shall be entitled to contribution from any seller of Registrable Securities
who was not guilty of fraudulent misrepresentation; and (iii) contribution by
any seller of Registrable Securities shall be limited in amount to the net
amount of proceeds received by such seller from the sale of such Registrable
Securities.
8. Reports Under the 1934 Act. With a view to making available to the Holder the
benefits of Rule 144 promulgated under the 1933 Act or any other similar rule or
regulation of the SEC that may at any time permit the Holder to sell securities
of the Company to the public without registration ("Rule 144"), the Company
shall:
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(a) make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) file with the SEC in a timely manner all reports and other documents
required of the Company under the 1933 Act and the 1934 Act so long as the
Company remains subject to such requirements and the filing of such reports and
other documents is required for the applicable provisions of Rule 144; and
(c) furnish to the Holder, promptly upon request, (i) a written statement
by the Company that it has complied with the reporting requirements of Rule 144,
the 1933 Act and the 1934 Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed by
the Company, and (iii) such other information as may be reasonably requested to
permit the Holder to sell such securities pursuant to Rule 144 without
registration.
9. No Assignment of Registration Rights. The rights under this Agreement shall
not be assignable.
10. Amendment of Registration Rights. Provisions of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Holder. Any amendment or waiver effected
in accordance with this Section 10 shall be binding upon the Holder and the
Company. No consideration shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of any of this Agreement
unless the same consideration also is offered to all of the parties to this
Agreement.
11. Miscellaneous.
(a) Waivers and Communications. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered (i) upon
receipt, when delivered personally; (ii) upon receipt, when sent by facsimile
(provided a confirmation of transmission is mechanically or electronically
generated and kept on file by the sending party); (iii) one (1) day after
deposit with a nationally recognized overnight delivery service; or (iv) five
(5) days after being deposited in the United States mail, with postage prepaid
thereon, in each case properly addressed to the party to receive such
communication. The addresses and facsimile numbers for such communications shall
be:
If to the Company:
Recall Mail Corporation
0000 Xxxxx 00, Xxxxx 000
Xxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxxx, President and Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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If to the Holder:
AJW Qualified Partners, LLC
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Ribosky
Each party shall provide five (5) days prior notice to the other party of
any change in address, phone number or facsimile number.
(b) Non-waiver. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
(c) Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New Jersey without regard to the
principles of conflict of laws. Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts sitting in the State
of New Jersey, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that he is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue of such suit, action or proceeding is
improper. Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to him
under this Agreement and agrees that such service shall constitute good and
sufficient service of process and notice thereof. Nothing contained herein shall
be deemed to limit in any way any right to serve process in any manner permitted
by law. If any provision of this Agreement shall be invalid or unenforceable in
any jurisdiction, such invalidity or unenforceability shall not affect the
validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this
Agreement in any other jurisdiction.
(d) Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and thereof.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein and therein.
(e) Integration. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Counterparts. This Agreement may be executed in two or more identical
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same agreement. This Agreement, once executed by a party,
may be delivered to the other party hereto by facsimile transmission of a copy
of this Agreement bearing the signature of the party so delivering this
Agreement.
(h) Further Actions. Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and deliver
all such other
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agreements, certificates, instruments and documents, as the other party may
reasonably request in order to carry out the intent and accomplish the purposes
of this Agreement and the consummation of the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the day and year first above written.
Recall Mail Corporation
By: /s/ Xxxxx Xxxxx
----------------------------------------
Name: Xxxxx Xxxxx
Title: President and Chief Executive Officer
Holder
AJW Qualified Partners, LLC
/s/ Xxxxx Ribosky
----------------------------------------
President
(Signature)
Xxxxx Ribosky
----------------------------------------
President
(Print Name)
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