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EXHIBIT 10.9
EXHIBIT D
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered into
this __ day of March, 1998, by and between U.S. OnLine Communications, Inc., a
Delaware corporation (the "Company"), and the individuals listed on ANNEX A
attached hereto (such persons being herein referred to individually as an
"Investor" and collectively, as the "Investors").
W I T N E S S E T H
WHEREAS, pursuant to that certain Confidential Private Placement Memorandum,
dated March 13, 1998, the Company issued Units to the Investors consisting of
13,333.33 shares of common stock, $.001 par value per share (the "Common
Stock"), of the Company and a 15% Senior Subordinated Promissory Note, in
aggregate principal amount of $50,000 (the "Note"), which, subject to the terms
and conditions set forth in the Note, is convertible into Common Stock (the
"Private Placement");
WHEREAS, the Company, as of the date hereof, has no securities, including the
Common Stock, which are registered under the Securities Act of 1933, as amended
(the "Securities Act"); and
WHEREAS, the Company desires to grant, and the Investors desire to receive
certain rights with respect to the registration of Common Stock issued in the
Private Placement or received upon the conversion of the Notes under the
Securities Act.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein and other good and valuable consideration, the
parties hereto hereby agree as follows:
1. Piggy Back Registration Rights.
a. If the Company proposes to register or is required to register any Common
Stock pursuant to the Securities Act on a registration statement on Form S-1,
Form SB-1, Form S-2, Form SB-2 or Form S-3 (the "Offering Registration"), the
Company shall, at the Company's sole expense (other than the fees and
disbursements of counsel for the Participating Investors (as hereinafter
defined) of any Registrable Securities (as hereinafter defined) and the
underwriting discounts, if any, payable in respect of the Registrable Securities
sold by the Participating Investors), register or qualify all or, at the
Participating Investors' option, any portion of the Registrable Securities of
the Participating Investors, all to the extent necessary to permit the public
offering and sale of the Registrable Securities through the facilities of all
securities exchanges and the over-the-counter markets on which the Company's
securities are traded or are anticipated to be traded, and will use its best
efforts through its officers, directors, auditors, and counsel to cause such
registration statement to become effective as promptly as practicable. As used
herein, "Participating Investors" shall mean the Investors who elects to
participate in any offering of the Company's Common Stock pursuant to the
provisions of this Section 1. As used herein, "Registrable Securities" shall
mean any shares of Common Stock issued in the Private Placement or received upon
the conversion of the Notes held by an Investor on the date on which an Investor
notifies the Company that it elects to exercise the rights granted to it
pursuant to this Section 1, which, in each case, have not been previously sold
pursuant to a registration statement or are able to be sold pursuant to Rule
144(k) promulgated under the Securities Act on the date the Company notifies the
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Investors of an Offering Registration. If the Company intends to file an
Offering Registration, the Company shall give the Investors at least sixty (60)
days prior written notice of its intention to file such Offering Registration.
Each Investor shall then have thirty (30) days to advise the Company, in
writing, of its election to exercise the registration rights granted pursuant to
this Section 1(a). If an Investor does not notify the Company of its intention
to exercise the registration rights as provided for in the previous sentence,
such Investor shall be deemed to have waived such registration rights with
respect to such Offering Registration. Notwithstanding the foregoing, if the
managing underwriter of any such offering shall advise the Company, in writing,
that, in its opinion, the distribution of all or a portion of the Registrable
Securities requested to be included in the registration concurrently with the
securities being registered by the Company would materially and adversely affect
the distribution of such securities by the Company for its own account, then the
Participating Investors shall not be entitled to have such Registrable
Securities (or the portions thereof so designated by the managing underwriter)
included in such registration statement, provided, however, that no such
exclusion or reduction shall be made as to any Registrable Securities if any
securities of the Company are included in such registration statement for the
account of any person other than the Company and the Participating Investors
unless the securities so included in such registration statement for each such
other person or persons requesting registration shall have been reduced by the
same proportion (based upon the total amount of securities for which each person
is entitled to request registration in such registration statement) as the
Registrable Securities which were requested to be included in such registration
were reduced; further, provided, however, that, notwithstanding the foregoing,
the Company shall, at is sole cost and expense (other than the fees and
disbursements of any Participating Investors' counsel and underwriting
discounts, if any), automatically and with no action necessary on the part of
the Investors or the Company register the shares of Common Stock issued to the
Investors in the Private Placement if and when the Company files a registration
statement with respect to an initial public offering of its Common Stock in
which Barington Capital Group, L.P. ("Barington") is the lead or co-lead
underwriter.
b. If the Company shall file a registration statement (other than for an
Offering Registration, any registration statement on Form X-0, Xxxx X-0, or any
successor form) with the Securities and Exchange Commission (the "Commission")
while any Registrable Securities are outstanding, and for any reason the
Investors will not otherwise have as of the effective date of such registration
statement, the benefit of an effective registration statement, including all
required amendments and supplements filed pursuant to Section 1(a) hereof,
registering for sale the Registrable Securities, the Company shall give the
Investors at least fifteen (15) days' prior written notice of the filing of such
registration statement. If requested by any Investor, in writing, within thirty
(30) days after receipt of any such notice, the Company shall, at the Company's
sole expense (other than the fees and disbursements of counsel for such
Participating Investors and the underwriting discounts, if any, payable in
respect of the Registrable Securities sold by the Participating Investors),
register or qualify all or, at each Participating Investor's option, any portion
of the Registrable Securities of such Participating Investors concurrently with
the registration of such other securities, all to the extent requisite to permit
the public offering and sale of the Registrable Securities through the
facilities of all securities exchanges and the over-the-counter markets on which
the Company's securities are traded or are anticipated to be traded, and, will
use its best efforts through its officers, directors, auditors, and counsel to
cause such registration statement to become effective as promptly as
practicable. Notwithstanding the foregoing, if the managing underwriter of any
such offering shall advise the Company, in writing, that, in its opinion, the
distribution of all or a portion of the Registrable Securities requested to be
included in the registration concurrently with the securities being registered
by the Company would materially and adversely affect the distribution of such
securities by the Company for its own account, then the Participating Investors,
if they have requested registration of their Registrable Securities shall not be
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entitled to have such Registrable Securities (or the portions thereof so
designated by the managing underwriter) included in such registration statement,
provided, however, that no such exclusion or reduction shall be made as to any
Registrable Securities if any securities of the Company are included in such
registration statement for the account of any person other than the Company and
the Participating Investors unless the securities so included in such
registration statement for each such other person or persons requesting
registration shall have been reduced by the same proportion (based upon the
total amount of securities for which each person is entitled to request
registration in such registration statement) as the Registrable Securities which
were requested to be included in such registration were reduced.
c. In the event of a registration pursuant to the provisions of this Section 1,
the Company shall use its best efforts to cause the Registrable Securities so
registered to be registered or qualified for sale under the securities or blue
sky laws of such jurisdictions as any Participating Investor may reasonably
request; provided, however, that the Company shall not by reason of this
Agreement be required to qualify to do business in any state in which it is not
otherwise required to qualify to do business or to file a general consent to
service of process.
d. The Company shall keep effective any registration or qualification
contemplated by this Agreement and shall, from time to time, amend or supplement
each applicable registration statement, preliminary prospectus, final
prospectus, application, document, and communication for such period of time as
shall be required to permit a Participating Investor to complete the offer and
sale of the Registrable Securities covered thereby; provided, that, with respect
to an Offering Registration for the initial public offering of the Common Stock
of the Company in which Barington is the lead or co-lead underwriter, such
registration statement shall be kept effective for two (2) years. Subject to the
preceding sentence, the Company shall in no event be required to keep any such
registration or qualification in effect for a period in excess of six (6) months
from the date on which the Investors are first free to sell such Registrable
Securities taking into account any lock-up agreed to by the Investors; provided,
however, that, if the Company is required to keep any such registration or
qualification in effect with respect to securities other than the Registrable
Securities beyond such period, the Company shall keep such registration or
qualification in effect as it relates to the Registrable Securities for so long
as such registration or qualification remains or is required to remain in effect
in respect of such other securities.
e. In the event of a registration pursuant to the provisions of this Section 1,
the Company shall furnish to the Participating Investors such reasonable number
of copies of the registration statement and of each amendment and supplement
thereto (in each case, including all exhibits), such reasonable number of copies
of each prospectus contained in such registration statement and each supplement
or amendment thereto (including each preliminary prospectus), all of which shall
conform to the requirements of the Securities Act and the rules and regulations
promulgated thereunder, and such other documents, as the Participating Investors
may reasonably request to facilitate the disposition of the Registrable
Securities included in such registration.
f. In the event of a registration pursuant to the provisions of this Section 1,
furnish, at the request of any Participating Investor, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Section 1, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement, with respect to such
securities, becomes effective, (i) an opinion dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the requesting
Participating Investors and (ii) a letter dated such date, from the
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independent certified public accountants of the Company, in form and substance
as is customarily given to underwriters in an underwritten public offering,
addressed to the underwriters, if any, and to the requesting Participating
Investors. Any opinion or letter given shall be subject to all of the
qualifications, exceptions and conditions appropriate to the then existing
circumstances.
g. In the event of a registration pursuant to the provision of this Section 1,
the Company and the Participating Investors shall enter into a cross-indemnity
agreement and a contribution agreement, each in customary form, with each
underwriter, if any, and, if requested, enter into an underwriting agreement
containing conventional representations, warranties, allocation of expenses, and
customary closing conditions, with any underwriter who acquires any Registrable
Securities.
h. The Company agrees that, until all the Registrable Securities have been sold
under a registration statement or pursuant to Rule 144 promulgated under the
Securities Act, it shall keep current in filing all reports, statements and
other materials required to be filed with the Commission to permit holders of
the Registrable Securities to sell such securities under Rule 144 promulgated
under the Securities Act.
i. Until such time as the Company shall have fully performed its obligations
under this Section 1, the Company shall not grant Piggy Back registration rights
to any persons without the written consent of the Investors (as provided for
herein), provided, however, that the Company may grant Piggy Back registration
rights to other persons so long as such rights are pari passu or subordinate to
the rights of the Investors and, further provided, however, that nothing herein
contained shall prohibit the Company from granting to any person demand
registration rights.
j. If, at any time after giving written notice of its intention
to register any Common Stock and prior to the effective date of any Offering
Registration, the Company shall determine for any reason not to register the
Common Stock, the Company shall give written notice to the Participating
Investors and, thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such abandoned Offering Registration.
2. Indemnification and Contribution.
a. Subject to the conditions set forth below, the Company agrees
to indemnify and hold harmless the Investors, their respective officers,
directors, partners, employees, agents, and counsel, and each person, if any,
who controls any such person within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act, from and against any and all loss,
liability, charge, claim, damage, and expense whatsoever (which shall include,
for all purposes of this Section 2, without limitation, reasonable attorneys'
fees and any and all expense whatsoever incurred in investigating, preparing, or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), as and when incurred, arising out of, based upon, or in connection
with (i) any untrue statement or alleged untrue statement of a material fact
contained (A) in any registration statement, preliminary prospectus, or final
prospectus (as from time to time amended and supplemented), or any amendment or
supplement thereto, relating to the sale of any of the Registrable Securities,
or (B) in any application or other document or communication (in this Section 2
collectively called an "application") executed by or on behalf of the Company or
based upon written information furnished by or on behalf of the Company filed in
any jurisdiction in order to register or qualify any of the Registrable
Securities under the securities or blue sky laws thereof or filed with the
Commission or any securities exchange; or any omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, unless such statement or omission was made in
reliance upon and
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in conformity with written information furnished to the Company with respect to
any Investors by or on behalf of such person expressly for inclusion in any
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, or in any application, as the case may be, or
(ii) any breach of any representation, warranty, covenant, or agreement of the
Company contained in this Agreement or any agreement pursuant to which the
Registerable Securities were issued. The foregoing agreement to indemnify shall
be in addition to any liability the Company may otherwise have to the Investors.
If any action is brought against any Investor or any of their
respective officers, directors, partners, employees, agents, or counsel, or any
controlling persons of such person (an "indemnified party") in respect of which
indemnity may be sought against the Company pursuant to the foregoing paragraph,
such indemnified party or parties shall promptly notify the Company, in writing,
of the institution of such action (but the failure so to notify shall not
relieve the Company from any liability under this Agreement unless the Company
shall have been materially prejudiced by such failure) and the Company shall
promptly assume the defense of such action, including the employment of counsel
(reasonably satisfactory to such indemnified party or parties) and payment of
expenses. Such indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless the
employment of such counsel shall have been authorized, in writing, by the
Company in connection with the defense of such action or the Company shall not
have employed counsel reasonably satisfactory to such indemnified party or
parties to have charge of the defense of such action or such indemnified party
or parties shall have reasonably concluded that there may be one or more legal
defenses available to it or them or to other indemnified parties which are
different from or additional to those available to the Company, in any of which
events such fees and expenses shall be borne by the Company and the Company
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties. Anything in this Section 2 to the contrary
notwithstanding, the Company shall not be liable for any settlement of any such
claim or action effected without its written consent, which shall not be
unreasonably withheld. The Company agrees promptly to notify all the Investors
of the commencement of any litigation or proceedings against the Company or any
of its officers or directors in connection with the sale of any Registrable
Securities or any preliminary prospectus, prospectus, registration statement, or
amendment or supplement thereto, or any application relating to any sale of any
Registrable Securities.
b. The Participating Investors agree to indemnify and hold
harmless the Company, each director of the Company, each officer of the Company
who shall have signed any registration statement covering Registrable Securities
held by such Participating Investor, each other person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, and its or their respective counsel, to the same extent as
the foregoing indemnity from the Company to the Investor in Section 2(a), but
only with respect to statements or omissions, if any, made in any registration
statement, preliminary prospectus, or final prospectus (as from time to time
amended and supplemented), or any amendment or supplement thereto, or in any
application, in reliance upon and in conformity with written information
furnished to the Company with respect to such Participating Investor by or on
behalf of such Participating Investor expressly for inclusion in any such
registration statement, preliminary prospectus, or final prospectus, or any
amendment or supplement thereto, or in any application, as the case may be. If
any action shall be brought against the Company or any other person so
indemnified based on any such registration statement, preliminary prospectus, or
final prospectus, or any amendment or supplement thereto, or in any application,
and in respect of which indemnity may be sought against any Participating
Investor pursuant to this Section 2(b), such Participating Investor shall have
the rights and duties given to the Company, and the
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Company and each other person so indemnified shall have the rights and duties
given to the indemnified parties, by the provisions of Section 2(a), including
any and all of the procedures set forth in Section 2(a).
c. To provide for just and equitable contribution, if (i) an
indemnified party makes a claim for indemnification pursuant to Section 2(a) or
2(b) (subject to the limitations thereof) but it is found in a final judicial
determination, not subject to further appeal, that such indemnification may not
be enforced in such case, even though this Agreement expressly provides for
indemnification in such case, or (ii) any indemnified or indemnifying party
seeks contribution under the Securities Act, the Exchange Act or otherwise, then
the Company (including for this purpose any contribution made by or on behalf of
any director of the Company, any officer of the Company who signed any such
registration statement, any controlling person of the Company, and its or their
respective counsel), as one entity, and the Participating Investors, in the
aggregate (including for this purpose any contribution by or on behalf of an
indemnified party), as a second entity, shall contribute to the losses,
liabilities, claims, damages, and expenses whatsoever to which any of them may
be subject, on the basis of relevant equitable considerations such as the
relative fault of the Company and such Participating Investors in connection
with the facts which resulted in such losses, liabilities, claims, damages, and
expenses. The relative fault, in the case of an untrue statement, alleged untrue
statement, omission, or alleged omission, shall be determined by, among other
things, whether such statement, alleged statement, omission, or alleged omission
relates to information supplied by the Company or by such Participating
Investors, and the parties' relative intent, knowledge, access to information,
and opportunity to correct or prevent such statement, alleged statement,
omission, or alleged omission. The Company and the Investors agree that it would
be unjust and inequitable if the respective obligations of the Company and the
Investors for contribution were determined by pro rata or per capita allocation
of the aggregate losses, liabilities, claims, damages, and expenses (even if the
Investors and the other indemnified parties were treated as one entity for such
purpose) or by any other method of allocation that does not reflect the
equitable considerations referred to in this Section 2(c). No person guilty of a
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who is not
guilty of such fraudulent representation. For purposes of this Section 2(c),
each person, if any, who controls an Investor within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act and each officer,
director, partner, employee, agent, and counsel of an Investor or control person
shall have the same rights to contribution as such Investor or control person
and each person, if any, who controls the Company within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act, each officer of
the Company who shall have signed any such registration statement, each director
of the Company, and its or their respective counsel shall have the same rights
to contribution as the Company, subject in each case to the provisions of this
Section 2(c). Anything in this Section 2(c) to the contrary notwithstanding, no
party shall be liable for contribution with respect to the settlement of any
claim or action effected without its written consent. This Section 2(c) is
intended to supersede any right to contribution under the Securities Act, the
Exchange Act or otherwise.
3. General.
a. Amendments and Waivers. No amendment or waiver of any term or
provision of this Agreement shall be effective unless in writing signed by the
party to be charged; provided, however, that the Investors holding a majority of
the outstanding Registrable Securities under this Agreement may amend or waive
this Agreement and such amendment or waiver shall be effective against all of
the Investors. The waiver by any party of a breach of any term or provision of
this Agreement shall not be construed as a waiver of any subsequent breach.
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b. Notices. Except as otherwise provided in this Agreement,
notices and other communications under this Agreement shall be in writing and
shall be deemed to have been duly given on the date received by hand delivery,
overnight delivery, facsimile transmission or registered mail, postage prepaid,
addressed as follows:
to the Company:
U.S. OnLine Communications, Inc.
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
and to the Investors at the addresses set forth for each Investor on the
signature page of this Agreement.
The Company and the Investor, by written notice given in accordance with this
Section 3(b), may change the address to which such notice or other
communications are to be sent.
c. Company Representations. The Company represents and warrants
to the Investor that:
i. The Company has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby;
ii. The execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby have been duly authorized by all necessary corporate action on the part
of the Company;
iii. This Agreement has been duly executed and delivered
by the Company and (assuming the due authorization, execution and delivery
hereof by the Investor) constitutes a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except
that such enforceability may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws affecting or relating to enforcement of
creditors' rights generally and (ii) general equitable principles;
iv. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby and compliance with
the provisions hereof will not, result in any violation or default (with or
without notice or lapse of time, or both) under, (i) any provision of the
charter or organizational documents of the Company, (ii) any judgment, order,
decree, statute, law, ordinance, rule or regulation by which the Company is
bound or to which any of its properties or assets is subject, other than, in
which any of its properties or assets is subject, other than, in the case of
clause (ii), any such violation or default that would not reasonably be expected
to have a material adverse effect on the financial condition or operations of
the Company and its consolidated subsidiaries, taken as a whole, and would not
impair the ability of the Company to perform its obligations under this
Agreement; and
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v. No filing or registration with, or authorization,
consent or approval of, any governmental authority is required by or with
respect to the Company in connection with the execution and delivery by the
Company of this Agreement or the consummation by the Company of the transactions
contemplated hereby, except as otherwise expressly provided herein or in the
agreements pursuant to which the Registerable Securities or the securities which
were convertible for, or exchangeable into the Registerable Securities were
issued.
d. Investor Representation. Each of the Investors represents and
warrants to the Company that:
i. Such Investor has all requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby;
ii. This Agreement has been duly executed and delivered by
such Investor and (assuming the due authorization, execution and delivery hereof
by the Company) constitutes a valid and binding obligation of such Investor,
enforceable against such Investor in accordance with its terms, except that such
enforceability may be subject to (i) bankruptcy, insolvency, reorganization or
other similar laws affecting or relating to enforcement of creditors' rights
generally and (ii) general equitable principles;
iii. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby and compliance with
the provisions hereof will not, result in any violation of or default (with or
without notice or lapse of time, or both) under any judgment, order, decree,
statute, law, ordinance, rule or regulation by which such Investor is bound or
to which any of its properties or assets is subject; and
iv. No filing or registration with, or authorization,
consent or approval of, any governmental authority is required by or with
respect to such Investor in connection with the execution and delivery by such
Investor of this Agreement or the consummation by such Investor of the
transactions contemplated hereby, except as otherwise expressly provided herein.
e. Each Investor agrees not to effect any public sale or
distribution of Registrable Securities, or any securities convertible into or
exchangeable or exercisable for Registrable Securities, during the seven (7)
days prior to and the period after (as requested by the underwriters, but not to
exceed 180 days) the effectiveness of the first registration of the Company's
securities to be sold in an underwritten public offering for the account of the
Company, provided that all officers and directors of the Company agree to be
similarly bound with respect to equity securities of the Company held by such
officers and directors, provided further that any discretionary waiver or
termination of the restrictions of such agreements by the representatives of the
underwriters shall apply to all persons subject to such agreements pro rata
based on the number of equity securities held by such persons and subject to
such agreements, provided further that such holders are given reasonable notice
of such registration. Without limiting the foregoing, it is expressly agreed
that the provisions of this Section shall not (i) apply to any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock acquired by any Investor directly from the underwriters in a
registered public offering of the Company's securities or in an established
trading market from any party other than the Company, and (ii) apply to any
initial public offering of Common Stock in which Barington is the lead or
co-lead underwriter.
f. The rights granted under this Agreement may be assigned or
otherwise
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conveyed by any Investor, in compliance with federal and applicable state
securities laws, to any transferee or assignee who, after such assignment or
transfer, holds at least 3,300 shares of Registrable Securities (subject to
appropriate adjustment for stock splits, stock dividends, combinations and other
recapitalizations). For the purposes of determining the number of shares of
Registrable Securities held by a transferee or assignee, the holdings of a
transferee or assignee who is (A) a shareholder, partner, retired partner,
member, retired member or beneficiary of an Investor; (B) a spouse or child of a
shareholder, partner, retired partner, member, retired member or beneficiary of
an Investor; (C) a trust for the benefit of the persons set forth in (A) or (B)
or for the issue of the persons set forth in (A) or (B); and (D) an entity
(corporation, partnership, limited liability company or other juridical entity)
of which at least 75 percent in interest is owned or controlled, directly or
indirectly through other entities, or by one or more of the persons set forth in
(A), (B) or (C), shall be aggregated together with the corporation, partnership
or limited liability company as the case may be.
g. Miscellaneous.
i. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and the respective
successors and assigns of the parties hereto.
ii. This Agreement constitutes the entire understanding
between the parties with respect to the subject matter hereof and supersedes any
and all previous agreements among them relating to the subject matter hereof,
whether written, oral or implied.
iii. This Agreement shall be governed by, and interpreted
in accordance with, the laws of the State of Delaware, without giving effect to
the conflicts of law principles thereof.
iv. The Section and other headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation hereof.
v. This Agreement may be executed in one or more
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which together shall be deemed to be one and the same
agreement.
vi. Should any term or condition of this Agreement be
determined by a court of competent jurisdiction to be unenforceable for any
reason, including, without limitation, violation of statute or public policy,
such provision shall, if possible, be reformed by the parties hereto, or if the
parties cannot agree, by the appropriate court of competent jurisdiction to
comply with applicable legal requirements in a matter that is as close in its
intent and effect to the original provision as possible or, if such reformation
cannot be accomplished shall be stricken without affecting the validity of any
other term or condition of this Agreement.
vii. Each party hereto 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 agreements, certificates, instruments, and documents as
any other party hereto reasonably may 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 executed this Agreement as of the
date first above written.
U.S. ONLINE COMMUNICATIONS,
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INC.
By: _______________________________
Name: Xxxxxx X. Xxxxxxx
Title: Chief Executive Officer
INVESTORS
Address: By:
Name:
Title:
Fax No.:
Address: By:
Name:
Title:
Fax No.:
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