EXHIBIT 10.4
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REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of February 28,
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2002 is entered into by and between Intercallnet, Inc., a Florida corporation
(the "Company"), and the investor named on the signature page hereto (the
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"Investor"), as amended from time to time to include any Investor Transferee (as
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defined in Section 2.1 hereof).
RECITALS
WHEREAS, concurrent with the execution and delivery of this Agreement (or at the
Closing, if later), the Company is issuing and selling to the Investor 1,500,000
shares (the "Preferred Shares") of its Series A Convertible Preferred Stock,
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$0.0001 par value per share (the "Series A Convertible Preferred Stock"), and
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certain warrants (the "Warrants") to purchase shares of its Common Stock, par
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value $0.0001 par value per share (the "Common Stock") pursuant to the terms and
conditions of that certain Series A Convertible Preferred Stock and Warrant
Purchase Agreement dated of even date herewith between the Company and such
Investor (the "Purchase Agreement");
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WHEREAS, the Company and the Investor desire to enter into an agreement granting
the Investor certain registration rights, information rights and other rights in
connection with its ownership of shares of the Preferred Shares (including the
Conversion Shares into which such Preferred Shares are convertible) and Warrants
(including the shares of the Company's common stock into which such Warrants are
exercisable).
NOW, THEREFORE, in consideration of the promises and mutual agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS; REGISTRATION RIGHTS
1.1 Certain Definitions. As used in this Agreement, the following terms shall
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have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the common stock, $0.0001 par value, of the
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Company and any class of common stock of the Company into which such
common stock is converted or reclassified or for which such common
stock is exchanged.
"Conversion Shares" shall mean shares of Common Stock issued or
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issuable upon conversion of the Preferred Shares.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
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or any similar federal rule or statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Register," "registered" and "registration" refer to a registration
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effected by preparing and filing a registration statement in compliance
with the Securities Act, as defined below, and the declaration or ordering
of the effectiveness of such registration statement.
"Registrable Securities" shall mean (i) the Conversion Shares, (ii) the
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Warrant Shares (and shares of the Company's Common Stock underlying Penalty
Warrants, as such term is defined herein), and (iii) shares issued or
issuable upon an adjustment for stock splits, stock dividends and the like
(including, without limitation, any such adjustments with respect to the
securities referred to in (i) and (ii) above). Notwithstanding the
foregoing, Registrable Securities shall not include Conversion Shares
and/or Warrant Shares (and/or shares of the Company's Common Stock
underlying Penalty Warrants) which have been (i) registered under the
Securities Act pursuant to an effective registration statement filed
thereunder and disposed of in accordance with the registration statement
covering them, (ii) publicly sold pursuant to Rule 144 under the Securities
Act, or (iii) eligible for sale under Rule 144(k) under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
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similar federal rule or statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Shareholders' Agreement" shall mean the Shareholders' Agreement, dated the
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date hereof, among the Company and certain shareholders of the Company.
"Warrant Shares" shall mean shares of Common Stock issued or issuable upon
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exercise of the Warrants.
1.2 Restrictive Legend. Each certificate representing Preferred Shares or
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Conversion Shares shall, except as otherwise provided in Section 1.3, be stamped
or otherwise imprinted with a legend substantially in the following form:
"TRANSFER RESTRICTED
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
REGISTRATION RIGHTS AGREEMENT BY AND BETWEEN THE COMPANY AND A CERTAIN
SHAREHOLDER. A COPY OF THE REGISTRATION RIGHTS AGREEMENT MAY BE OBTAINED
FROM THE COMPANY WITHOUT CHARGE UPON THE WRITTEN REQUEST OF THE HOLDER
HEREOF.
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY
NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED UNLESS (1) THEY ARE REGISTERED UNDER THE ACT OR (2) THE HOLDER
HAS DELIVERED TO THE ISSUER AN OPINION OF COUNSEL, SATISFACTORY TO THE
ISSUER AND ITS COUNSEL, TO THE EFFECT THAT THERE IS AN AVAILABLE EXEMPTION
FROM REGISTRATION UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS OR
THAT REGISTRATION IS OTHERWISE NOT REQUIRED.
1.3 Required Registration.
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(a) Not later than November 30, 2002 (60 days following September 30, 2002,
the required date for filing the Company's Form 10-KSB for the fiscal year
ended June 30, 2002), the Company shall file a Form SB-2 registration
statement with the Commission registering all of the Registrable
Securities; provided, however, that the Company may, by notice to the
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holders of the Preferred Shares, Warrants and/or the Registrable
Securities, delay such registration if the Company's Board of Directors
determines that such registration at such time would have a material
adverse effect upon the Company; provided, further, however, that the
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Company's ability to delay such registration shall be limited to a duration
of no longer than ninety (90) days and the Company shall not delay more
than once.
The Company shall not be obligated pursuant to this Section 1.3 to
effectuate more than one (1) registration.
(b) The Company's registration obligation hereunder shall be deemed
satisfied only when a registration statement covering all shares of
Registrable Securities shall have become effective with the Commission.
(c) The Company shall be entitled to include in any registration statement
referred to in this Section 1.3 for sale shares of Common Stock to be sold
by the Company for its own account and/or for the account of other security
holders or both, except as and to the extent that, in the reasonable
opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would materially adversely
affect the marketing of the Registrable Securities to be sold. Except for
registration statements on Form X-0, X-0 or any successor thereto, the
Company will not file with the Commission any other registration statement
with respect to its Common Stock, whether for its own account or that of
other security holders, from the date of the effectiveness of the
registration statement pursuant to this Section1.3 until the completion of
the lesser of the period of distribution of the shares of Registrable
Securities registered thereby or one hundred eighty (180) days from the
effective date of the registration statement.
1.4 Company Registration.
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(a) Notice of Registration. If at any time or from time to time the
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Company shall determine to register any of its equity securities, either for its
own account or the account of the Investor or other holders, other than (i) a
registration relating solely to employee benefit plans and otherwise pursuant to
Form S-8 and the instructions to Form S-8, (ii) a registration relating solely
to a Rule 145 transaction, or (iii) a registration in which the only equity
security being registered is Common Stock issuable upon conversion of
convertible debt securities which are also being registered, the Company will:
(i) promptly give to the Investor written notice thereof; and
(ii) include in such registration (and any related qualifications
including compliance with Blue Sky laws), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within ten (10) business days after the date of such written
notice from the Company, by the Investor.
(b) Underwriting. If the registration of which the Company gives notice is
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for a registered public offering involving an underwriting, the Company shall so
advise the Investor as a part of the written notice given pursuant to Section
1.4(a)(i). In such event, the right of the Investor to registration pursuant to
Section 1.4 shall be conditioned upon the Investor's participation in such
underwriting and the inclusion of Registrable Securities in the underwriting
shall be limited to the extent provided herein. Notwithstanding any other
provision of this Section 1.4, if the managing underwriter determines that
marketing factors require a limitation of the number of shares to be
underwritten, the managing
underwriter may limit the Registrable Securities to be included in such
registration to zero, provided that the Company shall ensure that such
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reductions shall be made in the following order of priority: (x) first, the
shares held by selling holders, including, but not limited to, employees of the
Company and members of the Company's board of directors, other than the Investor
shall be reduced; (y) second, the shares held by the Investor shall be reduced;
and (z) third, the shares of the Company to be included in the underwriting
shall be reduced. The Company shall so advise all holders requesting to be
included in the registration and underwriting, and the number of shares of
Registrable Securities that may be included in the registration and underwriting
shall be allocated among all the holder requesting to be included in the
registration and underwriting in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by them at the time of filing
the registration statement. To facilitate the allocation of shares in accordance
with the above provisions, the Company or the underwriters may round the number
of shares allocated to any holder to the nearest 100 shares. If any holder
disapproves of the terms of any such underwriting, such person may elect to
withdraw therefrom by written notice to the Company.
(c) Right to Terminate Registration. The Company shall have the right to
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terminate or withdraw any registration initiated by it under this Section 1.4
prior to the effectiveness of such registration whether or not the Investor has
elected to include securities in such registration.
1.5 Registration Procedures. When the Company is required by the provisions of
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Sections 1.3 to effect the filing of a registration statement concerning the
registration of any shares of Registrable Securities under the Securities Act,
the Company will, at its cost and expense (including without limitation, payment
of the costs and expenses described in Section 1.6), as expeditiously as
reasonably practicable:
(a) prepare and file with the Commission a registration statement with
respect to such securities and use all commercially reasonable best efforts
to cause such registration statement to become and remain effective for the
period of the distribution contemplated thereby (determined as hereinafter
provided);
(b) prepare and file as expeditiously as reasonably practicable and in any
event within ninety (90) days with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the period specified in Section 1.4(a) above and
comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration
statement in accordance with the sellers' intended method of disposition
set forth in such registration statement for such period;
(c) furnish to each seller of Registrable Securities and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as such
persons reasonably may request in order to facilitate the public sale or
other disposition of the Registrable Securities covered by such
registration statement;
(d) use its best efforts to register and qualify the Registrable Securities
covered by such registration statement under the securities or "blue sky"
laws of such jurisdictions as the sellers of Registrable Securities or, in
the case of an underwritten public offering, the managing underwriter
reasonably shall request, provided, however, that the Company shall not for
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any such purpose be required to qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so qualified or to
consent to general service of process in any such jurisdiction unless the
Company is already subject to service in such jurisdiction and except as
may be required by the Securities Act;
(e) cause all such Registrable Securities to be listed on any securities
exchange on which the Common Stock of the Company is then listed;
(f) immediately notify in writing each seller of Registrable Securities and
each underwriter under such registration statement, at any time when a
prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus contained in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then
existing. The Company will use its best efforts to amend or supplement
such prospectus in order to cause such prospectus not to include, as to
information provided by the Company, 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 not misleading in light of the
circumstances then existing as to information provided by both the Company
and the sellers of Registrable Securities. The sellers of Registrable
Securities agree upon receipt of such notice forthwith to cease making
offers and sales of Registrable Securities pursuant to such registration
statement or deliveries of the prospectus contained therein for any purpose
until the Company has prepared and furnished such amendment or supplement
to the prospectus as may be necessary so that, as thereafter delivered to
purchasers of such Registrable Securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(g) notify in writing each seller of Registrable Securities under such
registration statement of (i) the effectiveness of such registration
statement, (ii) the filing of any post-effective amendments to such
registration statement, or (iii) the filing of a supplement to such
registration statement; and
(h) make available for inspection upon reasonable notice during the
Company's regular business hours by each seller of Registrable Securities,
any underwriter participating in any distribution pursuant to such
registration statement, and any attorney, accountant or other agent
retained by such seller or underwriter, all material financial and other
records, pertinent corporate documents and properties of the Company, and
cause the Company's officers and directors to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant
or agent in connection with such registration statement.
(i) provide a transfer agent and registrar for all Registrable Securities
registered pursuant hereto to be listed on each securities exchange or
automated quotation system on which similar securities issued by the
Company are then listed.
(j) Use its best efforts to furnish, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such securities
are being sold through underwriters, (a) an opinion, dated as of 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 (b) a letter, dated as of such date, from the independent certified
public accountants of the Company, in form and substance as is customarily
given by independent certified public accountants to underwriters in an
underwritten public offering addressed to the underwriters.
For purposes of Section 1.5(a) and 1.5(b) and of Section 1.3(c), the period
of distribution of Registrable Securities in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Registrable Securities in any other registration shall be deemed
to extend until the earlier of the sale of all Registrable Securities covered
thereby or one
hundred eighty (180) days after the effective date thereof, with reasonable
extensions to be granted for suspensions thereof.
In connection with and as a condition to each registration hereunder, the
sellers of Registrable Securities shall (a) provide such information and execute
such documents as may reasonably be required in connection with such
registration, (b) agree to sell Registrable Securities on the basis provided in
any underwriting arrangements, and (c) complete and execute all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required or requested under the terms of such underwriting
arrangements.
In connection with a registration pursuant to Section 1.3 covering an
underwritten public offering, the Company and each seller agree to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between such underwriter and
companies of the Company's size and investment stature.
1.6 Expenses. All expenses incurred by the Company in complying with Section
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1.3 including, without limitation, all registration and filing fees,
registration fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees and expenses (including
counsel fees) incurred in connection with complying with state securities or
"blue sky" laws, transfer taxes, fees of transfer agents and registrars, and the
reasonable fees and disbursements of one counsel for the sellers of Registrable
Securities but excluding any Selling Expenses (as defined below), are called
"Registration Expenses." All underwriting discounts and selling commissions
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applicable to the sale of Registrable Securities and the fees of more than one
counsel for the sellers are called "Selling Expenses."
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The Company will pay all Registration Expenses in connection with a
registration statement under Section 1.3. All Selling Expenses in connection
with a registration statement under Section 1.3 shall be borne by the
participating sellers in proportion to the number of shares sold by each, or by
such participating sellers other than the Company (except to the extent the
Company shall be a seller) as they may agree.
1.7 Information by Holder. The holder or holders of Registrable Securities
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included in any registration shall furnish to the Company such information
regarding such holder or holders of Registrable Securities, the Registrable
Securities held by them and the distribution proposed by such holder or holders
of Registrable Securities as the Company may reasonably request in writing and
as shall be required in connection with any registration (including any
amendment to a registration statement or prospectus), qualification or
compliance referred to in this Section 1.7.
1.8 Lock-Up Agreements. Each holder of Registrable Securities shall agree to
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be bound by such lock-up agreements (not to exceed a period of ninety (90) days
following the date of the prospectus relating to any such underwriting) as the
managing underwriter of any such registration shall specify as a requirement to
any such underwriting, provided that the entry of such holder of Registrable
Securities into such agreements shall be conditioned upon all current and then
greater than ten percent (10%) shareholders and executive officers and directors
of the Company also agreeing to execute such lock-up agreement regardless of the
number of shares of the capital stock of the Company then owned by them.
1.9 Indemnification and Contribution.
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(a) In connection with a registration of the Registrable Securities under
the Securities Act pursuant to Section 1.3, the Company will indemnify and
hold harmless each seller of such Registrable Securities thereunder and
each of its officers and directors, each underwriter of such Registrable
Securities thereunder and each other person, if any, who controls such
seller or underwriter within the meaning of Section15 of the Securities
Act, from and against any expenses, losses, claims, damages or liabilities,
joint or several, to which such seller, underwriter or controlling person
may become subject under the Securities Act or under any other statute or
at common law or otherwise, insofar as such expenses, losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such Registrable
Securities were registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, offering circular or
other document or any amendment or supplement thereof or any document
incorporated by reference therein, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading or any violations of applicable law relating to such
registration, including, without limitation, the Securities Act, the
Exchange Act, state securities laws or any rule or regulation promulgated
under such laws, and will pay the reasonable legal fees and other expenses
of each such seller, each of its officers and directors, each such
underwriter and each such controlling person incurred by them in connection
with investigating or defending any action whether or not resulting in any
liability insofar as such loss, expense, claim, damage, liability or action
results from the foregoing, provided, however, that the Company will not be
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liable to a seller in any such case if and to the extent that any such
loss, expense, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged
omission so made in reliance upon and in conformity with information
furnished in writing and duly executed by any such seller, any such
underwriter or any such controlling person specifically for use in such
registration statement or prospectus, and, provided further, however, that
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the Company will not be liable to a holder in any such case to the extent
that any such loss, expense, claim, damage, liability or action arises out
of or is based upon an untrue or alleged untrue statement or omission or an
alleged omission made in any preliminary prospectus or final prospectus if
(1) such holder failed to send or deliver a copy of the final prospectus or
prospectus supplement with or prior to the delivery of written confirmation
of the sale of the Registrable Securities, and (2) the final prospectus or
prospectus supplement would have corrected such untrue statement or
omission.
(b) In connection with a registration of the Registrable Securities under
the Securities Act pursuant to Section 1.3, each seller of such Registrable
Securities thereunder, severally and not jointly, will indemnify and hold
harmless the Company, each person, if any, who controls the Company within
the meaning of the Securities Act, each officer of the Company who signs
the registration statement, each director of the Company, each underwriter
and each person who controls any underwriter within the meaning of the
Securities Act, against all expenses, losses, claims, damages or
liabilities, joint or several, to which the Company or such officer,
director, underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such expenses, losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement under which such Registrable
Securities was registered under the Securities Act, any preliminary
prospectus or final prospectus contained therein, or any amendment or
supplement thereof, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will pay the reasonable legal fees and other expenses of the Company and
each such officer, director, underwriter and controlling person reasonably
incurred by them in connection with investigating or defending any such
expense, loss, claim, damage, liability or action, provided, however, that
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such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with information
furnished in writing to the Company by such
seller specifically for use in such registration statement or prospectus,
and provided, further, however, that the liability of each seller hereunder
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shall be limited to the amount of net proceeds received by such seller in
connection with such registration.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to
notify the indemnifying party shall not relieve it from any liability that
it may have to such indemnified party under this Section 1.11 except and
only to the extent the indemnifying party is materially prejudiced by such
omission. In case any such action shall be brought against any indemnified
party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be permitted to participate in and,
to the extent permitted, to assume and undertake the defense thereof at
such indemnifying party's expenses provided that the indemnifying party
shall not assume the defense for matters as to which there is a conflict of
interest or there are separate and different defenses.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which the indemnified
party makes a claim for indemnification pursuant to this Section 1.9 but it
is judicially determined (by the entry of a final judgment or decree by a
court of competent jurisdiction and the expiration of time to appeal or the
denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 1.9
provides for indemnification in such case, or (ii) contribution under the
Securities Act may be required on the part of the indemnifying party in
circumstances for which indemnification is provided under this Section 1.9;
then, and in each such case, the indemnifying party will , to the extent
permitted by applicable law, contribute to the aggregate losses, claims,
damages or liabilities to which it is subject (after contribution from
others) in such proportion as is appropriate to reflect relative fault of
the indemnifying party on the one hand and of the indemnified party on the
other as to the matters giving rise to such losses, claims, damages or
liabilities as well as any other relevant equitable considerations,
provided, however, that, in any such case, no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 12(f) of the
Securities Act) will be entitled to contribution from any person or entity
who was not guilty of such fraudulent misrepresentation.
(e) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
1.10 Changes in Common Stock or Preferred Shares. If, and as often as, there
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is any change in the Common Stock or the Preferred Shares by way of a stock
split, stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock or
the Preferred Shares as so changed.
1.11 Rule 144 Reporting and Rule 144A Information. With a view to making
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available the benefits of certain rules and regulations of the Commission that
may at any time permit the resale of the Registrable Shares without
registration, the Company will:
(a) at all times use its commercially reasonable efforts to:
(i) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(ii) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and
the Exchange Act; and
(iii) furnish to each holder of Registrable Securities forthwith upon
request a written statement by the Company as to its compliance with
the reporting requirements of such Rule 144 and of the Securities Act
and the Exchange Act, a copy of the most recent annual or quarterly
report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably
obtainable by the Company as such holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing
such holder to sell any Registrable Securities without registration;
and
(b) at any time, at the request of any holder of Preferred Shares or
shares of Registrable Securities, make available to such holder and to any
prospective transferee of such Preferred Shares or shares of Registrable
Securities the information concerning the Company described in Rule
144A(d)(4) under the Securities Act.
1.12 Failure to Timely File Registration Statement. In the event the Company
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fails to timely file a registration statement with the Commission pursuant to
the terms and provisions of Section 1.3 hereof, the Company will then promptly
issue or cause to be issued to the Investor additional common stock purchase
warrants equal to 10% of the Warrants originally issued (and, on a pro-rata
basis, having the same various exercise prices per share as the Warrants
originally issued) for each quarter such registration statement is not filed
(the "Penalty Warrants"). The shares of the Company's Common Stock underlying
such Penalty Warrants shall have the same registration rights as the Registrable
Securities, and such other rights as may be provided pursuant to the
Shareholders' Agreement and the Company's Articles of Incorporation as may be
amended from time to time.
ARTICLE II
MISCELLANEOUS
2.1 Successors and Assigns. All covenants and agreements contained in this
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Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
(including without limitation transferees of any Preferred Shares, Warrants or
Penalty Warrants), whether so expressed or not; provided, however, that the
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rights conferred in this Agreement on the Investors shall only inure to the
benefit of a transferee of Preferred Shares and/or Warrants and/or Penalty
Warrants if notice of such transfer or assignment is given to the Company and
such Investor Transferee has agreed in writing to be bound by the terms of this
Agreement and the Shareholders Agreement.
2.2 Governing Law; Jurisdiction; Venue; Attorney's Fees. This Agreement is
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executed and delivered in the State of Florida, and this Agreement shall be
governed by and construed in accordance with the laws of the State of Florida
for all purposes and in all respects, without giving effect to the conflict or
choice of law provisions thereof. Any action and/or proceeding relating to or
arising out of this Agreement shall be brought solely in the federal and/or
state courts located in Miami-Dade County, Florida. The prevailing
party/parties in such action and/or proceeding shall be entitled to recover its
reasonable attorney's fees and costs from the other party.
2.3 Integration; Amendment. This Agreement and the other documents delivered
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pursuant hereto constitute the full and entire understanding and agreement among
the parties with regard to the subjects hereof and thereof, and supersede any
previous agreement or understanding between or among the parties with respect to
such subjects. No party shall be liable or bound to any other party in any
manner by any warranties, representations or covenants except as specifically
set forth herein or therein. Except as expressly provided
herein neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed by the party
against whom enforcement of any such amendment, waiver, discharge or termination
is sought. Any amendments, waivers, discharges or terminations of this Agreement
effected in accordance herewith shall be binding upon all parties hereto,
including those not signing such amendment, waiver, discharge or termination.
2.4 Notices. All notices, requests, demands, and other communications under
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this Agreement shall be in writing and shall be deemed to have been duly given
on the date of service if served personally on the party to whom notice is to be
given, on the date of transmittal of service via telecopier to the party to whom
notice is to be given (provided the sender of such notice via telecopier is
provided with a printed confirmation of same), or on the third day after mailing
if mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, or via overnight courier providing a
receipt and properly addressed as set forth on Schedule I hereto. Any party may
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change its address for purposes of this paragraph by giving notice of the new
address to each of the other parties in the manner set forth above.
2.5 Counterparts; Telecopier. This Agreement may be executed in any number of
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counterparts and via telecopier, each of which shall be enforceable against the
parties actually executing such counterparts, and all of which together shall
constitute one instrument.
2.6 Severability. In the event that any provision of this Agreement becomes or
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is declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision; provided that no such severability shall be effective if it
materially changes the economic benefit of this Agreement to any party.
2.7 Titles and Subtitles. The titles and subtitles used in this Agreement are
--------------------
used for convenience only and are not considered in construing or interpreting
this Agreement.
2.8 Rule of Construction that Ambiguities to be Construed Against the Drafter
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of the Document Not Applicable. In view of the fact that the parties to this
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Agreement have both been represented by their respective counsel in connection
herewith, the rule of construction that ambiguities shall be construed against
the drafter shall not be applicable.
IN WITNESS WHEREOF, the Company and the Investor have executed this Agreement as
of the day and year first above written.
THE COMPANY:
Intercallnet, Inc.
By:
Xxxxx Xxxxxxx, Chief Executive Officer
THE INVESTOR:
Stanford Venture Capital Holdings, Inc.
By:
_______________,_____________
Schedule I
If to the Company: Intercallnet, Inc.
0000 XX 0xx Xxx
Xxxx Xxxxxxxxxx, Xxxxxxx 3309
Telecopier: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Chief Executive Officer
with copies to: Xxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx
000 XX 0xx Xxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxx Xxxxxxxx, Esq.
If to the Investor: Stanford Venture Capital Holdings, Inc.
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx, President
with copies to: Hunton & Xxxxxxxx, P.A.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
