EXHIBIT 10.3
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as
of July 11, 2001, by and among College Bound Student Alliance, Inc., a
corporation duly incorporated and existing under the laws of the State of
Nevada (the "Company"), and the investor as named on the signature page hereto
(hereinafter referred to as "Investor") and amends and restates the
Registration Rights Agreement between the parties dated on or about May 25,
2000.
RECITALS:
WHEREAS, pursuant to the Company's offering ("Offering") of up to Thirty
Million Dollars ($30,000,000), excluding any funds paid upon exercise of the
Warrants, of Common Stock of the Company pursuant to that certain Investment
Agreement of even date herewith (the "Investment Agreement") between the
Company and the Investor, the Company has agreed to sell and the Investor has
agreed to purchase, from time to time as provided in the Investment Agreement,
shares of the Company's Common Stock for a maximum aggregate offering amount
of Thirty Million Dollars ($30,000,000);
WHEREAS, pursuant to the terms of the Investment Agreement, the Company
has agreed to issue to the Investor the Commitment Warrants and, in certain
events, Additional Warrants (as defined in the Warrant Antidilution Agreement
between the Company and Investor) to purchase a number of shares of Common
Stock, exercisable for five (5) years from their respective dates of issuance
(collectively, the "Warrants"); and
WHEREAS, pursuant to the terms of the Investment Agreement, the Company
has agreed to provide the Investor with certain registration rights with
respect to the Common Stock to be issued in the Offering and the Common Stock
issuable upon exercise of the Warrants as set forth in this Agreement; and
TERMS:
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement (including the
Recitals above), the following terms shall have the following meanings (such
meanings to be equally applicable to both singular and plural forms of the
terms defined):
"Additional Registration Statement" shall have the meaning set forth in
Section 3(b).
"Additional Warrants" shall have the meaning ascribed to it the Warrant
Antidilution Agreement between the Company and the Investor.
"Additional Warrant Shares" shall mean shares of Common Stock issuable
upon exercise of any Additional Warrant.
"Amended Registration Statement" shall have the meaning set forth in
Section 3(b).
"Business Day" shall have the meaning set forth in the Investment
Agreement.
"Closing Bid Price" shall have the meaning set forth in the Investment
Agreement.
"Commitment Warrant" shall have the meaning as set forth in the
Investment Agreement.
"Common Stock" shall mean the common stock, par value $0.001, of the
Company, or the common stock of any successor in interest to the
Company.
"Due Date" shall mean the date that is two hundred forty (240) days
after the date of this Agreement.
"Effective Date" shall have the meaning set forth in Section 2.4.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, together with the rules and regulations promulgated thereunder.
"Filing Deadline" shall mean August 31, 2001.
"Investment Agreement" shall have the meaning set forth in the Recitals
hereto.
"Investor" shall have the meaning set forth in the preamble to this
Agreement.
"Holder" shall mean Investor, and any other person or entity owning or
having the right to acquire Registrable Securities or any permitted
assignee;
"Piggyback Registration" and "Piggyback Registration Statement" shall
have the meaning set forth in Section 4.
"Put" shall have the meaning as set forth in the Investment Agreement.
"Register," "Registered," and "Registration" shall mean and refer to a
registration effected by preparing and filing a registration statement
or similar document in compliance with the Securities Act and pursuant
to Rule 415 under the Securities Act or any successor rule, and the
declaration or ordering of effectiveness of such registration statement
or document.
"Registrable Securities" shall have the meaning set forth in Section
2.1.
"Registration Statement" shall have the meaning set forth in Section
2.2.
"Rule 144" shall mean Rule 144, as amended, promulgated under the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended,
together with the rules and regulations promulgated thereunder.
"SEC" shall mean the Securities and Exchange Commission.
"Supplemental Registration Statement" shall have the meaning set forth
in Section 3(b).
"Transaction Documents" shall have the meaning set forth in the
Investment Agreement.
"Warrants" shall have the meaning set forth in the above Recitals.
"Warrant Shares" shall mean shares of Common Stock issuable upon
exercise of any Warrant.
2. Required Registration.
2.1 Registrable Securities. "Registrable Securities" shall mean
those shares of the Common Stock of the Company together with any capital
stock issued in replacement of, in exchange for or otherwise in respect of
such Common Stock, that are: (i) issuable or issued to the Investor pursuant
to the Investment Agreement, and or (ii) issuable or issued upon exercise of
the Commitment Warrants; provided, however, that notwithstanding the above,
the following shall not be considered Registrable Securities:
(a) any Common Stock which would otherwise be deemed to be
Registrable Securities, if and to the extent that those shares of Common Stock
may be resold in a public transaction without volume limitations or other
material restrictions without registration under the Securities Act, including
without limitation, pursuant to Rule 144 under the Securities Act; and
(b) any shares of Common Stock which have been sold in a
private transaction in which the transferor's rights under this Agreement are
not assigned.
2.2 Filing of Initial Registration Statement. The Company
shall, by the Filing Deadline, file a registration statement ("Registration
Statement") on Form SB-2 (or other suitable form, at the Company's discretion,
but subject to the reasonable approval of Investor), covering the resale of a
number of shares of Common Stock as Registrable Securities equal to at least
Eleven Million, Five Hundred Thousand (11,500,000) shares of Common Stock and
shall cover, to the extent allowed by applicable law, such indeterminate
number of additional shares of Common Stock that may be issued or become
issuable as Registrable Securities by the Company pursuant to Rule 416 of the
Securities Act. In the event that the Company has not filed the Registration
Statement by the Filing Deadline, then the Company shall pay to Investor an
amount equal to $500, in cash, for each Business Day after the Filing Deadline
until such Registration Statement is filed, payable within ten (10) Business
Days following the end of each calendar month in which such payments accrue.
2.3 [Intentionally Left Blank].
2.4 Registration Effective Date. The Company shall use its best
efforts to have the Registration Statement declared effective by the SEC (the
date of such effectiveness is referred to herein as the "Effective Date") by
the Due Date.
2.5 [Intentionally Left Blank].
2.6 Demand Registration for Additional Warrant Shares. Anytime
that the Company has issued to the Investor Additional Warrants representing
in excess of 200,000 Additional Warrant Shares (or, if less, a number of
Additional Warrant Shares which, when multiplied by the difference between the
closing price of the Company's Common Stock on a given day and the exercise
price then in effect, would exceed $200,000) which have not yet been
registered for resale, the Company shall promptly file a registration
statement (the "Additional Warrant Registration Statement") on any suitable
form, covering the resale of all then unregistered Additional Warrant Shares
and, to the extent allowed by applicable law, such indeterminate number of
additional shares of Common Stock that may be issued or become issuable as
Registrable Securities by the Company pursuant to Rule 416 of the Securities
Act.
2.7 Shelf Registration. The Registration Statement shall be
prepared as a "shelf" registration statement under Rule 415, and shall be
maintained effective until all Registrable Securities are resold pursuant to
the Registration Statement.
2.8 Supplemental Registration Statement. Anytime the
Registration Statement does not cover a sufficient number of shares of Common
Stock to cover all outstanding Registrable Securities, the Company shall
promptly prepare and file with the SEC such Supplemental Registration
Statement and the prospectus used in connection with such registration
statement as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all such Registrable Securities and
shall use its best efforts to cause such Supplemental Registration Statement
to be declared effective as soon as possible.
3. Obligations of the Company. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the
Company shall, as expeditiously and reasonably possible:
(a) Prepare and file with the SEC a Registration Statement with
respect to such Registrable Securities and use its best efforts to cause such
Registration Statement to become effective and to remain effective until all
Registrable Securities are resold pursuant to such Registration Statement,
notwithstanding any Termination or Automatic Termination (as each is defined
in the Investment Agreement) of the Investment Agreement.
(b) Prepare and file with the SEC such amendments and supplements
to such Registration Statement and the prospectus used in connection with such
Registration Statement ("Amended Registration Statement") or prepare and file
any additional registration statement ("Additional Registration Statement,"
together with the Amended Registration Statement, "Supplemental Registration
Statements") as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Supplemental Registration Statements or such prior registration statement
and to cover the resale of all Registrable Securities.
(c) Furnish to the Holders such numbers of copies, not to exceed
twenty (20), of a prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents as they may reasonably request in order to facilitate the
disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such Registration Statement under such other securities or Blue Sky
laws of the State of Georgia, and of all other jurisdictions where legally
required, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) [Intentionally Left Blank].
(f) As promptly as practicable after becoming aware of such event,
notify each Holder of Registrable Securities of the happening of any event of
which the Company has knowledge, as a result of which the prospectus included
in the 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, in light of the
circumstances under which they were made, not misleading, use its best efforts
promptly to prepare a supplement or amendment to the Registration Statement to
correct such untrue statement or omission, and deliver a number of copies, not
to exceed twenty (20), of such supplement or amendment to each Holder as such
Holder may reasonably request.
(g) Provide Holders with notice of the date that a Registration
Statement or any Supplemental Registration Statement registering the resale of
the Registrable Securities is declared effective by the SEC, and the date or
dates when the Registration Statement is no longer effective.
(h) Provide Holders and their representatives the opportunity and a
reasonable amount of time, based upon reasonable notice delivered by the
Company, to conduct a reasonable due diligence inquiry of Company's pertinent
financial and other records and make available its officers and directors for
questions regarding such information as it relates to information contained in
the Registration Statement.
(i) Provide Holders and their representatives the opportunity to
review the Registration Statement and all amendments or supplements thereto
prior to their filing with the SEC by giving the Holder at least five (5)
business days advance written notice prior to such filing.
(j) Provide each Holder with prompt notice of the issuance by the
SEC or any state securities commission or agency of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceeding for such purpose. The Company shall use its best efforts to
prevent the issuance of any stop order and, if any is issued, to obtain the
removal thereof at the earliest possible date.
(k) Use its best efforts to list the Registrable Securities covered
by the Registration Statement with all securities exchanges or markets on
which the Common Stock is then listed and prepare and file any required filing
with the NASD, American Stock Exchange, NYSE and any other exchange or market
on which the Common Stock is listed.
4. Piggyback Registration. If anytime prior to the date that the
Registration Statement is declared effective or during any Ineffective Period
(as defined in the Investment Agreement) the Company proposes to register
(including for this purpose a registration effected by the Company for
shareholders other than the Holders) any of its Common Stock under the
Securities Act in connection with the public offering of such securities
solely for cash (other than a registration relating solely for the sale of
securities to participants in a Company stock plan or a registration on Form
S-4 promulgated under the Securities Act or any successor or similar form
registering stock issuable upon a reclassification, upon a business
combination involving an exchange of securities or upon an exchange offer for
securities of the issuer or another entity), the Company shall, at such time,
promptly give each Holder written notice of such registration (a "Piggyback
Registration Statement"). Upon the written request of each Holder given by
fax within ten (10) days after mailing of such notice by the Company, the
Company shall cause to be included in such registration statement under the
Securities Act all of the Registrable Securities that each such Holder has
requested to be registered ("Piggyback Registration") to the extent such
inclusion does not violate the registration rights of any other security
holder of the Company granted prior to the date hereof; provided, however,
that nothing herein shall prevent the Company from withdrawing or abandoning
such registration statement prior to its effectiveness.
5. Limitation on Obligations to Register under a Piggyback
Registration. In the case of a Piggyback Registration pursuant to an
underwritten public offering by the Company, if the managing underwriter
determines and advises in writing that the inclusion in the related Piggyback
Registration Statement of all Registrable Securities proposed to be included
would interfere with the successful marketing of the securities proposed to be
registered by the Company, then the number of such Registrable Securities to
be included in such Piggyback Registration Statement, and all of the
Additional Warrant Shares that are then unregistered, in each case to the
extent any such Registrable Securities may be included in such Piggyback
Registration Statement, shall be allocated among all Holders who had requested
Piggyback Registration pursuant to the terms hereof, in the proportion that
the number of Registrable Securities which each such Holder seeks to register
bears to the total number of Registrable Securities sought to be included by
all Holders. If required by the managing underwriter of such an underwritten
public offering, the Holders shall enter into an agreement limiting the number
of Registrable Securities to be included in such Piggyback Registration
Statement and the terms, if any, regarding the future sale of such Registrable
Securities.
6. Dispute as to Registrable Securities. In the event the Company
believes that shares sought to be registered under Section 2 or Section 4 by
Holders do not constitute "Registrable Securities" by virtue of Section 2.1 of
this Agreement, and the status of those shares as Registrable Securities is
disputed, the Company shall provide, at its expense, an Opinion of Counsel,
reasonably acceptable to the Holders of the Securities at issue (and
satisfactory to the Company's transfer agent to permit the sale and transfer),
that those securities may be sold immediately, without volume limitation or
other material restrictions, without registration under the Securities Act, by
virtue of Rule 144 or similar provisions.
7. Furnish Information. At the Company's request, each Holder shall
furnish to the Company such information regarding Holder, the Registrable
Securities held by it, and the intended method of disposition of such
securities to the extent required to effect the registration of its
Registrable Securities or to determine that registration is not required
pursuant to Rule 144 or other applicable provision of the Securities Act. The
Company shall include all information provided by such Holder pursuant hereto
in the Registration Statement, substantially in the form supplied, except to
the extent such information is not permitted by law.
8. Expenses. All expenses, other than commissions and fees and
expenses of counsel to the selling Holders, incurred in connection with
registrations, filings or qualifications pursuant hereto, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company, shall be
borne by the Company.
9. Indemnification. In the event any Registrable Securities are
included in a Registration Statement under this Agreement:
(a) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder, the officers, directors, partners, legal
counsel, and accountants of each Holder, any underwriter (as defined in the
Securities Act, or as deemed by the Securities Exchange Commission, or as
indicated in a registration statement) for such Holder and each person, if
any, who controls such Holder or underwriter within the meaning of Section 15
of the Securities Act or the Exchange Act, against any losses, claims,
damages, or liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or state law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based upon any of the following statements or
omissions: (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, or (ii) 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 the Company will reimburse each such
Holder, officer or director, underwriter or controlling person for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability, or action; provided,
however, that the indemnity agreement contained in this subsection 9(a) shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage,
liability, or action to the extent that it arises out of or is based upon a
violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration
by any such Holder, officer, director, underwriter or controlling person;
provided however, that the above shall not relieve the Company from any other
liabilities which it might otherwise have.
(b) Each Holder of any securities included in such registration
being effected shall indemnify and hold harmless the Company, its directors
and officers, each underwriter and each other person, if any, who controls
(within the meaning of the Securities Act) the Company or such other
indemnified party, against any liability, joint or several, to which any such
indemnified party may become subject under the Securities Act or any other
statute or at common law, insofar as such liability (or actions in respect
thereof) arises out of or is based upon (i) any untrue statement or alleged
untrue statement of any material fact contained, on the effective date
thereof, in any registration statement under which securities were registered
under the Securities Act at the request of such Holder, any preliminary
prospectus or final prospectus contained therein, or any amendment or
supplement thereto, or (ii) any omission or alleged omission by such Holder to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in such registration statement, preliminary or final
prospectus, amendment or supplement thereto in reliance upon and in conformity
with information furnished in writing to the Company by such Holder
specifically for use therein. Such Holder shall reimburse any indemnified
party for any legal fees incurred in investigating or defending any such
liability; provided, however, that such Holder's obligations hereunder shall
be limited to an amount equal to the proceeds to such Holder of the securities
sold in any such registration; and provided further, that no Holder shall be
required to indemnify any party against any liability arising from any untrue
or misleading statement or omission contained in any preliminary prospectus if
such deficiency is corrected in the final prospectus or for any liability
which arises out of the failure of such party to deliver a prospectus as
required by the Securities Act.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 9,
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, the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
shall have the right to retain its own counsel, with the reasonably incurred
fees and expenses of one such counsel to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential
conflicting interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 9, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
(d) In the event that the indemnity provided in paragraphs (a)
and/or (b) of this Section 9 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and each Holder
agree to contribute to the aggregate claims, losses, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Holders may be subject in such proportion as is
appropriate to reflect the relative fault of the Company and the Holders in
connection with the statements or omissions which resulted in such Losses.
Relative fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Company or by the
Holders. The Company and the Holders agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any other
method of allocation that does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 9, each person who controls a
Holder of Registrable Securities within the meaning of either the Securities
Act or the Exchange Act and each director, officer, partner, employee and
agent of a Holder shall have the same rights to contribution as such Holder,
and each person who controls the Company within the meaning of either the
Securities Act or the Exchange Act and each director and officer of the
Company shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The obligations of the Company and Holders under this
Section 9 shall survive the resale, if any, of the Common Stock, the
completion of any offering of Registrable Securities in a Registration
Statement under this Agreement, and otherwise.
10. Reports Under Exchange Act. With a view to making available to
the Holders the benefits of Rule 144 promulgated under the Securities Act and
any other rule or regulation of the SEC that may at any time permit a Holder
to sell securities of the Company to the public without registration, the
Company agrees to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144; and
(b) use its best efforts to file with the SEC in a timely manner
all reports and other documents required of the Company under the Securities
Act and the Exchange Act.
11. Amendment of Registration Rights. Any provision 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 written
consent of each Holder affected thereby. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder, each future
Holder, and the Company.
12. Notices. All notices required or permitted under this Agreement
shall be made in writing signed by the party making the same, shall specify
the section under this Agreement pursuant to which it is given, and shall be
addressed if to (i) the Company at: College Bound Student Alliance, Inc.;
Attn: Xxxxxx X. Xxxxx, CEO; 000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx, XX
00000; Telephone: (000) 000-0000, Facsimile: (000) 000-0000 (or at such other
location as directed by the Company in writing) and (ii) the Holders at their
respective last address as the party as shown on the records of the Company.
Any notice, except as otherwise provided in this Agreement, shall be made by
fax and shall be deemed given at the time of transmission of the fax.
13. Termination. This Agreement shall terminate on the date all
Registrable Securities cease to exist (as that term is defined in Section 2.1
hereof); but without prejudice to (i) the parties' rights and obligations
arising from breaches of this Agreement occurring prior to such termination,
or (ii) other indemnification obligations under this Agreement.
14. Assignment. No assignment, transfer or delegation, whether by
operation of law or otherwise, of any rights or obligations under this
Agreement by the Company or any Holder, respectively, shall be made without
the prior written consent of the majority in interest of the Holders or the
Company, respectively; provided that the rights of a Holder may be transferred
to a subsequent holder of the Holder's Registrable Securities (provided such
transferee shall provide to the Company, together with or prior to such
transferee's request to have such Registrable Securities included in a
Registration, a writing executed by such transferee agreeing to be bound as a
Holder by the terms of this Agreement), and the Company hereby agrees to file
an amended registration statement including such transferee or a selling
security holder thereunder; and provided further that the Company may transfer
its rights and obligations under this Agreement to a purchaser of all or a
substantial portion of its business if the obligations of the Company under
this Agreement are assumed in connection with such transfer, either by merger
or other operation of law or by specific assumption executed by the
transferee.
15. Arbitration; Governing Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of Georgia
applicable to agreements made in and wholly to be performed in that
jurisdiction, except for matters arising under the Act or the Securities
Exchange Act of 1934, which matters shall be construed and interpreted in
accordance with such laws. Any controversy or claim arising out of or related
to the Transaction Documents or the breach thereof, shall be settled by
binding arbitration in Atlanta, Georgia in accordance with the Expedited
Procedures (Rules 53-57) of the Commercial Arbitration Rules of the American
Arbitration Association ("AAA"). A proceeding shall be commenced upon written
demand by Company or any Investor to the other. The arbitrator(s) shall enter
a judgment by default against any party, which fails or refuses to appear in
any properly noticed arbitration proceeding. The proceeding shall be
conducted by one (1) arbitrator, unless the amount alleged to be in dispute
exceeds two hundred fifty thousand dollars ($250,000), in which case three (3)
arbitrators shall preside. The arbitrator(s) will be chosen by the parties
from a list provided by the AAA, and if they are unable to agree within ten
(10) days, the AAA shall select the arbitrator(s). The arbitrators must be
experts in securities law and financial transactions. The arbitrators shall
assess costs and expenses of the arbitration, including all attorneys' and
experts' fees, as the arbitrators believe is appropriate in light of the
merits of the parties' respective positions in the issues in dispute. Each
party submits irrevocably to the jurisdiction of any state court sitting in
Atlanta, Georgia or to the United States District Court sitting in Georgia for
purposes of enforcement of any discovery order, judgment or award in
connection with such arbitration. The award of the arbitrator(s) shall be
final and binding upon the parties and may be enforced in any court having
jurisdiction. The arbitration shall be held in such place as set by the
arbitrator(s) in accordance with Rule 55.
Although the parties, as expressed above, agree that all claims,
including claims that are equitable in nature, for example specific
performance, shall initially be prosecuted in the binding arbitration
procedure outlined above, if the arbitration panel dismisses or otherwise
fails to entertain any or all of the equitable claims asserted by reason of
the fact that it lacks jurisdiction, power and/or authority to consider such
claims and/or direct the remedy requested, then, in only that event, will the
parties have the right to initiate litigation respecting such equitable claims
or remedies. The forum for such equitable relief shall be in either a state
or federal court sitting in Atlanta, Georgia. Each party waives any right to
a trial by jury, assuming such right exists in an equitable proceeding, and
irrevocably submits to the jurisdiction of said Georgia court. Georgia law
shall govern both the proceeding as well as the interpretation and
construction of this Agreement and the transaction as a whole.
16. Execution in Counterparts Permitted. This Agreement may be
executed in any number of counterparts, each of which shall be enforceable
against the parties actually executing such counterparts, and all of which
together shall constitute one (1) instrument.
17. Specific Performance. The Holder shall be entitled to the remedy
of specific performance in the event of the Company's breach of this
Agreement, the parties agreeing that a remedy at law would be inadequate.
18. Indemnity. Each party shall indemnify each other party against
any and all claims, damages (including reasonable attorney's fees), and
expenses arising out of the first party's breach of any of the terms of this
Agreement.
19. Entire Agreement; Written Amendments Required. This Agreement,
including the Exhibits attached hereto, the Investment Agreement, the Common
Stock certificates, and the other documents delivered pursuant hereto
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof, and 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.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
this 11th day of July, 2001.
COLLEGE BOUND STUDENT ALLIANCE, INC.
By:
Xxxxxx X. Xxxxx, Chief Executive Officer
Address: 000 Xxxxx Xxxxxxx Xxxxxxx, Xxx. 000
Xxxxxxxx, XX 00000
Telephone (000) 000-0000
Facsimile (000) 000-0000
INVESTOR:
XXXXXX PRIVATE EQUITY, LLC.
By: ________________________________
Xxxx X. Xxxxxx, Manager
Address: 000 Xxxxxxxx Xxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
