EXHIBIT 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") dated as of the 15th day
of December, 1997, is by and between Endeavor Technologies, Inc., a Georgia
corporation (the "Company"), Premiere Technologies, Inc., a Georgia corporation
("Premiere"), and each other Participating Shareholder designated by the Company
and signing in the space provided at the end of this Agreement.
WITNESSETH:
WHEREAS, Premiere is the holder of 1,100,000 issued and outstanding shares
of Series E Common Stock, without par value, subject to possible adjustment,
which shares were acquired pursuant to that certain Investor's Agreement dated
as of the date hereof between the Company and Premiere (the "Investor's
Agreement"); and
WHEREAS, pursuant to the Investor's Agreement, the Company has issued and
delivered to Premiere a Warrant for the purchase of up to 1,000,000 additional
shares of Series E Common Stock, subject to possible adjustment as provided in
the Warrant; and
WHEREAS, the Articles of Incorporation of the Company, as amended, provide
that each share of Series E Common Stock will become and be identical to one
share of Series A Common Stock, whereupon all such shares of the Company will be
known as "Common Stock" without any series designation, in the event of an
"Initial Public Offering" as defined therein;
WHEREAS, Premiere and the Company desire to evidence their agreement
regarding certain matters related to such shares of Common Stock;
NOW, THEREFORE, in consideration of the mutual agreements and promises
herein contained and other valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Premiere and the Company, intending to be
legally bound, do hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Estimated Offering Price" means an estimate of the gross proceeds, before
underwriting discounts and commissions, reasonably obtainable from the sale of
Registrable Stock in an Underwritten Public Offering, as determined by either
the Board of Directors of
the Company or an underwriter of national reputation reasonably acceptable to
the Company, based upon the highest closing price or bid price, as the case may
be, during the 30-day period preceding the applicable date of determination in
the principal trading market for the Common Stock, or, if there shall be no
active trading market for the Common Stock, based on all other relevant
considerations.
"Participating Shareholder" means each Person who holds Participating Stock
as shown at the end of this Agreement, each direct or successive transferee who
acquires all (but not less than all) of the shares of Participating Stock
previously held by such Person and agrees to be bound by the terms of this
Agreement pursuant to a form of undertaking acceptable to the Company, and any
other holder of Participating Stock who the Company, in its discretion, agrees
to designate as a "Participating Shareholder" for purposes of this Agreement. A
"majority in interest" of all or specific Participating Shareholders shall mean
Participating Shareholders holding shares of Participating Stock (considered as
a single class for such purpose) constituting a majority of the shares of
Participating Stock held by all such Participating Shareholders.
"Participating Stock" means the shares of Series B, Series C, Series D, and
Series E Common Stock, no par value, of the Company issued and outstanding from
time to time, and any other class or series of stock hereafter created or newly
designated by the Company, or, following the occurrence of a Primary Offering,
the issued and outstanding shares of Common Stock, without series designation,
which such shares of Series B, Series C, Series D, and Series E Common Stock
will be and become, and into which or for which the shares of such other class
or series may be converted or exchanged.
"Person" means any natural person or any corporation, partnership, trust or
other legal entity.
"Primary Offering" means an Initial Public Offering as defined in the
Company's Articles of Incorporation, as amended, upon the execution date of this
Agreement, to wit "the offer and sale by the Corporation of its equity
securities in a transaction underwritten by an investment banking firm following
the completion of which (i) such equity securities are listed for trading on any
national securities exchange or (ii) there are at least two market makers who
are making a market in such equity securities through the Nasdaq National Market
System.
"Registrable Stock" means shares of Common Stock. Notwithstanding anything
to the contrary in this Agreement, the only securities that the Company shall be
required to register pursuant to this Agreement shall be shares of Common Stock.
The terms "register," "registered," and "registration" refer to a
registration effected by preparing the filing of a registration statement in
compliance with the Securities Act, and the declaration or order by the
Commission of the effectiveness of such registration statement.
"Secondary Offering" means an Underwritten Public Offering by the Company,
including an offering effected pursuant to Section 2.1 hereof, but not including
a Primary Offering.
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"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"Series E Common Stock" means the Series E Common Stock, no par value, of
the Company.
"Underwritten Public Offering" means a public offering of Common Stock for
cash which is offered and sold in a registered transaction on a firm commitment
underwritten basis through one or more underwriters, all pursuant to an
underwriting agreement between the Company and such underwriters.
ARTICLE II
REGISTRATION RIGHTS
2.1 Demand Registration Rights. At any one (1) time at least six (6)
months after the completion of a Primary Offering, upon notice from a majority
in interest of all Participating Shareholders requesting registration of
Participating Stock collectively having an Estimated Offering Price of at least
ten million dollars (U.S. $10,000,000) (the "Request Notice"), the Company
agrees to:
(i) promptly give written notice of the proposed registration,
qualification or compliance (the "Notice of Proposed Registration")
to all other Participating Shareholders so they have an opportunity
to consider joining in such notice, which they may do at their
election within three (3) weeks after receipt of the Notice of
Proposed Registration;
(ii) use its reasonable efforts to prepare and file a registration
statement covering the Participating Stock so requested to be
registered within ninety (90) days after such Request Notice is first
received; and
(iii) use its reasonable efforts to effect, as soon as practicable, all
such registrations, qualifications and compliances (including,
without limitation, the execution of an undertaking to file post-
effective amendments, appropriate qualifications under the applicable
blue sky or other state securities laws and appropriate compliance
with exemptive regulations issued under the Securities Act and any
other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution
of all or such portion of such requesting Participating Shareholders'
shares of Participating Stock as is specified in the Request Notice,
together with such other Registrable Stock as the Company may elect
to include in such transaction.
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2.1.1 Underwriting. The right of each Participating Shareholder to
registration pursuant to Section 2.1 shall be conditioned upon such
Participating Shareholder's participation in the Underwritten Public Offering
and the inclusion of such Participating Shareholder's Participating Stock in the
Underwritten Public Offering to the extent provided herein. The requesting
Participating Shareholders shall include in the Request Notice the name of the
managing underwriter, if any, whom a majority in interest of such requesting
Participating Shareholders would propose to employ in connection with the public
offering proposed to be made pursuant to the registration requested; provided
that if the Board of Directors of the Company reasonably objects to the managing
underwriter proposed by the requesting Participating Shareholders, the
requesting Participating Shareholders shall propose another managing underwriter
that is reasonably acceptable to the Board of Directors of the Company. The
Company shall include in the Notice or Proposed Registration the name of such
underwriter to be employed, if then determined.
2.1.2 Limitation. Notwithstanding any other provision of this Agreement,
if in connection with an Underwritten Public Offering initiated by the
Participating Shareholders as contemplated by this Section 2.1, the managing
underwriter advises the Company that marketing factors warrant a limitation of
the number of shares to be underwritten, then the number of shares of
Registrable Stock that may be included in the registration and underwriting
shall be allocated among all holders of Registrable Stock (including the
Company) in proportion, as nearly as practical, to the respective number of
Registrable Stock that were proposed to be sold in the registration and
underwriting. No Registrable Stock excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
2.1.3 Postponement of Registration. The Company shall be entitled to
postpone for a reasonable period of time (but, except as otherwise provided in
this Agreement, not exceeding one hundred eighty (180) days) the filing of any
registration statement otherwise required to be prepared and filed by it
pursuant to this Section 2.1 if the Company determines, in good faith and in the
exercise of its reasonable judgment, that such action would interfere with any
material financing, acquisition, corporate reorganization or other transaction
involving the Company then pending or contemplated.
2.1.4 Time Factors. The Company shall additionally be entitled to
postpone the filing of any registration statement otherwise required to be
prepared and filed by it pursuant to this Section 2.1 so that no registration
under this Section 2.1 occurs within six (6) months after the effective date of
any other registration statement filed by the Company or within three (3) months
after the completion of the sale of all securities included in any other
registration statement filed by the Company.
2.1.5 Withdrawal. If a limitation under Section 2.1.2 or a postponement
under Section 2.1.3 or Section 2.1.4 is unacceptable, a majority in interest of
the Participating Shareholders who requested the registration may withdraw such
request for registration by giving written notice to the Company within thirty
(30) days after receipt of notice of such limitation or postponement. In the
event of such withdrawal, such request shall not be counted for purposes of
Section 2.1 hereof.
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2.1.6 Non-Effected Registrations. If a registration statement requested
pursuant to this Section 2.1 does not become effective within twelve (12) months
after the initial filing thereof as a result of any reason other than a material
adverse development in the business or condition (financial or other) of the
Company or other acts or matters within the control of the Company, or if such
registration statement is abandoned or withdrawn at the request of a majority in
interest of the Participating Shareholders who requested such registration,
then, unless the Participating Shareholders who requested such registration,
promptly upon receipt of a request therefor, supported by an invoice setting
forth the expenses in reasonable detail, reimburse the Company for the
registration expenses in respect of such registration statement, the Company
shall be deemed to have satisfied its obligation pursuant to this Section 2.1.
2.1.7 Sales by the Company or Other Persons. The Company shall be entitled
to include in any registration statement referred to in this Section 2.1 shares
of Common Stock to be sold by the Company for its own account or other then
existing shareholders for their own account.
2.1.8 Other Conditions. Notwithstanding anything in this Agreement to the
contrary:
(i) the Company shall not be required to register Participating Stock
pursuant to this Section 2.1 unless the Estimated Offering Price for
all shares of Registrable Stock, including, without limitation, any
to be sold for the account of the Company and all other then
existing shareholders of the Company, changes so as to be less than
ten million dollars (U.S. $10,000,000) at any time prior to
completion of the registration and underwriting;
(ii) the Company shall not be required to file a registration statement
requested pursuant to this Section 2.1 on any date which shall be
after the last day of a fiscal year of the Company and prior to the
date on which the Company's audited financial statements for such
fiscal year are first available; and
(iii) the Company shall not be obligated to take any action to effect any
registration, qualification or compliance pursuant to Section 2.1 in
any particular jurisdiction in which the Company would be required
to execute a general consent to service of process or to register as
a dealer or to cause any officer or employee of the Company to
register as a salesman in effecting such registration, qualification
or compliance.
2.2 Piggyback Registration. If at any time or from time to time after
the date hereof, the Company determines to register any of its Common Stock in
any Underwritten Public Offering for its own account (excluding a Primary
Offering, excluding a Secondary Offering initiated at the request of the
Participating Shareholders pursuant to Section 2.1, and excluding an offering
that is registered on Commission Forms S-4 and S-8 or another form not available
for registering the Participating Stock of the Participating Shareholders), then
the Company will:
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(i) promptly give to each Participating Shareholder written notice thereof
("Notice of Proposed Registration"); and
(ii) use its reasonable efforts to include in such registration (and any
related qualification under blue sky laws or other compliance), and in
any Underwritten Public Offering involved therein, all the
Participating Stock specified in any written request or requests by
Participating Shareholders ("Notice of Participating") received by the
Company within three (3) weeks after such Notice of Proposed
Registration is given.
2.2.1 Underwriting. The right of each Participating Shareholder to
registration pursuant to Section 2.2 shall be conditioned upon such
Participating Shareholder's participation in the Underwritten Public
Offering and the inclusion of such Participating Shareholder's
Participating Stock in the Underwritten Public Offering to the extent
provided herein.
2.2.2 Limitation. Notwithstanding any other provision of this
Agreement to the contrary, if, in connection with an Underwritten Public
Offering initiated by the Company as contemplated by this Section 2.2, the
managing underwriter advises the Company that marketing factors warrant a
limitation of the number of shares to be underwritten, then the number of
shares of Registrable Stock that may be included in the registration and
underwriting shall be allocated first to the Company, and only then to the
holders of Registrable Stock other than the Company, such allocation to
such others to be in proportion, as nearly as practical, to the respective
number of Registrable Stock that such holders have requested to sell in the
registration and underwriting. No Registrable Stock excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration.
2.2.3 Termination of Registration by Company. Notwithstanding any
other provision of this Agreement, at any time before or after the filing
or a registration statement that is subject to Section 2.2 hereof, the
Company may, in its sole discretion, abandon or terminate such registration
without the consent of any Participating Shareholder.
2.2.4 Form of Registration. The Company shall not be required to
include Registrable Stock in the securities covered by a registration
statement on any form which limits the amount of securities which may be
registered by the issuer and/or selling security holders, if, and to the
extent that such inclusion would make the use of such form unavailable, so
long as no other shares are to be included in such securities for the
account of any Person other than the Company.
2.2.5 Termination of Piggyback Rights. Notwithstanding anything in
this Agreement to the contrary, this Section 2.2 shall not apply to any
registration initiated more than three (3) years after the Company has
completed a Primary Offering, or after such time as the Company has given
the Participating Shareholders a Notice of Proposed Registration in
connection with four (4) separate registrations in which the
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Participating Shareholders were entitled to include Participating Stock,
whichever is later.
2.3 Standstill. In connection with a Primary Offering, and in connection
with each Secondary Offering pursuant to a registration statement for which a
Participating Shareholder is or may be eligible to include Participating Stock
pursuant to this Agreement, each Participating Shareholder shall refrain from
selling any Registrable Stock not included in such registration during the
period of distribution of securities by such underwriters pursuant to such
registration and the period in which the underwriting syndicate participates in
the after market; provided, however, that unless the managing underwriter shall
determine that so to do would be detrimental to such offering, each
Participating Shareholder shall, in any event, be entitled to sell its
Registrable Stock in connection with such registration commencing ninety (90)
days after the effective date of such registration statement.
2.4 Registration Expenses. All expenses of any registrations permitted
pursuant to this Agreement and of all other offerings by the Company (including,
but not limited to, the expenses of any interim audit required by any
underwriters, any qualifications under the blue sky or other state securities
laws, compliance with governmental requirements of preparing and filing any
post-effective amendments required for the lawful distribution of any securities
to the public in connection with registration, of supplying prospectuses,
offering circulars or other documents, but excluding underwriting discounts and
selling commissions applicable to the sale of the Registrable Stock and fees and
expenses of counsel employed by the Participating Shareholders) will be paid by
the Company to the fullest extent permitted by applicable government
authorities.
2.5 Registration Procedures. In the case of such registration,
qualification or compliance effected by the Company pursuant to Article II in
which Participating Stock is included, the Company will, at its expense:
(a) prepare and file with the Commission a registration statement
with respect to the Registrable Stock, and use its reasonable efforts to
cause such registration statement to become and remain effective for such
period as may be reasonably necessary to effect the sale thereof, not to
exceed nine (9) months;
(b) prepare and file with the Commission such amendments to such
registration statement and supplements to the prospectus contained therein
as may be necessary to keep such registration statement effective for such
period as may be reasonably necessary to effect the sale of such
Registrable Stock, not to exceed nine (9) months; and
(c) use its reasonable efforts to register or qualify the Registrable
Stock covered by such registration statement under such state securities or
blue sky laws of such jurisdictions as such Participating Shareholders may
reasonably request in writing within twenty (20) days following the
original filing of such registration statement; provided, however, that in
the case of an Underwritten Public Offering, the managing
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underwriter shall advise the Company with respect to blue sky qualification
and related matters.
2.6 Related Registration Matters. The Company will use its reasonable
efforts to enter into an underwriting agreement in connection with any
registration subject to the provisions of Article II hereof in which any
Participating Stock is included, which agreement shall contain such terms,
provisions and agreements as are customary and appropriate for such
registration. All Participating Shareholders proposing to distribute their
securities through such Underwritten Public Offering (together with the Company
and any other then existing shareholders distributing their securities through
such underwriting) shall likewise enter into such underwriting agreement. In
connection with any Underwritten Public Offering in which any Participating
Stock is included, to the extent not provided in the underwriting agreement
related to such offering, the Company shall use its reasonable efforts to:
(a) List the Common Stock included in such offering on any national
securities exchange on which the Common Stock is approved for listing;
(b) Engage a bank or other company to act as transfer agent and
registrar for the Common Stock, unless the Company has already engaged a
transfer agent and registrar;
(c) Cause customary opinions of counsel, comfort letters of
accountants and other appropriate documents to be delivered by
representatives of the company; and
(d) As soon as practicable after the effective date of the
registration statement, and, in any event, within 16 months thereafter,
make "generally available to its securities holders" (within the meaning of
Rule 158 under the Securities Act) an earnings statement (which need not be
audited) complying with Section 11(a) of the Securities Act and covering a
period of at least 12 consecutive months beginning after the effective date
of the registration statement.
2.7 Indemnification and Contribution.
(a) In the case of each registration effected by the Company pursuant
to this Agreement in which any Participating Stock is included, the Company
(sometimes referred to as the "Indemnifying Person") agrees to indemnify
and hold harmless such Participating Shareholder, its officers and
partners, each underwriter of the shares of Common Stock so registered and
each Person who controls any such underwriter (sometimes referred to
individually as an "Indemnified Person") within the meaning of Section 15
of the Securities Act, against any and all losses, claims, damages or
liabilities to which they or any of them may become subject under the
Securities Act or any other statute or common law, including any amount
paid in settlement of any litigation, commenced or threatened, if such
settlement is effected with the written consent of the Company, and to
reimburse them for any reasonable legal or other reasonable expenses
incurred by them in connection with the investigation of any claims and
defense of any actions (subject to subsection (c) of this Section 2.7),
insofar as any
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such losses, claims, damages, liabilities or actions arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in the registration statement, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereto,
or in any Blue Sky application, or 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; provided, however, that,
notwithstanding the foregoing, the Company may agree to indemnify each such
underwriter and Person who so controls such underwriter to such other
extent as the Company and such underwriter shall agree; and provided
further, however, that the indemnification agreement contained in this
subsection (a) shall not (i) apply to such losses, claims, damages,
liabilities or actions arising out of, or based upon, any such untrue
statement or alleged untrue statement, or any such omission or alleged
omission, if such statement or omission was made in reliance upon and in
conformity with information furnished to the Company in writing by a
Participating Shareholder or such underwriter claiming rights of
indemnification pursuant to this Section 2.7 for use in connection with the
preparation of the registration statement or any preliminary prospectus or
prospectus contained in the registration statement or any such amendment
thereof or supplement thereto; (ii) inure to the benefit of any underwriter
(or to the benefit of any Person controlling such underwriter) from whom
the Person asserting any such losses, claims, damages, expenses or
liabilities purchased the securities which are the subject thereof, if such
underwriter failed to send or give a copy of the final prospectus, as then
amended or supplemented, to such Person and if the untrue statement or
omission alleged had been corrected in such final prospectus; or (iii)
inure to the benefit of any Person to the extent such Person's claim for
indemnification hereunder arises out of or is based on any violation of
such Person of applicable law.
(b) In the case of each registration effected by the Company pursuant
to this Agreement in which any Participating Stock is included, the
Participating Shareholders holding such Participating Stock shall be
obligated, and shall cause each underwriter of the shares of Common Stock
to be registered on behalf of such Person (sometimes referred to
individually as an "Indemnifying Person") to be obligated, in the same
manner and to the same extent as set forth in subsection (a) of this
Section 2.7, to indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of Section 15 of the
Securities Act, its directors and officers (sometimes referred to
individually as an "Indemnified Person"), with respect to any untrue
statement or alleged untrue statement in, or omission or alleged omission
from, such registration statement or any post-effective amendment thereof
or any preliminary prospectus or final prospectus (as amended or
supplemented, if amended or supplemented as aforesaid) contained in such
registration statement, if such statement or omission was made in reliance
upon and in conformity with information furnished in writing to the Company
by such Indemnifying Person for use in connection with the preparation of
such registration statement or any preliminary prospectus or final
prospectus contained in such registration statement or any such amendment
thereof or supplement thereto.
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(c) Each Indemnified Person pursuant to this Section 2.7 will,
promptly after its receipt of written notice of the commencement of any
action against such Indemnified Person in respect of which indemnity may be
sought from an Indemnifying Person under this Section 2.7, notify the
Indemnifying Person in writing of the commencement thereof and undertake to
provide such reasonable cooperation as may be sought by the Indemnifying
Person for the defense or other resolution of such action. The omission of
any Indemnified Person so to notify an Indemnifying Person of the
commencement of any such action shall relieve the Indemnifying Person from
any liability in respect of such action which it may have to such
Indemnified Person on account of the indemnity agreement contained in this
Section 2.7, but shall not relieve the Indemnifying Person from any other
liability which it may have to such Indemnified Person. If any such action
shall be brought against any Indemnified Person and it shall notify an
Indemnifying Person of the commencement thereof, the Indemnifying Person
shall be entitled to participate therein and, to the extent it may desire,
jointly with any other Indemnifying Persons similarly notified, to assume
the defense thereof with counsel reasonably satisfactory to such
Indemnified Person, and after notice from the Indemnifying Person to such
Indemnified Person of its election so to assume the defense thereof, the
Indemnifying Person will not be liable to such Indemnified Person under
this Section 2.7 for any legal or other expenses subsequently incurred by
such Indemnified Person in connection with the defense thereof other than
reasonable costs of investigation unless (i) the Indemnified Person shall
have employed counsel in an action in which the indemnified party and
indemnifying party are both defendants and there is a conflict of interest
between such parties that would prevent counsel from adequately
representing both parties, (ii) the Indemnifying Person shall not have
employed counsel satisfactory within the exercise of reasonable judgment of
the Indemnified Person to represent the Indemnified Person within
reasonable time after the notice of the commencement of the action or (iii)
the Indemnifying Person has authorized the employment of counsel for the
Indemnified Person at the expense of the Indemnifying Person. The
undertaking contained in this Section 2.7 shall be in addition to any
liabilities which the Indemnifying Person may have pursuant to law.
2.8 Information Provided by Participating Shareholders. Each Participating
Shareholder requesting Participating Stock to be included in any registration
shall furnish to the Company such information regarding such Participating
Shareholder and the distribution proposed by such Participating Shareholder as
the Company may request and as shall be reasonably required in connection with
any registration, qualification or compliance referred to in Article II.
ARTICLE III
MISCELLANEOUS
3.1 Remedies. Each party hereto acknowledges that a remedy at law for any
breach or attempted breach of this Agreement will be inadequate, agrees that
each other party hereto shall be entitled to specific performance and injunctive
and other equitable relief in case of any
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such breach or attempted breach, and further agrees to waive any requirement for
the securing or posting of any bond in connection with the obtaining of any such
injunctive or any other equitable relief.
3.2 Amendment. This Agreement may be amended from time to time by an
instrument in writing signed by the Company and a majority in interest of the
Participating Shareholders.
3.3 Notices. Any notice, request, reply instruction or other communication
(herein severally and collectively called "notice") in this Agreement provided
or permitted to be given to the Company or to any Participating Shareholder must
be given in writing and may be given or served by depositing the same in the
United States mail, in certified or registered form postage fully prepaid,
addressed to the party or parties to be notified, with return postage fully
requested, or by delivering the same in person to such party or parties. Notice
deposited in the United States mail, mailed in the manner hereinabove described,
shall be effective upon deposit. Notice given in any other manner shall be
effective only if and when received by the party to be notified.
3.4 Governing Law. This Agreement shall be subject to and governed by the
laws of the State of Georgia.
3.5 Jurisdiction. Actions to enforce or interpret the provisions of this
Agreement shall be filed in a state court of the State of Georgia or a federal
district court of the Northern District of Georgia. Each party irrevocably
waives any objection it may have to the laying of venue of any suit, action or
proceeding arising out of or relating hereto brought in any such court,
irrevocably waives any claim that any such suit, action or proceeding so brought
has been brought in an inconvenient forum and further waives the right to object
that such court does not have jurisdiction over such party. No party shall bring
a suit, action or proceeding in respect of this Agreement in any other
jurisdiction than as aforesaid.
3.6 Successors and Assigns. The rights and obligations of the Company
hereunder shall be binding upon and inure to the benefit of the Company, its
successors and assigns. The rights and obligations of the Participating
Shareholders hereunder shall be binding upon and inure to the benefit of only
such further Persons as may qualify as Participating Shareholders hereunder.
3.7 Invalid Provisions. Should any portion of this Agreement be adjudged
or held to be invalid, unenforceable or void, such holding shall not have the
effect of invalidating or voiding the remainder of this Agreement and the
parties hereby agree that the portion so held invalid, unenforceable or void
shall, if possible, be deemed amended or reduced in scope, or to otherwise be
stricken from this Agreement to the extent required for the purposes of validity
and enforcement thereof.
3.8 Section Headings. The section and paragraph headings contained herein
are for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement.
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3.9 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute only one
instrument.
3.10 Adjustments. In the event the Company declares a stock split, stock
dividend or other distribution of capital stock in respect of, or issue capital
stock in replacement of or exchange for, shares of Common Stock, such shares
shall be subject to this Agreement and the provisions of this Agreement
providing for calculations based on the number of shares of Common Stock shall
include the shares issued in respect of the Common Stock.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed on
its behalf and its corporate seal to be hereunto affixed by its duly authorized
officers and the stockholders have caused this Agreement to be executed by the
appropriate authorized person, as of the day and year first above written.
ENDEAVOR TECHNOLOGIES, INC.
By: /s/ W. Xxxxxxx Xxxxxx
-----------------------
Chief Operating Officer
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PARTICIPATING SHAREHOLDERS:
PREMIERE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, Senior Vice President
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By: ___________________________________
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By: ___________________________________
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