EXHIBIT A
EASYLINK SERVICES CORPORATION
REGISTRATION RIGHTS AGREEMENT
Dated as of June 1, 2001
EASYLINK SERVICES CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of June 1, 2001 (the
"Agreement") by and between EasyLink Services Corporation, a Delaware
corporation ("EasyLink") and GATX Technology Services Corporation, a Delaware
corporation ("GATX"). One or more additional securityholders of EasyLink may
become a party to this Agreement by signing an Accession Agreement agreeing to
bound by the terms and conditions hereof; in such case the securities specified
therein shall be deemed to be Registrable Securities (as defined below)
hereunder. As used herein, "Holders" shall mean GATX and such securityholders
who enter into an Accession Agreement with EasyLink, and "Holder" shall mean any
one of such Holders.
RECITALS
A. EasyLink desires to sell and issue to GATX and to the other Holders
and GATX and such other Holders desire to purchase from EasyLink shares (the
"Shares") of Class A common stock, par value $.01 per share ("Class A Common
Stock"), Convertible Notes (the "Notes") and warrants ("Warrants"; the Shares,
the Warrants and the Notes are sometimes collectively referred to herein as the
"Securities") to purchase Class A common stock pursuant to one or more
modification and/or restructuring agreements (the "Restructuring Agreements").
B. In order to induce GATX to purchase the Securities pursuant to the
Restructuring Agreements, EasyLink desires to grant to GATX and the other
Holders certain registration rights with respect to the Shares and all of the
shares of Class A common stock issuable upon conversion of the Notes or upon
exercise of the Warrants (the "Conversion Shares"), all on the terms and
conditions set forth herein.
In consideration of the foregoing and the promises and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
following respective meanings:
"Act" means the U.S. Securities Act of 1933, as amended from
time to time.
"Agreement" means this Agreement, as the same may be amended
or supplemented from time to time in accordance with the terms hereof.
"Class A Common Stock" has the meaning set forth in the
recitals above.
"Conversion Shares" has the meaning set forth in the recitals
above.
"Mandatory Registration" has the meaning set forth in Section
2.01(a) of this Agreement.
"Holders" has the meaning set forth in the preface above.
"Indemnified Party" and "Indemnifying Party" have the
meanings set forth in Section 2.07(c) of this Agreement.
"Piggyback Registration" has the meaning set forth in Section
2.02 of this Agreement.
"Registrable Securities" means (i) the Shares and the
Conversion Shares, (ii) any Class A common stock of EasyLink issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
that is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of the securities referenced in clause (i) and
this clause (ii), and (iii) any other shares of capital stock of EasyLink into
or for which the securities referenced in clauses (i) and (ii) may be converted
into or exchanged pursuant to a recapitalization or reclassification of
EasyLink's capital stock; provided, however, that Registrable Securities shall
not include any securities that (w) have been registered and sold pursuant to
the Act, (x) have been distributed to the public through a broker, dealer or
market maker pursuant to Rule 144 under the Act, (y) are eligible for public
resale under Rule 144(k) under the Securities Act or in accordance with the law
governing any non-U.S. exchange where the Common Stock is publicly listed or (z)
have been sold in a transaction exempt from registration under the Act so that
all transfer restriction and restrictive legends with respect thereto are
removed upon consummation of such sale.
"Registration Expenses" means all expenses incident to EasyLink's
performance of or compliance with this Agreement, including, without limitation,
(i) all registration, filing, securities exchange listing, rating agency and
National Association of Securities Dealers fees, (ii) all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws of all jurisdictions in which the securities are to be registered and
any legal fees and expenses incurred in connection with the blue sky
qualification of the Registrable Securities and the determination of their
eligibility for investment under the laws of all such jurisdictions, (iii) all
word processing, duplicating, printing, messenger and delivery expenses, (iv)
the fees and disbursements of counsel for EasyLink and of its independent public
accountants, including, without limitation, the expenses of any special audits
or "cold comfort" letter required by or incident to such performance and
compliance, (v) in connection with any firm commitment, underwritten offering,
the reasonable fees and disbursements of any one counsel or one accounting firm
retained by GATX, not to exceed $15,000 in the aggregate for all of such fees
and disbursements, (vi) premiums and other costs of policies of insurance of
EasyLink against liabilities arising out of the public offering of the
Registrable Securities being registered to the extent EasyLink elects to obtain
such insurance, and (vii) any fees and disbursements of underwriters customarily
paid by issuers or sellers of securities (but excluding underwriting discounts
and commissions), if any, relating to the Registrable Securities.
"SEC" means the U.S. Securities and Exchange Commission.
Other capitalized terms that are used herein that are not defined herein shall
have the respective meanings ascribed to such terms in the Restructuring
Agreements.
ARTICLE II
REGISTRATION RIGHTS
EasyLink, GATX and the other Holders covenant and agree as
follows:
SECTION 2.01 Mandatory Registration
(a) Registration Obligation. Within 45 days from the Closing of the
Restructuring Agreements, EasyLink agrees to prepare and file a registration
statement on Form S-3 or such other form that EasyLink may then use for an
offering to be made on a continuous basis pursuant to Rule 415 (the
"Registration Statement") covering all of the Registrable Securities and to use
reasonable commercial efforts to cause the Registration Statement to become
effective as soon as practicable thereafter (the "Mandatory Registration");
provided, however, in no event, however, shall EasyLink be required to file more
than one registration statement unless the offering of Registrable Securities
pursuant thereto is suspended, blocked by any stop order, injunction or other
order of the SEC or any governmental agency or court, or withdrawn after the
Mandatory Registration has become effective, in which event such Mandatory
Registration will be deemed not to have been effected pursuant to this Section
2.01.
SECTION 2.02 Piggyback Registration.
(a) Right to Piggyback. If EasyLink proposes to register any of its
securities under the Act in connection with a firm commitment underwritten
offering (other than registrations solely for the registration of shares in
connection with an employee benefit plan or a merger or consolidation and other
than pursuant to Section 2.01) at any time before all of the Registrable
Securities are eligible for public resale by Holders pursuant to Rule 144(k)
under the Act, whether or not for sale for EasyLink's own account, and the
registration form to be used may be used for the registration of Registrable
Securities (a "Piggyback Registration"), EasyLink will at each such time give
prompt written notice to Holders of its intention to do so and of Holders's
rights under this Section 2.02. Upon the written request of any Holders made
within 30 days after the receipt of any such notice (which request shall specify
the Registrable Securities intended to be disposed of by Holders and the
intended method of distribution thereof), EasyLink will use its reasonable
commercial efforts to effect the registration under the Act of all Registrable
Securities which EasyLink has been so requested to register by Holders, to the
extent required to permit the disposition (in accordance with such intended
methods thereof) of the Registrable Securities so to be registered, provided
that if, at any time after giving written notice of its intention to register
any securities and prior to the effective date of the registration statement
filed in connection with such registration, EasyLink shall determine for any
reason not to register or to delay registration of such securities, EasyLink
may, at its election, give written notice of such determination to Holders and,
thereupon, (i) in the case of a determination not to register, shall be relieved
of its obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the registration expenses under
Section 2.05 in connection therewith), without prejudice, however, to the rights
of Holders to request that such registration be effected as a Mandatory
Registration under Section 2.01, and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such other
securities. No registration effected under this Section 2.02 shall relieve
EasyLink of its obligation to effect any Mandatory Registration upon request
under Section 2.01.
(b) Priority in Piggyback Registrations. If the managing underwriter of
a Piggyback Registration advises EasyLink in writing that, in its opinion, the
number of shares of Registrable Securities requested or proposed to be included
in such offering exceeds the number that can be sold in such offering without
materially affecting the offering price of any such securities, EasyLink shall
include in such registration (i) first, to the extent that securities of
EasyLink are included in such registration, (A) such securities proposed to be
sold by EasyLink and (B) the securities of EasyLink held by persons who have
preferential registration rights to include such securities in such Piggyback
Registration in accordance with the agreements with respect to such registration
rights between EasyLink and Holders; and (ii) second, to the extent that such
Registrable Securities may be included in such registration without materially
affecting the offering price of the securities referred to in clause (i), in the
opinion of such managing underwriter, the Registrable Securities requested by
Holders to be included in such Piggyback Registration pursuant to Section
2.02(a) and any other securities of EasyLink held by persons other than Holders
having rights to participate in such Piggyback Registration that are
non-preferential to Holders of the Registrable Securities, pro rata among all
such holders on the basis of the total number of securities of EasyLink,
including Registrable Securities, requested to be included therein.
(c) Selection of Underwriters. EasyLink shall select the investment
banker(s) and manager(s) for the offering under Section 2.02.
(d) Underwritten Piggyback Registrations. If EasyLink at any time
proposes to register any of its securities under the Act as to which rights
under this Section 2.02 have been exercised and such securities are to be
distributed by or through one or more underwriters, EasyLink will, if requested
by Holders as provided in Section 2.02(a) and subject to the provisions of
Section 2.02 (a) and (b), use its reasonable commercial efforts to arrange for
such underwriters to include all the Registrable Securities to be offered and
sold by Holders among the securities to be distributed by such underwriters.
Holders shall be a party to the underwriting agreement between EasyLink and such
underwriters and may, at its option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
EasyLink to and for the benefit of such underwriters shall also be made to and
for the benefit of Holders and that any or all of the conditions precedent to
the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of Holders. Holders shall not be
required to make any representations or warranties to or agreements with
EasyLink or the underwriters other than representations, warranties or
agreements regarding Holders, Holders's title to Registrable Securities and
Holders's intended method of distribution and any other representation required
by law.
SECTION 2.03 Obligations of EasyLink. In furtherance of its obligations
under Section 2.01 or 2.02 to use its commercially reasonable efforts to effect
the registration of the Registrable Securities, EasyLink shall, as expeditiously
as reasonably possible,
(a) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective and keep such
registration statement effective until (i) in the case of a Mandatory
Registration, the time when all Registrable Securities are eligible for sale by
Holders pursuant to Rule 144(k) and (ii) in the case of a Piggyback
Registration, until 90 days after the effectiveness of such registration
statement;
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Act with
respect to the disposition of all securities covered by such registration until
the earlier of the time periods specified in Section 2.03(a) and such time as
all of such securities have been disposed of in accordance with the intended
methods of disposition by Holders set forth in such registration statement;
(c) Furnish to Holders such numbers of copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits) and prospectus, including any preliminary
prospectus, in conformity with the requirements of the Act, and such other
documents as Holders may reasonably request in order to facilitate the
disposition of the Registrable Securities;
(d) Use its commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions (domestic or foreign) as
Holders shall reasonably request, to keep such registration or qualification in
effect for so long as such registration statement remains in effect, and to take
any other action which may be reasonably necessary or advisable to enable
Holders to consummate the disposition in such jurisdictions of the securities
owned by Holders, except that EasyLink shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this Section
2.03(d) be obligated to be so qualified, to subject itself to taxation in any
such jurisdiction or to consent to general service of process in any such
jurisdiction;
(e) Use its reasonable commercial efforts to (i) obtain the
withdrawal of any order suspending the effectiveness of such registration
statement or sales thereunder at the earliest possible time and (ii) cause all
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable Holders to consummate the disposition of such Registrable
Securities;
(f) In connection with any firm commitment underwritten
offering, furnish to Holders a signed counterpart, addressed to Holders (and the
underwriters, if any) of
(i) an opinion of counsel for EasyLink dated the
date of the closing under the underwriting agreement, reasonably satisfactory in
form and substance to such underwriter, and
(ii) a "comfort" letter, dated the effective date
of such registration statement (and dated the date of the closing under the
underwriting agreement), signed by the independent public accountants who have
certified EasyLink's financial statements included in such registration
statement, covering substantially the same matters with respect to such
registration statement (and the prospectus included therein) and, in the
case of the accountants' letter, with respect to events subsequent to the
date of such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities;
(g) Notify in writing Holders, at any time when a prospectus
relating thereto is required to be delivered under the Act, (a) upon discovery
that, or upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and (b) of any request
for any amendment of or supplement to any registration statement or other
document relating to such offering promptly after receipt of such request from
the SEC or any other regulatory body or other body having jurisdiction and, in
either case, at the request of Holders promptly prepare and furnish to Holders a
reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such 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 under which they were made;
(h) Otherwise comply with all applicable federal and state
securities laws and rules and regulations of the SEC, and will furnish to
Holders draft and final versions of each registration statement and prospectus
used in connection therewith prior to the filing thereof, and any amendment or
supplement to such registration statement or prospectus and shall not file any
thereof to which Holders shall have reasonably objected on the grounds that such
registration statement, prospectus, amendment or supplement does not comply in
all material respects with the requirements of the Act or the rules or
regulations thereunder;
(i) Provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration
statement; and
(j) Use its reasonable commercial efforts to list all
Registrable Securities covered by such registration statement on each securities
exchange and inter-dealer quotation system on which similar securities issued by
EasyLink are then listed.
(k) EasyLink may require Holders as to which any registration
is being effected to furnish EasyLink such information regarding Holders and the
distribution of such securities as EasyLink may from time to time reasonably
request in writing to the extent necessary to comply with applicable securities
laws in connection with the preparation and filing of such registration
statement.
Section 2.04 Furnish Information.
It shall be a condition precedent to the obligations of
EasyLink to take any action pursuant to Article 2 that Holders shall furnish to
EasyLink such information regarding Holders, the Registrable Securities held by
Holders and the intended method of disposition thereof as EasyLink or its
appointed agents shall reasonably request and as shall be required in connection
with the action to be taken by EasyLink.
Section 2.05 Registration Expenses.
In the case of any registration effected pursuant to Section
2.01 or 2.02, EasyLink shall bear all Registration Expenses; provided, however,
that Holders shall bear the fees and costs of its own counsel (other than to the
extent provided in the definition of "Registration Expenses" in connection with
a firm commitment, underwritten offering) and all brokers' discounts and
commissions with respect to the Registrable Securities sold by such Person.
Section 2.06 Use of Prospectus. Each of the Holders agrees that
if EasyLink notifies Holders in writing of the happening of any event as a
result of which the prospectus included in such registration statement contains
an untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading, Holders will discontinue immediately its
disposition of securities pursuant to the registration statement until Holders
receives copies of an amended or supplemented prospectus, and if so directed by
EasyLink, will deliver to EasyLink all copies then in Holders's possession of
the prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
Section 2.07 Indemnification. If any Registrable Securities
are included in a registration statement pursuant to Section 2.01 or 2.02,
then,
(a) EasyLink shall indemnify and hold harmless Holders, agents
for and officers and directors of Holders, any underwriter of the Registrable
Securities and each Person, if any, who controls any such Person within the
meaning of the Act, against any losses, claims, damages or liabilities, joint or
several (or actions in respect thereof), to which they may become subject under
the Act or otherwise, insofar as such 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 material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained in
the registration statement, or any amendments or supplements to the registration
statement, 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 violation by EasyLink of any
rule or regulation promulgated under the Act or any state securities law or rule
or regulation applicable to EasyLink, and will reimburse Holders, the agents
for, and officers and directors of Holders, any underwriter of the Registrable
Securities or any such 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 EasyLink
shall not be liable to Holders or any such person in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any untrue statement or omission based upon and in conformity with information
furnished to EasyLink in writing by Holders expressly for use in such
registration statement or prospectus.
(b) Holders shall indemnify and hold harmless EasyLink, each
of its directors and each of its officers who have signed such registration
statement against any losses, claims, damages or liabilities to which EasyLink
or any such director or officer may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities arise out of or are based
upon any untrue or alleged untrue statement of any material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained in the registration statement or any amendments or
supplements to the registration statement, 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, in
each case 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 prospectus, or amendments or supplement
thereto, in reliance upon and in conformity with information furnished by
Holders in writing expressly for the purpose of inclusion in such registration
statement, preliminary prospectus or amendments or supplements, and Holders will
reimburse any legal or other expenses actually and reasonably incurred by
EasyLink or any such director, officer or controlling Person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, that Holders's liability under this Section 2.06(b) shall not exceed
the amount of the gross proceeds of the offering of Holders's Registrable
Securities included therein.
(c) Each party entitled to indemnification (the "Indemnified
Party") shall give notice to the party required to provide indemnification
("Indemnifying Party") promptly after such Indemnified Party has knowledge of
any claim as to which indemnity may be sought, and shall permit the Indemnifying
Party (at its expense) to assume the defense of any such claim or any litigation
resulting therefrom; provided, however, that counsel for the Indemnifying Party,
who shall conduct the defense of such claim or litigation, shall be reasonably
satisfactory to the Indemnified Party, and the Indemnified Party may participate
in such defense at such party's expense; provided, further, that the failure by
any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2.06, except to the
extent that the failure results in an omission of actual notice to the
Indemnifying Party and such Indemnifying Party is materially damaged as a result
of the failure to give notice. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to the entry of any judgment or enter into any settlement that does not
include as an unconditional term the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability with respect to such claim or
litigation.
SECTION 2.08 Contribution. (a) If the indemnification provided for
in Section 2.07 is unavailable to the Indemnified Party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and the Indemnified
Party on the other in connection with the statement or omission which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault shall
be determined by reference to, among other things, whether the untrue statement
(or alleged untrue statement) of a material fact or the omission (or alleged
omission) to state a material fact relates to information supplied by the
Indemnifying Party or the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and Holders agree that it would not be just
and equitable if contribution pursuant to this Section 2.08 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in this Article 2 shall
be deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim.
(b) No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
SECTION 2.09 Transfer of Registration Rights. The registration
rights of Holders under this Article 2 may be assigned and transferred (i) by
Holders to any Affiliate of Holders to whom any of the Securities or Conversion
Shares owned by Holders are transferred, and (ii) by Holders to any transferee
who acquires a majority of the Registrable Securities (adjusted to reflect
subsequent stock splits, combinations, stock dividends and recapitalizations)
initially issued to Holders; provided, however, that EasyLink is given written
notice by Holders at the time of such assignment and transfer stating the name
and address of the transferee and identifying the securities with respect to
which the rights under this Article 2 are being assigned and transferred. For
the purposes of this Section 2.09, a change in control of an Affiliate of
Holders holding shares entitling such Affiliate to the registration rights
hereunder, such that such Affiliate is subsequent to such change of control no
longer an Affiliate of Holders, shall be deemed an attempted transfer of the
registration rights hereunder and such former Affiliate of Holders shall not be
entitled to such registration rights except to the extent such transfer would be
permitted under clause (ii) above.
ARTICLE III
MISCELLANEOUS
SECTION 3 Successors and Assigns. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties hereto
(including permitted transferees of any shares of Registrable Securities).
Nothing in this Agreement is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any rights, remedies,
obligations or liability under or by reason of this Agreement, except as
expressly provided in this Agreement.
Section 3.01 Notices. All notices and other communications required or
permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given upon receipt or, if earlier, (a) five
(5) days after deposit with the U.S. Postal Service or other applicable postal
service, if delivered by first class mail, postage prepaid, (b) upon delivery,
if delivered by hand or transmitted via facsimile (confirmed by letter sent by
first class mail, postage prepaid with the U.S. Postal Service or other
applicable postal service), or (c) one business day after the business day of
deposit with Federal Express or similar reputable, international overnight
courier, freight prepaid. Such notices, demands and other communications shall
be sent to EasyLink at the address set forth below and to Holders at such
address set forth on Schedule A to the Restructuring Agreements or at such
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. The address for EasyLink
is:
EasyLink Services Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx, Chief Executive Officer
Fax No.: ________________
with a copy at the same address (Fax number 000-000-0000) to:
Xxxxx X. Xxxxxxxx, Esq.
or at such other address as a party may designate by ten (10) days advance
written notice to the other party pursuant to the provisions above.
Section 3.02 Enforcement. The parties agree that each Holder has an
independent right to enforce EasyLink's performance of the provisions of this
Agreement and that any Holder may bring an action or proceeding against EasyLink
in connection with this Agreement without notice to any other Holder. Each
Holder further agrees that they are neither necessary nor indispensable parties
in an action brought by another Holder against EasyLink in connection with this
Agreement.
Section 3.03 Governing Law; Forum and Consent to Jurisdiction.
(a) Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the law of
the State of Florida.
(b) Submission to Jurisdiction; Service of Process. (i) EasyLink and
Holders agree that any action or proceeding brought by Holders in connection
with this Agreement may be brought (and any action or proceeding brought by
EasyLink against Holders in connection herewith shall exclusively be brought) in
the courts of the State of New York sitting in the Borough of Manhattan or of
the United States of America for the Southern District of New York and, by
execution and delivery of this Agreement, EasyLink and Holders hereby
irrevocably waive any objection, including, without limitation, any objection to
the laying of venue or based on the grounds of forum non conveniens, which it
may now or hereafter have to the bringing of any such action or proceeding by
EasyLink or Holders in such non-exclusive jurisdictions.
(ii) EasyLink hereby irrevocably appoint CT Corporation System (the
"Process Agent"), with an office on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx,
XX 00000, Xxxxxx Xxxxxx of America, as their agent to receive on their behalf
service of copies of the summons and complaint and any other process that may be
served in any such action or proceeding. EasyLink irrevocably consents to the
service of process of any of the aforesaid courts in any such action or
proceeding by the mailing of copies thereof by registered mail, postage prepaid,
to it at its address set forth in this Agreement or to the Process Agent at its
address specified above.
Section 3.04 Waivers; Amendments. The waiver by the undersigned of any
of the provisions of this Agreement shall not operate or be construed as a
waiver of any subsequent breach. This Agreement may be amended, and any
provision of this Agreement may be waived, only by a written amendment executed
by (i) in the case of any amendment affecting the rights or obligations of
EasyLink, EasyLink and (ii) in the case of any amendment affecting the rights or
obligations of Holders, holders of a majority of the Registrable Securities then
outstanding (including Conversion Shares issuable upon conversion of then
outstanding Notes and Warrants).
Section 3.05 Headings. The section headings contained in this Agreement
are for reference purposes only and shall not affect the construction and
interpretation of this Agreement.
Section 3.06 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
Section 3.07 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument. This Agreement may contain more
than one counterpart of the signature page and may be executed by the affixing
of the signatures of each of the parties hereto to one of these counterpart
signature pages. All of the counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
Section 3.08 Aggregation of Stock. All shares of Registrable Securities
held or acquired by affiliated entities or persons shall be aggregated together
for the purpose of determining the availability of any rights under this
Agreement.
Section 3.09 Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto and no presumption or burden of
proof shall arise favoring or disfavoring any party hereto by virtue of the
authorship of any of the provisions of this Agreement.
Section 3.10 Entire Agreement. This Agreement contains the entire
agreement of the parties hereto. The parties hereto are not bound by any oral
statements that are made outside of this Agreement.
WHEREAS, the parties hereto have executed this Agreement as of
the date first above written.
EASYLINK SERVICES CORPORATION
By:
--------------------------------------
Xxxxxx Xxxxxxxx
Chief Executive Officer
