Exhibit 4.12
REGISTRATION RIGHTS UNDERTAKING
This Registration Rights Undertaking is made and entered into as of
June 22, 2004, by Internet Commerce Corporation, a Delaware corporation (the
"Company"), in favor of the shareholders (the "Shareholders") of Electronic
Commerce Systems, Inc., a Georgia corporation ("ECS"), set forth in Section 3.3
of the Disclosure Schedule to the Merger Agreement (as defined in the next
paragraph).
WHEREAS, the Company, ICC Acquisition Corporation, Inc., a Georgia
corporation, all of whose capital stock is owned directly by the Company, ECS
and the Persons listed on the signature pages thereto have entered into an
Agreement and Plan of Merger dated as of May 24, 2004 (the "Merger Agreement")
whereby the Company will acquire ECS by merger (the "Merger") and will issue the
Registrable Securities to the Shareholders;
NOW, THEREFORE, in consideration of the premises and covenants and
obligations hereinafter set forth, and to induce ECS and the Shareholders to
consummate the Merger, the Company, intending to be legally bound, hereby agrees
as follows.
Section 1. Definitions. As used in this Undertaking, the following
terms shall have the following meanings:
"Affiliate" of any Person means any other Person who either,
directly or indirectly, is in control of, is controlled by, or is under common
control with such Person. For purposes of this definition, the term "control"
(including the terms "controlling" "controlled by" and under "common control
with") means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Business Day" shall mean any day which is not a Saturday or Sunday
or legal holiday on which banks are authorized or required to be closed in New
York, New York.
"Common Stock" shall mean the Class A Common Stock, par value $.01
per share, of the Company.
"Delay Notice" shall have the meaning set forth in Section 6(b)
hereof.
"Material Development Condition" shall have the meaning set forth in
Section 6(b) hereof.
"Merger Agreement" shall have the meaning set forth in the recitals
to this Undertaking.
"Merger Registration" shall have the meaning set forth in Section
3(a) hereof.
"Merger Registration Period" shall have the meaning set forth in
Section 3(a) hereof.
"Other Holders" shall have the meaning set forth in Section 3(b)
hereof.
"Person" shall mean an individual, partnership, corporation, limited
liability company, joint venture, trust or unincorporated organization or a
government or agency or political subdivision thereof or any other similar
entity.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by a prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities covered
by such Registration Statement and by all other amendments and supplements to
the prospectus, including post-effective amendments, and all material
incorporated by reference in such prospectus.
"Registrable Securities" shall mean the shares of Common Stock
issued to the Shareholders by the Company pursuant to the Merger Agreement and
any other securities issued or issuable as a result of or in connection with any
stock dividend, stock split or reverse stock split, combination,
recapitalization, reclassification, merger or consolidation, exchange or
distribution or otherwise in respect of such Common Stock.
"Registration Expenses" shall have the meaning set forth in Section
7 hereof.
"Registration Statement" shall mean any registration statement which
covers any of the Registrable Securities pursuant to the provisions of this
Undertaking, including the Prospectus included therein, all amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits thereto and all material incorporated by reference in such
Registration Statement.
"Requesting Securityholder" shall have the meaning set forth in
Section 4 hereof.
"Restricted Securities" shall have the meaning set forth in Section
2 hereof.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act,
as amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 903" shall mean Rule 903 promulgated under the Securities Act,
as amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 904" shall mean Rule 904 promulgated under the Securities Act,
as amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"SEC" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Securities
Act.
"Securities Act" shall mean the Securities Act of 1933, as amended
(or any similar successor federal statute), and the rules and regulations of the
SEC thereunder, as the same are in effect from time to time.
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"Underwritten Offering" shall mean an offering registered under the
Securities Act in which securities of the Company are sold to an underwriter on
a firm commitment basis for reoffering to the public.
Other capitalized terms not defined herein shall have the meaning
given such terms in the Merger Agreement.
Section 2. Securities Subject to this Undertaking. The securities
entitled to the benefits of this Undertaking are the Registrable Securities but,
with respect to any particular Registrable Security, only so long as such
security continues to be a Restricted Security. A Registrable Security that has
ceased to be a Registrable Security cannot thereafter become a Registrable
Security. As used herein, a Restricted Security is a Registrable Security which
has not been effectively registered under the Securities Act and distributed in
accordance with an effective Registration Statement and which has not been
distributed by the Shareholders pursuant to Rule 144, Rule 903 or Rule 904,
unless, in the case of a Registrable Security distributed pursuant to Rule 903
or 904, any applicable restricted period has not expired or the SEC or its staff
have taken the position in a published release, ruling or no-action letter that
securities distributed under Rule 903 or 904 are ineligible for resale in the
United States under Section 4(1) of the Securities Act notwithstanding
expiration of the applicable restricted period.
Section 3. Merger Registrations.
(a) Merger Registration. The Company shall use its commercially
reasonable efforts (i) to file no later than the later of (x) the earlier of (i)
ten (10) Business Days after the completion of the audited financial statements
of the Company for the year ended December 31, 2003, and the execution of the
auditors report with respect thereto, and (ii) seventy-five (75) days after the
Effective Time of the Merger, and (y) ten (10) Business Days after the Company
receives all information from the Shareholders which it deems reasonably
necessary to file (provided the Company requests such information in writing not
more than thirty (30) days after the Effective Time of the Merger), and use its
reasonable commercial efforts to cause to become effective within one hundred
and twenty (120) days after filing, a Registration Statement on Form S-3 (or any
successor form) covering the resale of all of the Registrable Securities, and
(ii) to cause such Registration Statement to remain effective for the period
(the "Merger Registration Period") ending on the earlier of (x) one year after
the Effective Time of the Merger, and (y) the date on which all Registrable
Securities covered by such Registration Statement have been sold and the
distribution contemplated thereby has been completed (the "Merger
Registration").
(b) Inclusion of Other Securities. The Company and any other holder
of the Company's securities who has registration rights ("Other Holders") may
include its securities in the Merger Registration effected pursuant to this
Section 3; provided, however, that if any managing underwriter of any such
Merger Registration which is an Underwritten Offering advises the Shareholders
that the total number of securities which the Shareholders and the Company or
such Other Holders propose to include in such registration is sufficiently large
to adversely affect the success of such Underwritten Offering, then the number
of securities to be offered for the account of the Company or any Other Holders
shall be reduced pro rata, based upon the aggregate number of securities to be
offered by the Company and the Other Holders, to
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the extent necessary before the number of Registrable Securities offered by the
Shareholders is so reduced.
Section 4. Piggyback Registration. If the Company at any time
proposes to file a registration statement with respect to its Common Stock,
whether (i) for its own account (other than a registration statement on Forms
S-4 or S-8 (or any successor or substantially similar form), and other than in
connection with (A) an employee stock option, stock purchase or compensation
plan or securities issued or issuable pursuant to any such plan, (B) a dividend
reinvestment plan, or (C) a "shelf" registration pursuant to Rule 415 under the
Securities Act) or (ii) for the account of an Other Holder or Other Holders that
have a right to request such registration (a "Requesting Securityholder"), then
the Company shall in each case give written notice of such proposed filing to
the Shareholders at least ten (10) Business Days before the anticipated filing
date of any such registration statement by the Company, and such notice shall
offer to the Shareholders the opportunity to have any or all of the Registrable
Securities held by the Shareholders included in such registration statement. If
the Shareholders desire to have their Registrable Securities registered under
this Section 4 they shall so advise the Company in writing within ten (10)
Business Days after the date of receipt of such notice (which requests shall set
forth the amount of Registrable Securities for which registration is requested),
and the Company shall use its commercially reasonable efforts to include in such
Registration Statement all such Registrable Securities so requested to be
included therein. Notwithstanding the foregoing, if any managing underwriter of
any such proposed public offering that is an Underwritten Offering advises the
Company that the total number of securities which the Company, the Requesting
Securityholders, the Shareholders and any other Persons intended to be included
in such proposed Underwritten Offering is sufficiently large to adversely affect
the success of such proposed public offering, then the number of securities to
be offered for the accounts of the Shareholders and all other Persons (other
than the Company and the Requesting Securityholders) shall be reduced pro rata,
based upon the aggregate number of securities to be offered for the accounts of
the Shareholders and all Other Persons (other than the Company and the
Requesting Securityholders), to the extent necessary to reduce the total number
of securities to be included in such proposed Underwritten Offering to the
number recommended by such managing underwriter before the number of securities
offered by the Company or any Requesting Securityholder is so reduced. Anything
to the contrary in this Undertaking notwithstanding, the Company may withdraw or
postpone a Registration Statement referred to in this Section 4 at any time
before it becomes effective or withdraw, postpone or terminate the offering
after it becomes effective without any obligation or liability to any
Shareholder.
Section 5. Registration Procedures.
(a) General. In connection with the Company's registration
obligations pursuant to Section 3 and, to the extent applicable, Section 4
hereof, the Company will:
(i) prepare and file with the SEC a new Registration Statement
or such amendments and post-effective amendments to an existing
Registration Statement as may be necessary to keep such Registration
Statement effective for the Merger Registration Period, provided that no
Registration Statement shall be required to remain in effect after all
Registrable Securities covered by such Registration Statement have been
sold and distributed as contemplated by such Registration Statement or
otherwise,
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and provided, further, that as soon as reasonably practicable, but in no
event later than five (5) Business Days before filing such Registration
Statement, the Company shall furnish to the Shareholders and each managing
underwriter, if any, copies of all such documents proposed to be filed,
which documents shall be subject to the review of Shareholders and each
managing underwriter and their respective counsel;
(ii) notify the Shareholders and each managing underwriter, if
any, and their respective counsel, promptly (1) when a new Registration
Statement, Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any new Registration
Statement or post-effective amendment, when it has become effective, (2)
of any request by the SEC for amendments or supplements to any
Registration Statement or Prospectus or for additional information, (3) of
the issuance by the SEC of any comments with respect to any Registration
Statement, (4) of any stop order suspending the effectiveness of any
Registration Statement or the initiation of any proceedings for that
purpose, (5) of any suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, and (6) if there is a misstatement or
omission of a material fact in any Registration Statement, Prospectus or
any document incorporated therein by reference or if any event occurs
which requires the making of any changes in any Registration Statement,
Prospectus or any document incorporated therein by reference in order to
make the statements therein (in the case of any Prospectus, in the light
of the circumstances under which they were made) not misleading;
(iii) if reasonably requested by any managing underwriter or the
Shareholders, promptly incorporate in a Prospectus supplement or
post-effective amendment such information as any managing underwriter and
the Shareholders agree should be included therein relating to the sale of
the Registrable Securities, including, without limitation, information
with respect to the aggregate number of shares of Registrable Securities
being sold to such underwriters, the purchase price being paid therefor by
such underwriters and with respect to any other terms of the Underwritten
Offering of the Registrable Securities to be sold in such offering, and
promptly make all required filings of such Prospectus supplement or
post-effective amendment;
(iv) furnish to the Shareholders and each managing underwriter,
if any, and their respective counsel, without charge, as many conformed
copies as may reasonably be requested of the then effective Registration
Statement and any post-effective amendments thereto, including financial
statements and schedules, all documents incorporated therein by reference
and all exhibits (including those incorporated by reference);
(v) deliver to the Shareholders and each managing underwriters,
if any, and their respective counsel, without charge, as many copies of
the then effective Prospectus (including each prospectus subject to
completion) and any amendments or supplements thereto as such Persons may
reasonably request;
(vi) use commercially reasonable efforts to register or qualify
or cooperate with the Shareholders, each managing underwriter, if any, and
their respective
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counsel, in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky
laws of such jurisdictions as the Shareholders or any managing underwriter
reasonably requests in writing; provided, however, that the Company will
not be required to (1) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify, but for this paragraph (vi),
(2) subject itself to general taxation in any such jurisdiction or (3)
file a general consent to service of process in any such jurisdiction;
(vii) cooperate with the Shareholders and each managing
underwriter, if any, and their respective counsel to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable
such Registrable Securities to be in such denominations and registered in
such names as any managing underwriter may request at least two (2)
Business Days prior to any sale of Registrable Securities to the
underwriters;
(viii) otherwise use its commercially reasonable efforts to
comply in all material respects with all applicable rules and regulations
of the SEC relating to such registration and the distribution of the
securities being offered and make generally available to its securities
holders an earnings statement satisfying the provisions of Section 11(a)
of the Securities Act;
(ix) cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc.;
(x) in the event of any Underwritten Offering, enter into and
perform its obligations under a customary underwriting agreement with the
managing underwriter of such Underwritten Offering; and
(xi) upon reasonable notice and during normal business hours,
provide reasonable access to the Company's personnel and auditors for the
purpose of permitting the Shareholders to conduct due diligence in
connection with any such Registration Statement.
As a condition precedent to the participation in any registration
hereunder, the Company may require the Shareholders as to which any such
registration is being effected to furnish to the Company such information
regarding such Shareholders and the distribution of Registrable Securities as
the Company may from time to time reasonably request to comply with the
applicable provisions of the Securities Act.
(b) Upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 5(a)(ii) hereof, or upon receipt of a
Delay Notice, the Shareholders will forthwith discontinue disposition of
Registrable Securities pursuant to the then current Prospectus until (1) the
Shareholders are advised in writing by the Company that a new Registration
Statement covering the offer of Registrable Securities has become effective
under the Securities Act or (2) the Shareholders receive copies of any required
supplemented or amended Prospectus, or until the Shareholders are advised in
writing by the Company that the use of the Prospectus may be resumed; provided,
however, that the Company shall use its
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commercially reasonable efforts to cure any such misstatement, omission or event
that is applicable to the Registration Statement as soon as reasonably
practicable after delivery of such notice pursuant to clause (6) of Section
5(a)(ii) hereof. If so directed by the Company, on the happening of such event,
the Shareholders will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in the Shareholders' possession,
of the Prospectus covering such Registrable Securities current at the time of
receipt of such notice.
Section 6. Holdback Agreements.
(a) Hold-Back Election. In the case of the registration of any
primary Underwritten Offering initiated by the Company (other than any
registration by the Company on Form S-4 or Form S-8 (or any successor or
substantially similar form), and other than in connection with (A) an employee
stock option, stock purchase or compensation plan or of securities issued or
issuable pursuant to any such plan or (B) a dividend reinvestment plan) or any
secondary Underwritten Offering initiated at the request of a Requesting
Securityholder, the Shareholders agree that if they are requested to do so by
any managing underwriter, then the Shareholders shall not effect any sale or
distribution of securities of the Company, or options warrants, puts or calls
with respect to securities of the Company, except as part of such Underwritten
Offering, during the period beginning ten (10) days prior to the closing date of
such Underwritten Offering and ending ninety (90) days after such closing date
(or such longer period as may be reasonably requested by the Company or by such
managing underwriter).
(b) Material Development Condition. With respect to any Registration
Statement filed or to be filed pursuant to Section 3 hereof, if the Company
determines that, in its good faith judgment, it would (because of the existence
of, or in reasonable anticipation of, any acquisition or corporate
reorganization or other transaction, financing activity, stock repurchase or
other material development involving the Company or any subsidiary, or the
unavailability for reasons beyond the Company's control of any required
financial statements, or any other event or condition of similar significance to
the Company or any subsidiary) be materially disadvantageous (a "Material
Development Condition") to the Company to proceed with such Registration
Statement, then the Company shall, notwithstanding any other provisions of this
Undertaking, be entitled, upon the giving of a written notice that a Material
Development Condition has occurred (a "Delay Notice") from an officer of the
Company to Xxxxxx X. Xxxxxxxxxx, as the Representative of the Shareholders, (i)
to cause sales of Registrable Securities by the Shareholders pursuant to such
Registration Statement to cease, (ii) to cause such Registration Statement to be
withdrawn and the effectiveness of such Registration Statement terminated, or
(iii) in the event no such Registration Statement has yet been filed or declared
effective, to delay filing or effectiveness of any such Registration Statement
until, in the good faith judgment of the Company, such Material Development
Condition shall be disclosed or no longer exists (notice of which the Company
shall promptly deliver to Xxxxxx X. Xxxxxxxxxx, as the Representative of the
Shareholders). Notwithstanding the foregoing provisions of this Section 6(b),
(1) in no event may such cessation or delay be, for each such Registration
Statement, for a period of more than one hundred and twenty (120) consecutive
days from the giving of its Delay Notice to the Shareholders with respect to
such Material Development Condition, as above provided; and (2) in the event a
Registration Statement is filed and subsequently withdrawn by reason of any
existing or anticipated Material Development Condition as provided above, the
Company shall cause a new Registration Statement covering
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the Registrable Securities to be filed with the Commission as soon as reasonably
practicable after such Material Development Condition ceases to exist or, if
sooner, as soon as practicable after the expiration of such one hundred and
twenty (120) day period.
Section 7. Registration Expenses. All expenses incident to the
Company's performance of or compliance with this Undertaking, including, without
limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications or registrations (or the
obtaining of exemptions therefrom) of the Registrable Securities), printing
expenses (including expenses of printing Prospectuses), messenger and delivery
expenses, fees and disbursements of its counsel and its independent certified
public accountants, securities acts liability insurance (if the Company elects
to obtain such insurance), fees and expenses of any special experts retained by
the Company in connection with any registration hereunder and fees and expenses
of other Persons retained by the Company (all such expenses being referred to as
"Registration Expenses"), shall be borne by the Company; provided, that
Registration Expenses shall not include any fees and expenses of counsel for the
Shareholders, out-of-pocket expenses incurred by the Shareholders and
underwriting discounts, commissions or fees attributable to the sale of the
Registrable Securities.
Section 8. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, but without duplication,
the Shareholders, their officers, directors, stockholders, partners, members,
employees, advisors and agents, and each Person who controls the Shareholders
(within the meaning of the Securities Act), against all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation and
reasonable legal fees and expenses) resulting from any untrue statement of a
material fact in, or any omission of a material fact required to be stated in,
any Registration Statement or Prospectus or necessary to make the statements
therein (including any such statements or omissions incorporated by reference
therein) (in the case of a Prospectus, in light of the circumstances under which
they were made) not misleading, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by the
Shareholders or any underwriters for use therein. The Company will also
indemnify underwriters participating in the distribution, their officers,
directors, employees, partners and agents, and each Person who controls such
underwriters (within the meaning of the Securities Act), to the same extent as
provided above with respect to the indemnification of the Shareholders, if so
requested, provided that the underwriters indemnify the Company to the same
extent as the Shareholders do pursuant to Section 8(b) hereof with respect to
information provided to the Company by such underwriters.
(b) Indemnification by the Shareholders. In connection with any
Registration Statement in which the Shareholders are participating, the
Shareholders will furnish to the Company in writing such information and
affidavits as the Company reasonably requests for use in connection with any
such Registration Statement or Prospectus and agrees to indemnify and hold
harmless, severally and not jointly, to the full extent permitted by law, but
without duplication, the Company, its officers, directors, stockholders,
employees, advisors and agents, and each Person who controls the Company (within
the meaning of the Securities Act), against
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all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation and reasonable legal fees and expenses) resulting from
any untrue statement of material fact in, or any omission of a material fact
required to be stated in, the Registration Statement or Prospectus or necessary
to make the statements therein (in the case of a Prospectus, in light of the
circumstances under which they were made) not misleading to the extent that such
untrue statement or omission is caused by or contained in any information or
affidavit so furnished in writing by the Shareholders to the Company. The
Company and the other persons described above shall be entitled to receive
indemnities from underwriters participating in the distribution, to the same
extent as provided above with respect to information so furnished in writing by
such Persons for inclusion in any Prospectus or Registration Statement. The
Shareholders shall not be required to provide indemnification or contribution
hereunder in excess of an amount equal to the net proceeds to the Shareholders
from the disposition of the Registrable Securities disposed of by the
Shareholders pursuant to such Registration Statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying Person
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying Person to assume the defense of such claim with counsel of such
indemnifying Person's choice; provided, however, that any Person entitled to
indemnification hereunder shall have the right to employ separate counsel and to
participate in (but not control) the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such indemnified Person
unless (A) the indemnifying Person shall have failed to assume the defense of
such claim and employ counsel reasonably satisfactory to the indemnified Person
in a timely manner or (B) in the reasonable judgment of any such indemnified
Person, based upon a written opinion of its counsel, a conflict of interest may
exist between such indemnified Person and the indemnifying Person with respect
to such claim (in which case, if the indemnified Person notifies the
indemnifying Person in writing that such indemnified Person elects to employ
separate counsel at the expense of the indemnifying Person, the indemnifying
Person shall not have the right to assume the defense of such claim on behalf of
such indemnified Person, provided such separate counsel is reasonably
satisfactory to the indemnifying Person). The indemnifying Person will not be
subject to any liability for any settlement made without its consent. No
indemnified Person will be required to consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified Person of a release from
all liability in respect of such claim or litigation. An indemnifying Person who
is not entitled to, or elects not to, assume the defense of the claim will not
be obligated to pay the fees and expenses of more than one counsel (except one
(1) local counsel if required in a specific instance) for all Persons
indemnified by such indemnifying Person with respect to such claim.
(d) Contribution. If for any reason the indemnification provided for
in Section 8(a) or Section 8(b) hereof is unavailable to an indemnified Person
or is insufficient to hold it harmless as contemplated by Section 8(a) and
Section 8(b) hereof, then the indemnifying Person shall contribute to the amount
paid or payable by the indemnified Person as a result of such loss, claim,
damage, liability or expense in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnifying Person and the
indemnified Person, but also the relative fault of the indemnifying Person and
the indemnified Person, 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 the omission relates to information supplied
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by the indemnifying Person or Persons, on the one hand, or the indemnified
Person or Persons, on the other hand, and their relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. 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
misrepresentations.
(e) Notwithstanding the foregoing, to the extent that the
indemnification and contribution provisions contained in any underwriting
agreement entered into in connection with any Underwritten Offering conflict
with the foregoing, the provisions of such underwriting agreement shall control.
Section 9. Participation in Underwritten Registrations. The
Shareholders may not participate in any Underwritten Offering of the Registrable
Securities hereunder unless they (i) agree to sell the Registrable Securities
included therein on the basis provided in any underwriting arrangements approved
by the Persons entitled hereunder to approve such arrangements and (ii) complete
and execute all questionnaires, powers of attorney, custody arrangements,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements. Nothing in this Section 9 shall be
construed to create any additional rights regarding the registration of
Registrable Securities in any Person otherwise than as set forth herein. The
Company may designate the managing underwriter of the Merger Registration,
subject to the consent of a majority of the Shareholders which shall not be
unreasonably withheld or delayed.
Section 10. Amendments and Waivers. The provisions of this
Undertaking, including the provisions of this Section 10, may only be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may only be given, if such amendment, modification or waiver
is in writing and duly executed by the Company and the Shareholder to be bound
thereby; provided, however, that if a majority in interest of the Shareholders
agree thereto, such amendment, modification or waiver shall be binding upon and
enforceable against all of the Shareholders and their respective successors and
assigns. No waiver of any provision of this Undertaking shall constitute a
waiver of any other provision of this Undertaking and no waiver on one occasion
shall constitute a waiver on any future occasion with respect to the same or any
other provision of this Undertaking.
Section 11. Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or air-courier guaranteeing overnight delivery:
(a) If to the Shareholders, at the most current address given by the
Shareholders to the Company, in accordance with the provisions of this
Section 11, which addresses (including facsimile number) initially are set
forth next to each Shareholder's name on Schedule I to this Undertaking.
(b) If to the Representative, initially at Suite 100, 0000 Xxxxxxxxx
Xxxx Xxxxxxx, Xxxxxxxx, Xxxxxxx 00000, facsimile No.: (000) 000-0000, and
thereafter at such other address or facsimile number as may be designated
from time to time by notice given in accordance with the provisions of
this Section 11, in each case with a copy to the
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Shareholders, provided that any defect in the mailing of any such notice to
any Shareholder, or the failure of any Shareholder to receive any such
notice, shall not affect the validity or effectiveness of any notice given
to the Representative.
(c) If to the Company, initially at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000, attention: Xxx Xxxxxxxxx, Chief Executive Officer, facsimile No.:
(000) 000-0000, and thereafter at such other address, person's attention
or facsimile number as may be designated from time to time by notice given
in accordance with the provisions of this Section 11, with copies to
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, attention: Xxxxx X. Xxxxxxxx, Esq., facsimile No.: (000) 000-0000.
(d) All such notices and other communications shall be deemed to
have been delivered and received (i) in the case of personal delivery,
facsimile, telecopier or telegram, on the date of such delivery, (ii) in
the case of air courier, on the Business Day after the date when sent and
(iii) in the case of mailing, on the third (3rd) Business Day following
such mailing.
Section 12. Headings. The headings in this Undertaking are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 13. Governing Law. THIS UNDERTAKING SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF THE CONFLICT OF LAWS THEREOF.
Section 14. Jurisdiction; Forum; Waiver of Trial by Jury. The
Company and each Shareholder consent and submit to the jurisdiction of any state
court sitting in the County of New York or federal court sitting in the Southern
District of the State of New York in connection with any dispute arising out of
or relating to this Undertaking. The Company and each Shareholder waive any
objection to the laying of venue in such courts and any claim that any such
action has been brought in an inconvenient forum. To the extent permitted by
law, any judgment in respect of a dispute arising out of or relating to this
Undertaking may be enforced in any other jurisdiction within or outside the
United States by suit on the judgment, a certified copy of such judgment being
conclusive evidence of the fact and amount of such judgment. The Company and
each Shareholder agree that personal service of process may be effected by any
of the means specified in Section 11 hereof, addressed to such Person. The
foregoing shall not limit the rights of the Company or any Shareholder to serve
process in any other manner permitted by law. THE COMPANY AND EACH SHAREHOLDER
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY
ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS
UNDERTAKING.
Section 15. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other
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respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
Section 16. Successors and Assigns; No Third Party Beneficiaries.
This Undertaking shall inure to the benefit of and be binding upon the Company
and each Shareholder. Except as otherwise expressly provided in Section 8
hereof, this Undertaking shall not confer any rights or remedies upon any Person
other than the Company and each Shareholder and their respective heirs, personal
representatives, legatees, successors and permitted assigns.
Section 17. Entire Agreement. This Undertaking is intended by the
parties as a final expression of their agreement and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This
Undertaking supersedes all prior agreements and understandings, whether written
or oral, between or among the Company and the Shareholders with respect to such
subject matter.
Section 18. Shareholder Consent. By accepting receipt of Registrable
Securities pursuant to the Merger Agreement, each Shareholder consents to and
agrees to be bound by each of the foregoing provisions of this Undertaking and
covenants and agrees to perform all of the obligations of the Shareholders set
forth herein.
Section 19. Agreement of the Shareholders; Appointment of
Representative. Each of the Shareholders, by accepting certificates for ICC
Shares as a result of the Merger, hereby agrees to be bound by the terms,
provisions and agreements contained in the foregoing undertaking and hereby
appoints Xxxxxx X. Xxxxxxxxxx as its Representative hereunder.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Company has executed this Registration
Rights Undertaking for the benefit of the Shareholders as of the date first
written above.
INTERNET COMMERCE CORPORATION
By: /s/ Xxx Xxxxxxxxx
------------------------------
Name: Xxx Xxxxxxxxx
Title: Chief Executive Officer
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Schedule I
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Shareholder Address Fascimile Number
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Xxxx Xxxx 610 Blue Teal Ct. (000) 000-0000
Xxxxxxx, XX 00000
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The Bristol Company Suite 100 (000) 000-0000
0000 Xxxxxxxxx Xxxx Xxxxxxx
Xxxxxxxx, XX 00000
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Xxxxxxx X. X'Xxxxx 0000 X. Xxxx Xx. (000) 000-0000
Xxxxxxx, XX 00000
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Xxxx X. XxXxxxxx 4100 Paces Walk #1208 (678) 305-0206
Xxxxxxx, XX 00000
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