Exhibit 4.13
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into as of
October 22, 2001, by and among Internet Commerce Corporation, a Delaware
corporation (the "Company"), and the persons and entities that execute and
deliver a counterpart of this Agreement (the "Stockholders").
WHEREAS, the Stockholder is purchasing from the Company shares of
the Company's Class A Common Stock, par value $0.01 per share (the "Common
Stock"), and Warrants (as hereinafter defined) pursuant to a subscription
agreement dated as of even date herewith (the "Subscription Agreement");
NOW, THEREFORE, in consideration of the premises and mutual
covenants and obligations hereinafter set forth, the Company and the
Stockholder, intending legally to be bound, hereby agree as follows.
Section 1. Definitions. As used in this Agreement, 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.
"Capital Stock" shall mean all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock.
"Common Stock" shall mean the meaning set forth in the recitals to
this Agreement.
"Current Market Value" shall mean the average closing price on The
Nasdaq National Market of the Company's Common Stock for the ten (10)
consecutive trading days ending one (1) day prior to the date of any
calculation; provided, however, that if there are no trades on any such trading
day, the closing price shall be the average of the closing bid and asked prices
for such day; provided, further, however, that if the Common Stock is not then
listed on The Nasdaq National Market, the Current Market Value shall mean the
average closing price either of the principal stock exchange on which the Common
Stock is listed, or of the quotation system, operated by a national securities
association, on which the Common Stock is quoted, for the ten (10) consecutive
trading days ending one (1) day prior to the date of any calculation; however,
if there are no trades on any such trading day, the closing price shall be the
average of the closing bid and asked prices for such day.
"Delay Notice" shall have the meaning set forth in Section 6(b)
hereof.
"Encumbrance" means any lien, pledge, mortgage, security interest,
charge, restriction, adverse claim or other encumbrance of any kind or nature
whatsoever.
"Hold-Back Election" shall have the meaning set forth in Section
6(a) hereof.
"Material Development Condition" shall have the meaning set forth in
Section 6(b) hereof.
"Other Holders" shall have the meaning set forth in Section 3(c)
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 Common Stock and the shares
of Common Stock issuable upon the exercise of the Warrants purchased by the
Stockholder from the Company pursuant to the Subscription 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 definition set forth in
Section 7 hereof.
"Registration Period" shall have the definition set forth in Section
3(b) hereof.
"Registration Statement" shall mean any registration statement which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus included therein, all amendments and
supplements to such Registration Statement, including post-effective amendments,
all exhibits 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.
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"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
thereunder, as the same are in effect from time to time.
"Shelf Registration" shall have the meaning set forth in Section
3(a) hereof.
"Subscription Agreement" shall have the definition set forth in the
recitals to this Agreement.
"Underwritten Offering" shall mean a registered offering in which
securities of the Company are sold to an underwriter pursuant to a firm
commitment underwriting agreement for reoffering to the public.
"Warrants" shall mean the five year warrants to purchase Common
Stock issued to the Stockholder pursuant to the Subscription Agreement.
Section 2. Securities Subject to this Agreement. The securities
entitled to the benefits of this Agreement 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 Stockholder 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
has 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. Shelf Registration.
(a) Filing. The Company shall use its commercially reasonable
efforts to file, as expeditiously as possible, but in any event no later than
seventy five (75) days after the date hereof, a Registration Statement on Form
S-3 (or any successor form) covering all Registrable Securities (the "Shelf
Registration"). The Stockholder represents and warrants to and agrees with the
Company that it is not affiliated or associated with a member of the NASD, or
that if it is, the Company may not be entitled to include the undersigned's
Registrable Securities in the Shelf Registration.
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(b) Effectiveness of Registration Statement. Subject to the
provisions of Section 6(b) hereof, the Company agrees to use its commercially
reasonable efforts to (i) cause the Registration Statement(s) relating to the
Shelf Registration described in Section 3(a) hereof to become effective as
promptly as practicable, and (ii) thereafter keep such Registration Statement
effective continuously for the period (the "Registration Period") ending on the
earlier of (A) one year from the closing under the Subscription Agreement and
(B) the date on which all Registrable Securities covered by such Registration
Statement have been sold and the distribution contemplated thereby has been
completed.
(c) 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 Shelf Registration effected pursuant to this
Section 3.
Section 4. Piggyback Registration. If the Company at any time
proposes to file a registration statement with respect to its Common Stock,
whether for its own account or for the account of an Other Holder or Other
Holders that have requested such registration (a "Requesting Securityholder"),
and such registration statement covers an Underwritten Offering, then the
Company shall in each case give written notice of such proposed filing to the
Stockholder at least twenty (20) days before the anticipated filing date of any
such registration statement by the Company, and such notice shall offer to the
Stockholder the opportunity to have any or all of the Registrable Securities
held by the Stockholder included in such registration statement. If the
Stockholder desires to have its Registrable Securities registered under this
Section 4, it shall so advise the Company in writing within ten (10) days after
the date of receipt of such notice (which request 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 the managing underwriter or underwriters of
any such proposed public offering advises the Company that the total amount or
kind of securities which the Stockholder, the Company and any other Persons
intended to be included in such proposed public offering is sufficiently large
to adversely affect the success of such proposed public offering, then the
number of shares of Common Stock to be offered for the accounts of the
Stockholder and the Other Holders shall be reduced pro rata, based upon the
aggregate number of securities to be offered for the accounts of the Stockholder
and all Other Holders (except the Company and the Requesting Securityholder)
intended to be included in such offering, to the extent necessary to reduce the
total number of securities to be included in such proposed public offering to
the number recommended by such managing underwriter or underwriters before the
securities offered by the Company or any Requesting Securityholder are so
reduced. Anything to the contrary in this Agreement 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 liability or obligation to the
Stockholder.
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:
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(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 time periods set forth in Section 3(b),
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, and, provided, further, that as soon as
practicable, but in no event later than three (3) Business Days before
filing such Registration Statement, the Company shall furnish to the
Stockholder copies of all such documents proposed to be filed, which
documents shall be subject to the review of the Stockholder;
(ii) notify the Stockholder 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 filing
(and to reply thereto as promptly as reasonably practicable), (4) of any
stop order suspending the effectiveness of any Registration Statement or
the initiation of any proceedings for that purpose (and use commercially
reasonable efforts to obtain the withdrawal of such order), (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 the Stockholder, promptly
incorporate in a Prospectus supplement or post-effective amendment such
information with respect to the Stockholder and its proposed plan of
distribution as the Stockholder reasonably requests be included therein;
and promptly make all required filings of such Prospectus supplement or
post-effective amendment;
(iv) furnish to the Stockholder, 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 Stockholder, without charge, as many
copies of the then effective Prospectus (including each prospectus subject
to completion) and any amendments or supplements thereto as the
Stockholder may reasonably request;
(vi) use commercially reasonable efforts to register or
qualify or cooperate with the Stockholder 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
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Stockholder 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 Stockholder 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 the managing underwriters 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.; and
(x) upon reasonable notice and during normal business
hours, provide reasonable access to Company's personnel and auditors for
the purpose of permitting the Stockholder 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 Stockholder to furnish to the Company
such information regarding the Stockholder and the distribution of such
securities as the Company may from time to time reasonably request to comply
with the applicable provisions of the Securities Act.
(b) Cessation of Sales. The Stockholder agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in Section 5(a)(ii) hereof, the Stockholder will forthwith discontinue
disposition of Registrable Securities pursuant to the then current Prospectus
until (1) the Stockholder is 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 Stockholder receives copies of any
required supplemented or amended Prospectus, or until the Stockholder is advised
in writing by the Company that the use of the Prospectus may be resumed;
provided, however, that the Company shall use its 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 Stockholder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in the Stockholder's possession, of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice.
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Section 6. Holdback Agreements.
(a) Hold-Back Election. In the case of the registration of any
underwritten primary 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
underwritten secondary offering initiated at the request of a Requesting
Securityholder, the Stockholder agrees that if it is reasonably requested to do
so by the managing underwriter or the underwriters, then the Stockholder shall
not effect any public sale or distribution of Capital Stock of the Company,
except as part of such underwritten registration, 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 the managing underwriter or
underwriters).
(b) Material Development Condition. With respect to any Registration
Statement filed or to be filed pursuant to Section 3, 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 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
impracticable or materially disadvantageous (a "Material Development Condition")
to the Company or any subsidiary or its stockholders to file such Registration
Statement with the SEC, then the Company shall, notwithstanding any other
provisions of this Agreement, 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 the Stockholder, (i) to cause sales of Registrable
Securities by the Stockholder 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 no longer exists
(notice of which the Company shall promptly deliver to the Stockholder).
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 ninety (90) consecutive days from the giving of its Delay
Notice to the Stockholder 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 the Registrable Securities to be filed with the
Commission as soon as practicable after such Material Development Condition
ceases to exist or, if sooner, as soon as practicable after the expiration of
such ninety (90) day period.
(c) Limitation on Piggyback Registration Rights. Anything to the
contrary contained in this Agreement notwithstanding, when in the opinion of
counsel for the Company, registration of the Registrable Securities owned by the
Stockholder is not required by the Securities Act and other applicable
securities laws in connection with a proposed sale of such Registrable
Securities, the Stockholder shall have no rights pursuant to Section 4 hereof to
request Registrable Securities be included in a registration statement in
connection with such proposed sale and the Company shall promptly provide to the
transfer agent and such Stockholder's broker in connection with any sale
transaction an opinion to the effect set forth above, reasonably sufficient in
form and
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substance to permit the transfer agent to issue stock certificates for such
Registrable Securities without any legend restricting transfer thereof.
Section 7. Registration Expenses. All expenses incident to the
Company's performance of or compliance with this Agreement, 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 Act 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
Stockholder, out-of-pocket expenses incurred by the Stockholder and underwriting
discounts, commissions, brokerage or other 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 Stockholder and its respective officers, directors, stockholders, employees,
advisors and agents, and each Person who control the Stockholder (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 Stockholder or any
underwriters expressly 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 Stockholder, if so requested.
(b) Indemnification by the Stockholder. In connection with any
Registration Statement, the Stockholder 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, 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 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
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or omission is caused by or contained in any information or affidavit so
furnished in writing by the Stockholder to the Company. The Stockholder shall
not be required to provide indemnification or contribution hereunder in excess
of an amount equal to the net proceeds to the Stockholder from the disposition
of the Registrable Securities disposed of by the Stockholder pursuant to such
registration.
(c) Conduct of Indemnification Proceedings. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel of such
indemnifying party'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 the indemnifying party shall have failed to assume the defense of such
claim and employ counsel reasonably satisfactory to the indemnified party in a
timely manner. The indemnifying party will not be subject to any liability for
any settlement made without its consent. No indemnified party 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 party of a release from all liability in respect of such
claim or litigation. An indemnifying party 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 parties indemnified by such indemnifying party with
respect to such claim.
(d) Contribution. If for any reason the indemnification provided for
in Section 8(a) or Section 8(b) is unavailable to an indemnified party or is
insufficient to hold it harmless as contemplated by Section 8(a) and Section
8(b), then the indemnifying party shall contribute to the amount paid or payable
by the indemnified party 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 party and the indemnified party, but also
the relative fault of the indemnifying party and the indemnified party, as well
as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement or the omission or alleged omission relates to information
supplied by the indemnifying party or parties on the one hand, or the
indemnified party or parties on the other hand, and the parties' 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) Conflict with Underwriting Agreement. 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
Stockholder may participate in any Underwritten Offering hereunder unless it (i)
agrees 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) completes and executes all
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questionnaires, powers of attorney, 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.
Section 10. Amendments and Waivers. The provisions of this
Agreement, including the provisions of this Section 10, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless such amendment, modification or
waiver is in writing and duly executed by the party or parties against which it
is to be enforced. No waiver of any provision of this Agreement shall constitute
a waiver of any other provision of this Agreement 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 Agreement.
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 Stockholder, at the most current address given
by the Stockholder to the Company, in accordance with the provisions of
this Section 11, which address (including facsimile number) initially is
set forth under the Stockholder's signature on the signature page hereto.
(b) If to the Company, initially at 000 Xxxxx Xxxxxx, Xxx
Xxxx, XX 00000, attention: Xxxxxx X. Xxxxxx, Chief Financial Officer,
facsimile No.: (000) 000-0000, and thereafter at such other address 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.
(c) 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. Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
Section 13. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
Section 14. Governing Law. THIS AGREEMENT 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.
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Section 15. Jurisdiction; Forum; Waiver of Trial by Jury. Each
party hereto consents and submits 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 Agreement. Each party hereto waives 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 Agreement 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. Each party hereto agrees that personal service of
process may be effected by any of the means specified in Section 11 hereof,
addressed to such party. The foregoing shall not limit the rights of any party
to serve process in any other manner permitted by law. EACH OF THE PARTIES
HERETO 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 AGREEMENT.
Section 16. 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 respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
Section 17. Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the parties hereto. Except as otherwise
expressly provided in Section 8, hereof, this Agreement shall not confer any
rights or remedies upon any Person other than the parties hereto and their
respective heirs, personal representatives, legatees, successors and permitted
assigns. A Stockholder may assign its rights under this Agreement to any of its
members or partners to which it transfers Registrable Securities, and any such
member or partner may assign such rights to members of his immediate family
and/or trusts for their benefit in connection with a transfer of Registrable
Securities to such family member or trust.
Section 18. Entire Agreement. This Agreement 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 Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
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IN WITNESS WHEREOF, the Company has executed this Registration Rights
Agreement as of the date first written above.
INTERNET COMMERCE CORPORATION
By: /s/ G. Xxxxxxx Xxxxxxx
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Name: G. Xxxxxxx Xxxxxxx
Title: President and Chief Executive Officer
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By:
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Name:
Title:
Address:
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Facsimile No:
12
