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EXHIBIT 10.23
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June 2, 1999
Xxxxx and Xxxxxx X. Xxxxx
X.X. Xxxxxx 000
Xxx Xxxxxx, Xxx Xxxxxx 87504-0250
Registration Rights Letter Agreement
Dear Mr. and Xxx. Xxxxx:
This letter will confirm our agreement and understanding with respect to
certain rights to register, under the Securities Act of 1933, as amended
(the "Act"), and applicable state securities laws ("Blue Sky Laws"), the
offer and sale of up to thirty percent (30%) of the shares of the $.0001
par value common stock (the "Subject Shares") of Internet Media
Corporation, a Nevada corporation (the "Company"), received, and currently
owned, by you under that certain Agreement and Plan of Reorganization (the
"Reorganization Agreement") among the Company, Santa Fe Wireless Internet,
Inc. and Santa Fe Trail Internet Plus, Inc. It is our understanding that:
1. Registration Rights. Should the Company file a registration statement
(the "Registration Statement") under the Act, you may demand, in writing,
the inclusion of the Subject Shares in the Registration Statement. Your
right to such registration is exercisable only with respect to the
Registration Statement first filed by the Company following the closing
under the Reorganization Agreement. Not less than 15 days prior to the
filing of the Registration Statement, the Company shall notify you in
writing of its intention to file the Registration Statement. Within 10
days from receipt of the Company's notice, you shall provide the Company
written advice as to your desire to have the Subject Shares included in the
Registration Statement.
2. Expenses. All expenses incurred in connection with the registration of
the Subject Shares requested pursuant to Section 1, including, without
limitation, all accounting and printing costs and fees, filing fees and
reasonable attorney fees incurred, shall be paid by you, on a pro rata
basis, based on the percentage that your shares bear to all shares being
registered under the Registration Statement. In this regard, the Company
reserves the right to include additional selling shareholders in any
registration proceeding contemplated hereby.
3. Registration Procedures. At such time as the Company is required to
register any of the Subject Shares hereunder, the Company will promptly:
(a) prepare and file, in a timely manner, with the Securities and
Exchange Commission (the "Commission"), a Registration Statement with
respect to the Subject Shares and use its best efforts to cause such
Registration Statement to become effective, such Registration Statement to
comply as to form and content and in all material respects to the
Commission's forms, rules and regulations;
(b) prepare and file with the Commission such amendments and supplements
to the Registration Statement, the prospectus and any summary or
preliminary prospectus forming a part of, and used in connection therewith,
as may be necessary to keep such Registration Statement and prospectus
effective and current and to comply with the provisions of the Act with
respect to the disposition of all of the Subject Shares and other
securities, if any, covered by such Registration Statement until the
earlier of such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or
sellers thereof set forth in such Registration Statement or the expiration
of 120 days after such Registration Statement becomes effective; and will
furnish to you prior to the filing thereof a copy of any amendment or
supplement to such Registration Statement or prospectus and shall not file
any such amendment or supplement to which you shall have reasonably
objected on the grounds that such amendment or supplement does not comply
in all material respects with the requirements of the Act or the rules or
regulations thereunder;
(c) furnish to you such number of conformed copies of such Registration
Statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included
in such Registration Statement (including each preliminary prospectus and
any summary prospectus), all in conformity as to form and substance with
the requirements of the Act, such number of copies of documents, if any,
incorporated by reference in such Registration Statement or prospectus, and
such other documents, as you may reasonably request;
(d) use its best efforts to register or qualify all the Subject Shares
covered by such Registration Statement under such other securities or blue
sky laws of such U.S. jurisdictions, as reasonably requested by you, that
permit "registration by coordination" of securities offerings (the Company
shall not be required to register or qualify the Subject Shares in any
state invoking merit review authority), to keep such registration or
qualification in effect for a minimum of 120 days after its initial
effective date, and do any and all other acts and things which may be
necessary or advisable to enable you to consummate the disposition in such
jurisdictions of your Subject Shares covered by such Registration
Statement, except that the Company 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
subdivision (d), be obligated to be so qualified, or to subject itself to
taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(e) furnish to you a signed counterpart, addressed to you, of (i) an
opinion of counsel for the Company, dated the effective date of such
Registration Statement, and (ii) a "comfort" letter, dated the effective
date of such Registration Statement, signed by the independent public
accountants who have certified the Company'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 such 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 underwriters in underwritten public offerings of
securities and such other legal and financial matters, as you may
reasonably request;
(f) immediately notify you, at any time, when a prospectus relating
thereto is required to be delivered under the Act, 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 light of the circumstances then existing, and, at your
request, prepare and furnish to you 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 the Subject Shares, such
prospectus shall not include any untrue statement of a material fact or
omit 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 then existing;
(g) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its securities
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months beginning with the first month of the
first fiscal quarter after the effective date of such Registration
Statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Act; and
(h) provide and cause to be maintained a transfer agent and registrar for
the Subject Shares covered by such Registration Statement from and after a
date not later than the effective date of such Registration Statement.
The Company may require you to furnish the Company such information
regarding your sales of the Subject Shares as the Company may from time to
time reasonably request in writing and as shall be required by law or by
the Commission in connection therewith. Such information shall be
furnished in writing by you stating that it is for use in the preparation
of such Registration Statement and all prospectuses and supplements or
amendments thereto.
4. Preparation; Reasonable Investigation. In connection with the
preparation and filing of the Registration Statement registering your
Subject Shares under the Act, the Company will give you and your
underwriters, if any, and your counsel and accountants at your own expense,
the opportunity to participate in the preparation of such Registration
Statement, each prospectus included therein and filed with the Commission
and each amendment thereof or supplement thereto, and will give each of
them such access to its books and records and such opportunities to discuss
the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be
necessary in the opinion of you and such underwriter or your respective
counsel, to conduct a reasonable investigation within the meaning of the Act.
5. Indemnification.
(a) Indemnification by the Company. In the event of registration of your
Subject Shares under the Act, the Company will, and hereby does, indemnify
and hold you harmless, against any and all losses, claims, damages,
liabilities or expenses, joint or several (including, without limitation,
the costs and expenses of investigating, preparing for and defending any
legal proceeding, including reasonable attorneys' fees) to which you may
become subject under the Act or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions or proceedings in respect
thereof) arise out of, or are based upon, (i) any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement under which your Subject Shares were registered under the Act,
any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any document
incorporated by reference therein, or (ii) any omission or alleged omission
to state therein a material fact required to be stated therein or necessary
to make the statements therein not misleading, and the Company will
reimburse you for any legal or any other expenses reasonably incurred by
you in connection with investigating or defending any such loss, claim,
liability, action or proceeding; provided, however, that the Company shall
not be liable in any such case to the extent that any such loss, claim,
damage, liability or expense (or action or proceeding in respect thereof)
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration
Statement, any such preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement in reliance upon, and in conformity
with, written information furnished to the Company through an instrument
duly executed by you stating that it is for use in the preparation thereof.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of you and shall survive the transfer of
the Subject Shares by you.
(b) Indemnification by You. In the event of registration of your Subject
Shares under the Act, pursuant to which you offer or sell Subject Shares
covered by such Registration Statement, you will, and hereby do, indemnify
and hold harmless (in the same manner and to the same extent as set forth
in subdivision (a) of this Section 5) the Company, each director of the
Company, each officer of the Company who shall sign such Registration
Statement and each other person, if any, who controls the Company within
the meaning of the Act, with respect to any statement in, or omission from,
such Registration Statement, any preliminary prospectus, final prospectus
or summary prospectus included therein, or any amendment or supplement
thereto, if such statement or omission was made in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by you specifically stating that it is for use in
the preparation of such Registration Statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company or any such director,
officer or controlling person and shall survive the transfer of Subject
Shares by you.
(c) Notice of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section 5, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the
commencement of such action, provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of
this Section 5. In case any such action is brought against an indemnified
party, unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying party may exist in
respect of such claim, the indemnifying party shall be entitled to
participate in, and to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the consent of the indemnified party, consent to entry of any judgment or
enter into any settlement of such proceedings which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a complete and unconditional release from all
liability in respect to such claim or litigation.
(d) Indemnification Payments. The indemnification required by this
Section 5 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received
or expense, loss, damage or liability is incurred.
(e) Contribution. If the indemnification provided for in this Section 5
is held by a court of competent jurisdiction to be unavailable with respect
to any loss, liability, claim, damage or expense referred to herein, then
the indemnifying party, in lieu of indemnifying such indemnified party
hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, damage or expense,
in such manner as the underwriter(s) shall require in the underwriting
agreement and, to the extent not specified therein with respect to any
indemnified party contemplated by this Section 5 as entitled to
indemnification, in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of such
indemnified party on the other in connection with the actual or alleged
statements or omissions which resulted in such loss, liability, damage or
expense, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of such indemnified party
shall be determined by reference to, among other things, whether the untrue
or allegedly 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 by such indemnified party and the parties' relative
intent, knowledge, access to information and opportunities to correct or
prevent such statement or omission. The indemnity and contribution
provided herein shall be in addition to, and not in lieu of, any other
liability that one party may have to another.
6. Arbitration. In the event of any dispute between the parties arising
out of this Agreement, relating to any question of contract or tort,
including any claims allegedly based on a violation of any securities laws
or regulations, state or federal, both the Company and you agree to submit
such dispute through the American Arbitration Association (the
"Association") at the Association's Dallas, Texas, offices, in accordance
with the then-current rules of the Association; the award given by the
arbitrators shall be binding and a judgment can be obtained on any such
award in any court of competent jurisdiction. It is expressly agreed that
the arbitrators, as part of their award, can award attorneys fees to the
prevailing party.
7. Amendments and Waivers. This Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained
your written consent to such amendment, action or omissions to act.
8. Notices. Notices and other communications under this Agreement shall
be in writing and shall be sent by registered mail, postage prepaid,
addressed:
(a) if to you, at the address shown above, unless you have advised the
Company in writing of a different address as to which notices shall be sent
under this Agreement; and
(b) if to the Company, at 0000 Xxxxxxxx Xxxx Xxxx, Xxxxx Xxxxx, Xxxxxxxxx
00000, to the attention of Xx. Xxxxx X. Xxxxxx, President, or to such other
address as the Company shall have furnished to you.
9. Miscellaneous. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the respective successors and assigns of
the parties hereto, whether so expressed or not. This Agreement embodies
the entire agreement and understanding between the Company and you with
respect to the subject matter hereof and supersedes all prior agreements
and understandings relating to the subject matter hereof. This Agreement
shall be construed and enforced in accordance with, and governed by, the
law of the State of Louisiana. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the
meaning hereof. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
If the foregoing correctly sets forth our agreement, please so indicate by
executing a counterpart of this letter in the space provided below and
returning it to us.
Yours very truly,
INTERNET MEDIA CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Vice President
AGREED AND ACCEPTED as of the
date and year first above written:
/s/ Xxxxx Xxxxx
Xxxxx Xxxxx
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
