REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of March 9, 2000, between Vizacom
Inc., a Delaware corporation (the "Company") and each of the stockholders of the
Company set forth on the signature page hereto (the "Stockholders").
WHEREAS, this Agreement has been entered into in connection with a Share
Purchase Agreement dated as of March 9, 2000 (the "Purchase Agreement"),
among the Company, each of the Selling Stockholders set forth on the signature
page thereto and Junction 15 Limited.
NOW, THEREFORE, it is agreed as follows:
1. Defined Terms. Each of the following terms shall have the following
meanings (such definitions to be applicable to both the plural and singular of
the terms defined):
(a) Registerable Securities. The term "Registerable Securities"
shall mean any of the shares of Capital Stock of the Company, including any
shares of Common Stock or other securities received in connection with any
stock split, stock dividend, merger, reorganization, recapitalization,
reclassification or other distribution payable or issuable upon shares of
Common Stock. For the purposes of this Agreement, securities will cease to
be Registerable Securities when (A) a registration statement under the
Securities Act covering such Registerable Securities has been declared
effective and such registration statement has been effective for nine (9)
months after the expiration of the period specified in section 2 of the
Lock-up Agreements of even date herewith between the Company and each of
Stockholders, (B) such Registerable Securities are distributed to the
public pursuant to the Securities Act or pursuant to an exemption from the
registration requirements of the Securities Act, including, but not limited
to, Rules 144 and 144A promulgated under the Securities Act, or (C) such
Registerable Securities have been otherwise transferred and the Company, in
accordance with applicable law and regulations, has delivered new
certificates or other evidences of ownership for such securities which are
not subject to any stop transfer order or other restriction on transfer.
(b) Rightsholders. The term "Rightsholders" shall include the
undersigned, all successors and assigns of the undersigned, and all
transferees of Registerable Securities where such transfer affirmatively
includes the transfer and assignment of the rights of the transferor
Rightsholder under this Agreement with respect to the transferred
Registerable Securities.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and
subsection, paragraph, clause, schedule and exhibit references are to this
Agreement unless otherwise specified.
(d) Capitalized terms used herein but not otherwise defined shall
have the meanings given to them in the Purchase Agreement.
2. Piggy-Back Registration.
(a) If, at any time on or after the Closing Date and on or prior
to three years from the Closing Date, the Company proposes to file a
registration statement under the Securities Act with respect to an offering
by the Company or any other party of any class of equity security similar
to any Registerable Securities (other than a registration statement in
connection with an underwritten public offering of the Company's common
stock or a registration statement on Form S-4 or S-8 or any successor form
or a registration statement filed solely in connection with an exchange
offer, a business combination transaction or an offering of securities
solely to the existing stockholders or employees of the Company), then the
Company, on each such occasion, shall give written notice (each, a "Company
PiggyBack Notice") of such proposed filing to all of the Rightsholders
owning Registerable Securities at least 20 days before the anticipated
filing date of such registration statement, and such Company Piggy-Back
Notice also shall be required to offer to such Rightsholders the
opportunity to register such aggregate number of Registerable Securities as
each such Rightsholder may request. Each such Rightsholder shall have the
right, exercisable for the 10 days immediately following the giving of the
Company Piggy-Back Notice, to request, by written notice (each, a "Holder
Notice") to the Company, the inclusion of all or any portion of the
Registerable Securities of such Rightsholders in such registration
statement. The Company shall use reasonable efforts to cause the managing
underwriter(s) of a proposed underwritten offering to permit the inclusion
of the Registerable Securities which were the subject of all Holder Notices
in such underwritten offering on the same terms and conditions as any
similar securities of the Company included therein. Notwithstanding
anything to the contrary contained in this Paragraph 2(a), if the managing
underwriter(s) of such underwritten offering or any proposed underwritten
offering delivers a written opinion to the Rightsholders of Registerable
Securities which were the subject of all Holder Notices that the total
amount and kind of securities which they, the Company and any other person
intend to include in such offering is such as to materially and adversely
affect the success of such offering, then the amount of securities to be
offered for the accounts of such Rightsholders and persons other than the
Company shall be eliminated or reduced pro rata (based on the amount of
securities owned by such Rightsholders and other persons which carry
registration rights) to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount recommended by
such managing underwriter(s) in its written opinion.
(b) Demand Registration.
(i) Right to Demand. Subject to Paragraph 2(b)(ii) hereof, at any
time on or after twelve months after the Closing Date (or such earlier date
on which Registerable Securities are release from escrow in connection with
Section 4.2 of the Share Purchase Agreement) and on or prior to three years
from the Closing Date, the Initiating Holders (as defined in paragraph
2(b)(vi) below) may make a written request (each, a "Demand Request") to
the Company for registration under the Securities Act of all or part of
their Registerable Securities (each, a "Demand Registration"). Within ten
days after receipt of a Demand Request, the Company shall deliver a written
notice (the "Notice") of such Demand Request to all other
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Rightsholders. The Company will include in such Demand Registration all
Registerable Securities with respect to which the Company has been given written
requests (each, "Tag-Along Request") for inclusion therein within twenty days
after the giving of the Notice. Each and every Demand Request shall be required
to specify the aggregate amount of the Registerable Securities to be included in
such Demand Registration, the amount of Registerable Securities to be registered
for each of the Initiating Holders and the intended method(s) of disposition
thereof, including whether or not such Demand Registration or portion thereof is
to relate to an underwritten offering, the name of the managing underwriter(s),
if any, and the terms of any such underwriting. Each and every Tag-Along Request
shall be required to specify the amount of Registerable Securities to be
registered in the Demand Registration and the intended method(s) of disposition
thereof, including whether or not the Registerable Securities subject to such
Tag-Along Request or portion thereof is to relate to an underwritten offering,
the name of the managing underwriter(s), if any, and the terms of any such
underwriting.
(ii) Number of Demand Registrations; Expenses. Subject to the
provisions of Paragraph 2(b)(iii) hereof, the holders of Registerable Securities
shall be entitled, in the aggregate, to one Demand Registration, the
Registration Expenses (as defined in Section 4 hereof) of which, subject to the
provisions of Section 4, shall be borne by the Company, but the Company shall
not be responsible for the payment of any underwriter's discount, commission or
selling concession in connection with any of the Registrable Securities. The
Company shall not be deemed to have effected a Demand Registration unless and
until such Demand Registration is declared effective.
(iii) Priority on Demand Registrations.
(A) Whenever the Company shall effect a Demand Registration in
connection with an underwritten offering by one or more Initiating Holders, no
other securities, including other Registerable Securities shall be included in
such Demand Registration, unless (1) the managing underwriter(s) with respect to
such Demand Registration shall have advised the Company and each Initiating
Holder whose Registerable Securities were included in the Demand Request, in
writing, that the inclusion of such other securities would not adversely affect
such underwritten offering or (2) each of the Initiating Holders shall each have
consented in writing to the inclusion of such other securities. In the event of
such written advice of the managing underwriter(s) or unanimous consent of such
Initiating Holders, the Company will include in such Demand Registration
securities in the following order of priority until the maximum number of
securities included in the written advice of the managing underwriter(s) or
unanimous consent of such Initiating Holders shall be reached: (1) first, pro
rata (based upon the amount of Registerable Securities) among the Registerable
Securities included in the Demand Request which are subject to the underwritten
offering, (2) second, pro rata (based upon the amount of Registerable
Securities) among the Registerable Securities of the other holders (each, a
"Rightsholder") of registration rights granted by the Company in connection with
the sale of the Shares who have given a Tag-Along Request with respect to such
Demand Registration where the method of distribution shall be pursuant to an
underwritten offering, (3) third, pro rata (based
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upon the amount of Registerable Securities) among all other Registerable
Securities included in the Demand Request and Tag-Along Request(s) and (4)
fourth, pro rata (based upon the amount of securities owned which carry
registration rights) among all other securities to which the Company has granted
registration rights and for which a request for inclusion in the Demand
Registration shall have been made.
(B) Whenever the Company shall effect a Demand Registration in
connection with an offering of Registerable Securities of Initiating Holders for
which the intended method(s) of distribution shall not include an underwritten
offering, and the holders of a majority of the Registerable Securities which
were subject to the Demand Request shall advise the Company in writing that, in
the opinion of such Initiating Holders, the number of securities proposed to be
sold in such Demand Registration would adversely affect such offering and the
Board of Directors of the Company concurs with such conclusion, the Company will
include in such Demand Registration securities in the following order of
priority until the maximum number of securities included in the written advice
of such Initiating Holders shall be reached: (1) first, pro rata (based upon the
amount of Registerable Securities) among the Registerable Securities included in
the Demand Request, (2) second, pro rata (based upon the amount of Registerable
Securities) among the Registerable Securities of the Rightsholders who have
given a Tag-Along Request with respect to such Demand Registration where the
method of distribution shall be pursuant to an underwritten offering, (3) third,
pro rata (based upon the amount of Registerable Securities) among all other
Registerable Securities included in the Demand Request and Tag-Along Request(s)
and (4) fourth, pro rata (based upon the amount of securities owned which carry
registration rights) among all other securities to which the Company has granted
registration rights and for which a request for inclusion in the Demand
Registration shall have been made.
(C) In the event that Initiating Holders and other Rightsholders
who have given a Tag-Along Request are unable to have registered the full amount
of Registerable Securities which they requested to be registered pursuant to a
Demand Request or Tag-Along Request, pursuant to the provisions of this Section
2(b), such Initiating Holders and other Rightsholders shall retain the right to
one Demand Registration with respect to such unregistered Registerable
Securities subject to such Demand Request and Tag-Along Request.
(iv) Delay in Effecting Demand Registration. Notwithstanding anything
in the foregoing to the contrary, the Company shall not be obligated to effect a
Demand Registration at any time when the Company, in the good faith judgment of
its Board of Directors made no later than 30 days after the giving of the Demand
Request with respect to such Demand Registration, reasonably believes that the
filing thereof at the time requested, or the offering of securities pursuant
thereto, would be materially detrimental to the interests of Company or its
stockholders. The effectuation of a Demand Registration cannot be suspended,
pursuant to the provisions of the preceding sentence, on more than one occasion
in any twelve-month period or for more than 120 days after the date of the
Board's determination referenced in the preceding sentence.
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(v) Approval of Underwriter by the Company and Placement Agent. If
the Demand Registration is to involve an underwritten offering, the managing
underwriter(s) and each selling agent selected by those Rightsholders
participating in each such underwritten offering shall be subject to the written
approval of the Company, which approval may not be unreasonably withheld.
(vi) "Initiating Holders" Defined. For purposes of this Agreement, the
term "Initiating Holders" shall mean, on any given date, those Rightsholders
holding Registerable Securities which would aggregate 50% or more of the total
Registerable Securities that would be outstanding on such date.
(c) Number of Piggy-Back Registrations; Expenses. The obligations of
the Company under this Section 2 shall be unlimited with respect to each
Rightsholder. Subject to the provisions of Section 4 hereof, the Company will
pay all Registration Expenses in connection with any registration of
Registerable Securities effected pursuant to this Section 2, but the Company
shall not be responsible for the payment of any underwriter's discount,
commission or selling concession in connection therewith.
(d) Withdrawal or Suspension of Registration Statement.
Notwithstanding anything contained to the contrary in this Section 2, the
Company shall have the absolute right, whether before or after the giving of a
Company Piggy-Back Notice or Holder Notice, not to be obligated to fulfill the
requirements to file a registration statement to which the Rightsholders shall
have the right to include their Registerable Securities therein pursuant to this
Section 2, to withdraw such registration statement or to delay or suspend
pursuing the effectiveness of such registration statement for up to 180 days, if
the Board of Directors of the Company reasonably determines such action or
inaction to be in the best interests of the Company or required by law. In the
event of such a determination after the giving of a Company Piggy-Back Notice,
the Company shall give notice of such determination to all Rightsholders and,
thereupon, (i) in the case of a determination not to register or to withdraw
such registration statement, the Company shall be relieved of its obligation
under this Section 2 to register any of the Registerable Securities in
connection with such registration and (ii) in the case of a determination to
delay the registration, the Company shall be permitted to delay or suspend the
registration of Registerable Securities pursuant to this Section 2 for the same
period as the delay in the registration of such other securities. No
registration effected under this Section 2 shall relieve the Company of its
obligation to effect any registration upon demand otherwise granted to a
Rightsholder under any other agreement with the Company.
3. Registration Procedures.
(a) Obligations of the Company. The Company will, in connection with
any registration pursuant to Section 2 hereof, as expeditiously as possible:
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(i) prepare and file with the Commission a registration statement
under the Securities Act on any appropriate form chosen by the Company, in its
sole discretion, which shall be available for the sale of all Registerable
Securities to be included for sale in accordance with the intended method(s) of
distribution thereof set forth in all applicable Holder Notices, and use its
commercially reasonable best efforts to cause such registration statement to
become effective as soon thereafter as reasonably practicable but in no event
more than 100 days after receipt of such notices or requests; provided, that,
(A) after such filing, the Company shall, as diligently as practicable, provide
to each such Rightsholders such number of copies of such registration statement,
each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus), all exhibits
thereto and documents incorporated by reference therein and such other documents
as such Rightsholder may reasonably request in order to facilitate the
disposition of the Registerable Securities owned by such Rightsholder and
included in such registration statement; (B) the Company shall modify or amend
the registration statement as it relates to such Rightsholder as reasonably
requested by such Rightsholder on a timely basis, and shall reasonably consider
other changes to the registration statement (but not including any exhibit or
document incorporated therein by reference) reasonably requested by such
Rightsholder on a timely basis, in light of the requirements of the Securities
Act and any other applicable laws and regulations; and (C) that the obligation
of the Company to effect such registration and/or cause such registration
statement to become effective, may be postponed for (x) such period of time when
the financial statements of the Company required to be included in such
registration statement are not available (due solely to the fact that such
financial statements have not been prepared in the regular course of business of
the Company) or (y) any other bona fide corporate purpose, but then only for a
period not to exceed 120 days;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to a registration statement as may be necessary to
keep such registration statement effective for up to nine months; and cause the
related prospectus to be supplemented by any required prospectus supplement, and
as so supplemented to be filed to the extent required pursuant to Rule 424
promulgated under the Securities Act, during such nine-month period; and
otherwise comply with the provisions of the Securities Act with respect to the
disposition of all Registerable Securities covered by such registration
statement during the applicable period in accordance with the intended method(s)
of disposition of such Registerable Securities set forth in such registration
statement, prospectus or supplement to such prospectus;
(iii) notify the Rightsholders whose Registerable Securities are
included in such registration statement and the managing underwriter(s), if any,
of an underwritten offering of any of the Registerable Securities included in
such registration statement, and confirm such advice in writing, (A) when a
prospectus or any prospectus supplement or post-effective amendment has been
filed, and, with respect to a registration statement or any post-effective
amendment, when the same has become effective, (B) of any request by the
Commission for amendments or supplements to a registration statement or related
prospectus or for additional information, (C) of the issuance by the Commission
of any stop order suspending the
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effectiveness of a registration statement or the initiation of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company contemplated by clause (A) of Paragraph 3(a)(x) hereof
cease to be true and correct, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any of the
Registerable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (F) of the happening of any
event which makes any statement made in the registration statement, the
prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the registration statement or prospectus
so that such registration statement, prospectus or document incorporated by
reference will not contain any untrue statement of material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading;
(iv) make reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement at the
earliest possible moment and to prevent the entry of such an order;
(v) use reasonable efforts to register or qualify the
Registerable Securities included in such registration statement under such other
securities or blue sky laws of such jurisdictions as any Rightsholder whose
Registrable Securities are included in such registration statement reasonably
requests in writing and do any and all other acts and things which may be
necessary or advisable to enable such Rightsholder to consummate the disposition
in such jurisdictions of such Registerable Securities; provided, that the
Company will not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Paragraph 3(a)(v), (B) subject itself to taxation in any such jurisdiction or
(C) take any action which would subject it to general service of process in any
such jurisdiction;
(vi) cooperate with the Rightsholder whose Registerable
Securities are included in such registration statement and the managing
underwriter(s), if any, to facilitate the timely preparation and delivery of
certificates representing Registerable Securities to be sold thereunder, not
bearing any restrictive legends, and enable such Registerable Securities to be
in such denominations and registered in such names as such Rightsholder or any
managing underwriter(s) may reasonably request at least two business days prior
to any sale of Registerable Securities;
(vii) comply with all applicable rules and regulations of the
Commission and promptly make generally available to its security holders an
earnings statement covering a period of twelve months commencing, (A) in an
underwritten offering, at the end of any fiscal quarter in which Registerable
Securities are sold to underwriter(s), or (B) in a non-underwritten offering,
with the first month of the Company's first fiscal quarter beginning after the
effective date of such registration statement, which earnings statement in each
case shall satisfy the provisions of Section 11(a) of the Securities Act;
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(viii) enter into such customary agreements (including an
underwriting agreement in customary form) and take all such other actions
reasonably requested by the Rightsholders holding a majority of the Registerable
Securities included in such registration statement or the managing
underwriter(s) in order to expedite and facilitate the disposition of such
Registerable Securities and in such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an underwritten
egistration, (A) make such representations and warranties, if any, to any
underwriter(s) with respect to the registration statement, prospectus and
documents incorporated by reference, if any, in form, substance and scope as
are customarily made by issuers to underwriter(s) in underwritten offerings and
confirm the same if and when requested, (B) obtain opinions of counsel to the
Company and updates thereof addressed to each such underwriter(s), if any, with
respect to the registration statement, prospectus and documents incorporated by
reference, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Rightsholders and underwriter(s), (C) obtain
a "cold comfort" letter and updates thereof from the Company's independent
certified public accountants addressed to the underwriter(s), if any, which
letters shall be in customary form and cover matters of the type customarily
covered in "cold comfort" letters by accountants in connection with underwritten
offerings, and (D) deliver such documents and certificates as may be reasonably
requested by the managing underwriter(s), if any, to evidence compliance with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company; each such action required by this
Paragraph 3(a)(x) shall be done at each closing under such underwriting or
similar agreement or as and to the extent required thereunder; and
(ix) if requested by the holders of a majority of the
Registerable Securities included in such registration statement, use its best
efforts to cause all Registerable Securities which are included in such
registration statement to be listed, subject to notice of issuance, by the date
of the first sale of such Registerable Securities pursuant to such registration
statement, on each securities exchange, if any, on which securities similar to
the Registered Securities are listed.
(b) Obligations of Rightsholders. In connection with any registration
of Registerable Securities of a Rightsholder pursuant to Section 2 hereof:
(i) The Company may require that each Rightsholder whose
Registerable Securities are included in such registration statement furnish to
the Company such information regarding the distribution of such Registerable
Securities and such Rightsholder as the Company may from time to time reasonably
request in writing; and
(ii) Each Rightsholder, upon receipt of any notice from the
Company of the happening of any event of the kind described in clauses (B), (C),
(E) and (F) of Paragraph 3(a)(iii) hereof, shall forthwith discontinue
disposition of Registerable Securities pursuant to the registration statement
covering such Registerable Securities until such Rightsholder's receipt of the
copies of the supplemented or amended prospectus contemplated by clause (A) of
Paragraph
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3(a)(iii) hereof, or until such Rightsholder is advised in writing (the
"Advice") by the Company that the use of the applicable prospectus may be
resumed, and until such Rightsholder has received copies of any additional or
supplemental filings which are incorporated by reference in or to be attached to
or included with such prospectus, and, if so directed by the Company, such
Rightsholder will deliver to the Company (at the expense of the Company) all
copies, other than permanent file copies then in the possession of such
Rightsholder, of the current prospectus covering such Registerable Securities at
the time of receipt of such notice; the Company shall have the right to demand
that such Rightsholder or other holder verify its agreement to the provisions of
this Paragraph 3(b)(ii) in any Holder Notice of the Rightsholder or in a
separate document executed by the Rightsholder.
4. Registration Expenses. All expenses incident to the performance of or
compliance with this Agreement by the Company, including, without imitation, all
registration and filing fees of the Commission, National Association of
Securities Dealers, Inc. and other agencies, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registerable
Securities), rating agency fees, printing expenses, messenger and delivery
expenses, internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the fees and expenses incurred in connection with the listing, if any, of the
Registerable Securities on any securities exchange and fees and disbursements of
counsel for the Company and the Company's independent certified public
accountants (including the expenses of any special audit or "cold comfort"
letters required by or incidental to such performance), Securities Act or other
liability insurance (if the Company elects to obtain such insurance), the fees
and expenses of any special experts retained by the Company in connection with
such registration and the fees and expenses of any other person retained by the
Company (but not including any underwriting discounts or commissions
attributable to the sale of Registerable Securities or other out-of-pocket
expenses of the Rightsholders, or the agents who act on their behalf, unless
reimbursement is specifically approved by the Company) will be borne by the
Company. All such expenses are herein referred to as "Registration Expenses."
5. Indemnification: Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless, to the full extent permitted by law, each Rightsholder, its
officers and directors and each person who controls such Rightsholder (within
the meaning of the Securities Act), if any, and any agent thereof against all
losses, claims, damages, liabilities and expenses incurred by such party
pursuant to any actual or threatened suit, action, proceeding or investigation
(including reasonable attorney's fees and expenses of investigation) arising out
of or based upon any untrue or alleged untrue statement of a material fact
contained in any registration statement, prospectus or preliminary prospectus or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were made) not
misleading, except insofar as the same arise out of or are based upon, any such
untrue statement or omission
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based upon information with respect to such Rightsholder furnished in
writing to the Company by such Rightsholder expressly for use therein.
(b) Indemnification by Rightsholder. In connection with any
registration statement in which a Rightsholder is participating, each such
Rightsholder will be required to furnish to the Company in writing such
information with respect to such Rightsholder as the Company reasonably requests
for use in connection with any such registration statement or prospectus, and
each Rightsholder agrees to the extent it is such a holder of Registerable
Securities included in such registration statement, and each other such holder
of Registerable Securities included in such Registration Statement will be
required to agree, to indemnify, to the full extent permitted by law, the
Company, the directors and officers of the Company and each person who controls
the Company (within the meaning of the Securities Act) and any agent thereof,
against any losses, claims, damages, liabilities and expenses (including
reasonable attorney's fees and expenses of investigation incurred by such party
pursuant to any actual or threatened suit, action, proceeding or investigation
arising out of or based upon any untrue or alleged untrue statement of a
material fact or any omission or alleged omission of a material fact necessary,
to make the statements therein (in the case of a prospectus, in the light of the
circumstances under which they are made) not misleading, to the extent, but only
to the extent, that such untrue statement or omission is based upon information
relating to such Rightsholder or other holder furnished in writing to the
Company expressly for use therein.
(c) Conduct of Indemnification Proceedings. Promptly after receipt by
an indemnified party under this Section 5 of written notice of the commencement
of any action, proceeding, suit or investigation or threat thereof made in
writing for which such indemnified party may claim indemnification or
contribution pursuant to this Agreement, such indemnified party shall notify in
writing the indemnifying party of such commencement or threat; but the omission
so to notify the indemnifying party shall not relieve the indemnifying party
from any liability which the indemnifying party may have to any indemnified
party (i) hereunder, unless the indemnifying party is actually prejudiced
thereby, or (ii) otherwise than under this Section 5. In case any such action,
suit or proceeding shall be brought against any indemnified party, and the
indemnified party shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and the
indemnifying party shall assume the defense thereof, with counsel reasonably
satisfactory to the indemnified party, and the obligation to pay all expenses
relating thereto. The indemnified party shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party has agreed to pay such
fees and expenses, (ii) the indemnifying party shall have failed to assume the
defense of such action, suit or proceeding or to employ counsel reasonably
satisfactory to the indemnified party therein or to pay all expenses relating
thereto or (iii) the named parties to any such action or proceeding (including
any impleaded parties) include both the indemnified party and the indemnifying
party and the indemnified party shall have been advised by counsel that there
may be one or more legal defenses available to the indemnified party which are
different from or additional to those
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available to the indemnifying party and which may result in a conflict
between the indemnifying party and such indemnified party (in which case, if the
indemnified party notifies the indemnifying party in writing that the
indemnified party elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to assume
the defense of such action or proceeding on behalf of the indemnified party; it
being understood, however, that the indemnifying party shall not, in connection
with any one such action, suit or proceeding or separate but substantially
similar or related actions, suits or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys at any time for
the indemnified party, which firm shall be designated in writing by the
indemnified party).
(d) Contribution. If the indemnification provided for in this Section
5 from the indemnifying party is unavailable to an indemnified party hereunder
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits received by the indemnifying party on the one hand and the
indemnified party on the other but also the relative fault of the indemnifying
party and indemnified party, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and the
indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages. liabilities
and expenses referred to above shall be deemed to include, subject to the
limitation set forth in Section 5(e), any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Paragraph 5(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in clauses (i) and (ii) of the
immediately preceding paragraph. 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 misrepresentation.
(e) Limitation. Anything to the contrary contained in this Section
5(e) or in Section 6 notwithstanding, no holder of Registerable Securities shall
be liable for indemnification and contribution payments aggregating an amount in
excess of the maximum
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amount received by such holder in connection with any sale of Registerable
Securities as contemplated herein.
6. Participation in Underwritten Registration. No Rightsholder may
participate in any underwritten registration hereunder unless such Rightsholder
(i) agrees to sell such Rightsholder's securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and to comply with Regulation M under the Exchange Act and
(ii) completes and executes all questionnaires, appropriate and limited powers
of attorney, escrow agreements, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangement;
provided, that all such documents shall be consistent with the provisions of
Section 4 hereof.
7. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
8. Entire Agreement . This Agreement and the documents and instruments and
other agreements among the parties hereto as contemplated by or referred to
herein, (a) constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof and (b) are not intended to confer upon any other person any rights or
remedies hereunder, except as set forth herein.
9. Severability . In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
10. Governing Law . This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
Each of the parties hereto irrevocably consents to the exclusive jurisdiction of
any state or federal court within the State of New York, in connection with any
matter based upon or arising out of this Agreement or the matters contemplated
herein, agrees that process may be served upon them in any manner authorized by
the laws of the State of New York for such persons and waives and covenants not
to assert or plead any objection which they might otherwise have to such
jurisdiction and such process.
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11. Rules of Construction . The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
12. Assignment . No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other parties.
13. Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented
without the written consent of each of the parties hereto. Any of the
Stockholders or the Company may, by written notice to the others, (i) waive any
of the conditions to its obligations hereunder or extend the time for the
performance of any of the obligations or actions of the other, (ii) waive any
inaccuracies in the representations of the other contained in this Agreement or
in any documents delivered pursuant to this Agreement, (iii) waive compliance
with any of the covenants of the other contained in this Agreement and (iv)
waive or modify performance of any of the obligations of the other. No action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action or compliance with any representation,
warranty, condition or agreement contained herein. Waiver of the breach of any
one or more provisions of this Agreement shall not be deemed or construed to be
a waiver of other breaches or subsequent breaches of the same provisions.
14. Notices. All notices, demands, requests, demands and other
communications required or otherwise given under this Agreement shall be in
writing and shall be deemed to have been duly given if: (a) delivered by hand
against written receipt therefor, (b) forwarded by a third party company or
governmental entity providing delivery services in the ordinary course of
business which guarantees delivery the following business day, (c) mailed by
registered or certified mail, return receipt requested, postage prepaid, or (d)
transmitted by facsimile transmission electronically confirmed for receipt, in
full, by the other party no later than 5:00 p.m., local time, on the date of
transmission, addressed as follows (i) If to the Company, to Vizacom Inc.,
Glenpointe Center East 000 Xxxxx X. Xxxx Xxxxxxxxx, Xxxxxxx, Xxx Xxxxxx 00000;
Attention: President; Facsimile: (000) 000-0000: with a copy to: Xxxxxxx &
Xxxxxxxx, LLC; 00 Xxxxxxx Xxxxxxxxx Xxxxxxxxx - Xxxxx 000; Xxxxxxx Xxxxx, Xxx
Xxxx 00000; Attention: Xxxx X. Xxxxxxx, Esq.; Facsimile: (000) 000-0000 and (ii)
if to the Stockholders, to the respective address set forth on the signature
pages hereof, with a copy to Xxxxxx Xxxxxxxx Innocent; Attention: Xxxxx Xxx;
Facsimile: 00 (0) 000-000-0000, or (iii) in the case of any of the parties
hereto, at such other address as such party shall have furnished to each of the
other parties hereto in accordance with this Section 14. Each such notice,
demand, request or other communication shall be deemed given (i) on the date of
such delivery by hand, (ii) on the first business day following the date of such
delivery to the overnight delivery service or facsimile transmission or (iii)
three business days following such mailing.
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15. Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
16. Further Assurances. Each party hereto covenants and agrees with all
other parties hereto to promptly execute, deliver, file and/or record such
agreements, instruments, certificates and other documents and to do and perform
such other and further acts and things as any other party hereto may reasonably
request or as may otherwise be necessary or proper to consummate and perfect the
transactions contemplated hereby.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by themselves or their duly authorized respective officers, all as of the
date first written above.
VIZACOM INC.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxxx
President
STOCKHOLDERS
/s/ AR Xxxxxxx
------------------------------------
A R Xxxxxxx
Address:
/s/ DJL Price
------------------------------------
D J L Price
Address:
/s/ DL Street
------------------------------------
D L Street
Address:
/s/ XX Xxxxx
------------------------------------
X X Xxxxx
Address:
/s/ ICM XxXxxxx
------------------------------------
I C M XxXxxxx
Address:
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/s/ IG Wiper
------------------------------------
I G Wiper
Address:
/s/ XX Xxxxxx
------------------------------------
X X Xxxxxx
Address:
/s/ L Xxxxxx
------------------------------------
L Xxxxxx
Address:
/s/ XX Xxxxxxx
------------------------------------
X X Xxxxxxx
Address:
/s/ XX Xxxxx
------------------------------------
X X Xxxxx
Address:
COURT SERVICES LIMITED
By: /s/ GAC Xxxxx /s/ XX Xxxxx
--------------------------------
Name:
Title:
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