RGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of March 1,
2000 (the "Agreement"), is made by and between VerticalBuyer, Inc., a Delaware
corporation ("VerticalBuyer") and CSP Inc., a Massachusetts corporation
("CSPI").
WHEREAS, in connection with the Securities Purchase and Facilities
Agreement dated March 1, 2000. between CSPI and VerticalBuyer (the "Securities
and Facilities Agreement"), VerticalBuyer has agreed, upon the terms and subject
to the conditions of said Securities and Facilities Agreement, to issue and sell
to CSPI 2,000,000 shares of VerticalBuyer's common stock, par value $0.001 per
share (the "Shares"), together with common stock purchase warrants (the
"Warrants") in three classes to purchase in the aggregate 3,000,000 additional
Shares; and
WHEREAS, in connection with the sale of the Shares to CSPI, it is
contemplated that CSPI will distribute approximately 700,000 Shares ratably to
its stockholders; and
WHEREAS, Vertical Buyer has agreed to issue 75,000 Warrants ratably to all
the holders of options to purchase CSPI common stock; and
WHEREAS, to induce CSPI to execute and deliver the Securities Purchase and
Facilities Agreement, VerticalBuyer has agreed to provide certain registration
rights under the Securities Act of 1933, as amended, and the rules and
regulations thereunder, or any similar successor statute (collectively, the
"1933 Act"), and applicable state securities laws with respect to the Shares as
follows:
(a) the resale of 2,000,000 Shares privately placed to CSPI including
(b) the proposed distribution of approximately 700,000 Shares to CSPI's
stockholders
(c) the issuance and resale of 3,000,000 Shares underlying the Warrants
(d) the issuance of up to 75,000 Warrants to the option holders of CSPI
(e) the issuance of up to 75,000 Shares underlying the Warrants issued to
the option holders of CSPI
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, VerticalBuyer and CSPI hereby
agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined herein
shall have the respective meanings set forth in the Securities and
Facilities Agreement. As used in this Agreement, the following terms shall
have the following meanings:
(a) "Registrable Securities" means the Shares and Warrants issued or to be
issued by VerticalBuyer in connection with the following transactions:
(i) the resale of 2,000,000 Shares privately placed to CSPI including
(ii) the proposed distribution of approximately 700,000 Shares to
CSPI's stockholders;
(iii)the issuance and resale of 3,000,000 Shares underlying the
Warrants;
(iv) the issuance of up to 75,000 Warrants to the option holders of
CSPI;
(v) the issuance of up to 75,000 Shares underlying the Warrants
issued to the option holders of CSPI; and
(vi) any Shares issued as "late registration payments" as defined in
paragraph 2(c).
(b) "Registration Period" means the period between the date of this
Agreement and the earlier of (i) the date on which all of the
Registrable Securities have been sold and no further Registrable
Securities may be issued in the future, or (ii) the date on which all
the Registrable Securities (in the opinion of CSPI's counsel) may be
immediately sold without registration.
(c) "Registration Statement" means a registration statement filed with the
Securities and Exchange Commission (the "SEC") under the 1933 Act.
(d) The terms "register," "registered," and "registration" refer to a
registration effected by preparing and filing the Registration
Statement in compliance with the 1933 Act and pursuant to Rule 415
under the 1933 Act or any successor rule providing for offering
securities on a continuous basis ("Rule 415") and applicable rules and
regulations thereunder, and the declaration or ordering of
effectiveness of such Registration Statement by the SEC.
2. Registration.
(a) Mandatory Registration. VerticalBuyer will file the Registration
Statement on Form SB-2 (or if Form SB-2 is not then available, on such
form of registration statement as is then available to effect a
registration of all the Registrable Securities) with the SEC
registering the Registrable Securities for resale within thirty (30)
business days of the this Agreement. To the extent allowable under the
1933 Act, the Registration Statement shall include the securities
listed in paragraph 101(a) and such additional Shares as may become
issuable upon exercise of the Warrants (i) to prevent dilution
resulting from stock splits, stock dividends or similar transactions,
or (ii) by reason of changes in the exercise price of the Warrants in
accordance with the terms thereof. VerticalBuyer shall use its best
efforts to cause the Registration Statement to be declared effective
by the SEC as soon as practicable after filing and in any event no
later than the ninetieth (90th) business day following the Closing
Date (the "Required Effective Date"). Such best efforts shall include,
but not be limited to, promptly responding to all comments received
from the staff of the SEC. Should VerticalBuyer receive notification
from the SEC that the Registration Statement will receive no action or
no review from the SEC, VerticalBuyer shall cause such Registration
Statement to become effective within seven (7) business days of such
SEC notification. Once declared effective by the SEC, VerticalBuyer
shall cause the Registration Statement to remain effective throughout
the Registration Period.
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(c) Late Registration Payments. If the Registration Statement required
pursuant to paragraph 2(a) above has not been declared effective by
the Required Effective Date, VerticalBuyer will issue to CSPI
additional Shares equal to one percent (1%) of the purchased Shares
for each full month following the Required Effective Date, continuing
through the date the Registration Statement is declared effective by
the SEC. The Late Registration Share issuance will be prorated on a
daily basis for partial months and will be issued to CSPI within five
(5) business days following the effective date of the Registration
Statement.
The obligations of VerticalBuyer under this paragraph 2(d) will expire
upon the earlier of the effectiveness of the Registration Statement or
when all of the Registrable Securities may be sold by under Rule 144
under the 1933 Act without being subject to any volume restrictions.
3. Additional Obligations of VerticalBuyer. In connection with the
registration of the Registrable Securities, VerticalBuyer shall have the
following additional obligations:
(a) VerticalBuyer shall keep the Registration Statement effective pursuant
to Rule 415 under the 1933 Act at all times during the Registration
Period.
(b) The Registration Statement shall not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein, or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading. VerticalBuyer
shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration
Statement as may be necessary to permit sales pursuant to the
Registration Statement at all times during the Registration Period,
and, during such period, shall comply with the provisions of the 1933
Act with respect to the disposition of all Registrable Securities of
VerticalBuyer covered by the Registration Statement until the
termination of the Registration Period, or, if earlier, such time as
all of such Registrable Securities which require an effective
registration statement under the 1933 Act have been disposed of.
(c) VerticalBuyer shall furnish to CSPI and its legal counsel (i) promptly
after the same is prepared and publicly distributed, filed with the
SEC or received by VerticalBuyer, one copy of the Registration
Statement and any amendment thereto; each preliminary prospectus and
final prospectus and each amendment or supplement thereto, each letter
written by or on behalf of VerticalBuyer to the SEC and each item of
correspondence from the SEC or the staff of the SEC, in each case
relating to such Registration Statement; and (ii) such number of
copies of a prospectus, including a preliminary prospectus, and all
amendments and supplements thereto, and such other documents as CSPI
may reasonably request in order to facilitate the disposition of the
Registrable Securities.
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(d) VerticalBuyer shall use its best efforts to (i) register and qualify
the Registrable Securities covered by the Registration Statement under
such other securities or blue sky laws of such jurisdictions as CSPI
reasonably requests, (ii) prepare and file in those jurisdictions such
amendments (including post-effective amendments) and supplements to
such registrations and qualifications as may be necessary to maintain
the effectiveness thereof during the Registration Period, (iii) take
such other actions as may be necessary to maintain such registrations
and qualifications in effect at all times during the Registration
Period, and (iv) take all other actions reasonably necessary or
advisable to qualify the Registrable Securities for sale in such
jurisdictions. Notwithstanding the foregoing provision, VerticalBuyer
shall not be required in connection therewith or as a condition
thereto to (i) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph,
subject itself to general taxation in any such jurisdiction, (iii)
file a general consent to service of process in any such jurisdiction,
(iv) provide any undertakings that cause material expense or burden to
VerticalBuyer, or (v) make any change in its charter or bylaws, which
in each case the Board of Directors of VerticalBuyer determines to be
contrary to the best interests of VerticalBuyer and its stockholders.
(e) VerticalBuyer shall notify CSPI of the happening of any event of which
VerticalBuyer has knowledge as a result of which the prospectus
included in the Registration Statement as then in effect includes an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (a "Suspension Event"). VerticalBuyer shall make such
notification as promptly as practicable after VerticalBuyer becomes
aware of such Suspension Event, shall promptly use its best efforts
(but in any event within five (5) days) to prepare a supplement or
amendment to the Registration Statement to correct such untrue
statement or omission, and shall deliver a number of copies of such
supplement or amendment to CSPI as CSPI may reasonably request.
VerticalBuyer shall promptly notify CSPI as soon as the use of the
Registration Statement may be resumed.
(f) VerticalBuyer shall use its best efforts to prevent the issuance of
any stop order or other suspension of effectiveness of a Registration
Statement and, if such an order is issued, shall use its best efforts
to obtain the withdrawal of such order at the earliest possible time
and to notify CSPI of the issuance of such order and the resolution
thereof.
(g) VerticalBuyer shall cooperate with CSPI to facilitate the timely
preparation and delivery of certificates (not bearing any restrictive
legends) representing Registrable Securities to be offered pursuant to
the Registration Statement and enable such certificates to be in such
denominations or amounts as the case may be, and registered in such
names as CSPI may reasonably request; and, within one (1) business day
after a Registration Statement which includes Registrable Securities
is ordered effective by the SEC, VerticalBuyer shall deliver, and
shall cause legal counsel selected by VerticalBuyer to deliver, to the
transfer agent for the Registrable Securities instructions to the
transfer agent to issue new stock certificates without a legend and an
opinion of such counsel that the Shares and Warrants have been
registered.
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(h) VerticalBuyer shall promptly prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to a
Registration Statement and the prospectus used in connection with the
Registration Statement as may be necessary in order to change the plan
of distribution set forth in such Registration Statement.
(i) VerticalBuyer shall comply with all applicable laws related to the
Registration Statement and offering and sale of securities and all
applicable rules and regulations of governmental authorities in
connection therewith (including, without limitation, the Securities
Act and the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated by the SEC).
(j) VerticalBuyer shall take all other reasonable actions as the CSPI may
reasonably request to expedite and facilitate disposition of the
Registrable Securities pursuant to the Registration Statement.
4. Obligations of CSPI. In connection with the registration of the Registrable
Securities, CSPI shall have the following obligations:
(a) CSPI will cooperate with VerticalBuyer as reasonably requested by
VerticalBuyer in connection with the preparation and filing of the
Registration Statement hereunder.
(b) CSPI agrees that, upon receipt of any notice from VerticalBuyer of the
happening of any event of the kind described in Section 3, CSPI will
immediately discontinue disposition of Registrable Securities pursuant
to the Registration Statement covering such Registrable Securities
until CSPI's receipt of the copies of the supplemented or amended
prospectus.
5. Expenses of Registration. All reasonable expenses incurred in connection
with registrations, filings or qualifications pursuant to Sections 2 and 3,
including, without limitation, all registration, listing and qualifications
fees, printers and accounting fees, the fees and disbursements of counsel
for VerticalBuyer, and the reasonable fees and disbursements of one counsel
selected by CSPI, shall be borne by VerticalBuyer.
6. Indemnification.
(a) To the extent permitted by law, VerticalBuyer will indemnify and hold
harmless CSPI, its directors, its officers, each person, if any, who
controls the CSPI within the meaning of the 1933 Act or the Exchange
Act, (each, an "Indemnified Person"), against any losses, claims,
damages, expenses or liabilities (joint or several) (collectively
together with actions, proceedings or inquiries by any regulatory or
self-regulatory organization, whether commenced or threatened in
respect thereof, "Claims") to which any of them become subject under
the 1933 Act, the Exchange Act or otherwise, insofar as such Claims
arise out of or are based upon any of the following statements,
omissions or violations in the Registration Statement, or any
post-effective amendment thereof, or any prospectus included therein:
(i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any post-effective
amendment thereof or the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
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statements therein not misleading, (ii) any untrue statement or
alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such
Registration Statement, or contained in the final prospectus (as
amended or supplemented, if VerticalBuyer files any amendment thereof
or supplement thereto with the SEC) or the omission or alleged
omission to state therein any material fact necessary to make the
statements made therein, in light of the circumstances under which the
statements therein were made, not misleading, or (iii) any violation
or alleged violation by VerticalBuyer of the 1933 Act, the Exchange
Act or any other law, including without limitation any state
securities law or any rule or regulation thereunder (the matters in
the foregoing clauses (i) through (iii) being, collectively,
"Violations"). VerticalBuyer shall reimburse CSPI and each Indemnified
Person, promptly as such expenses are incurred and are due and
payable, for any legal fees or other reasonable expenses incurred by
them in connection with investigating or defending any such Claim.
Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this paragraph 6(a): (A) shall
not apply to a Claim arising out of or based upon a Violation which
occurs in reliance upon and in conformity with information furnished
in writing to VerticalBuyer by any Indemnified Person expressly for
use in connection with the preparation of the Registration Statement
or any such amendment thereof or supplement thereto, if such
prospectus was timely made available by VerticalBuyer pursuant to
paragraph 3(c) hereof; (B) with respect to any preliminary prospectus
shall not inure to the benefit of any Indemnified Party from whom the
person asserting any such Claim purchased the Registrable Securities
that are the subject thereof (or to the benefit of any person
controlling such person) if the untrue statement or omission of
material fact contained in the preliminary prospectus was corrected on
a timely basis in the prospectus, as then amended or supplemented, if
such prospectus was timely made available by VerticalBuyer pursuant to
paragraph 3(c) hereof; and the Indemnified Party was promptly advised
in writing not to use the incorrect prospectus prior to the use giving
rise to a Violation and such Indemnified Party, notwithstanding such
notice, used it (C) shall not apply to amounts paid in settlement of
any Claim if such settlement is effected without the prior written
consent of VerticalBuyer, which consent shall not be unreasonably
withheld. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the
Indemnified Persons and shall survive the transfer of the Registrable
Securities pursuant to Section 9.
(b) In connection with any Registration Statement in which CSPI is
participating, CSPI will indemnify and hold harmless, to the same
extent and in the same manner set forth in paragraph 6(a),
VerticalBuyer, each of its directors, each of its officers who signs
the Registration Statement, each person, if any, who controls
VerticalBuyer within the meaning of the 1933 Act or the Exchange Act,
and any other stockholder selling securities pursuant to the
Registration Statement or any of its directors or officers or any
person who controls such stockholder within the meaning of the 1933
Act or the Exchange Act (collectively and together with an Indemnified
Person, an "Indemnified Party"), against any Claim to which any of
them may become subject, under the 1933 Act, the Exchange Act or
otherwise, insofar as such Claim arises out of or is based upon any
Violation, in each case to the extent (and only to the extent) that
such Violation occurs in reliance upon and in conformity with written
information furnished to VerticalBuyer by CSPI expressly for use in
connection with such Registration Statement, and subject to paragraph
6(c), CSPI will promptly reimburse any legal or other expenses
(promptly as such expenses are incurred and due and payable)
reasonably incurred by it in connection with investigating or
defending any such Claim; provided, however, that the indemnity
agreement contained in this paragraph 6(b) shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without
the prior written consent of CSPI, which consent shall not be
unreasonably withheld; provided further, however, that CSPI shall be
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liable under this Agreement (including this paragraph 6(b) and
paragraph 7) for only that amount of a Claim as does not exceed the
net proceeds actually received by CSPI as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall
survive the transfer of the Registrable Securities pursuant to Section
9. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this paragraph 6(b) with
respect to any preliminary prospectus shall not inure to the benefit
of any Indemnified Party if the untrue statement or omission of
material fact contained in the preliminary prospectus was corrected on
a timely basis in the prospectus, as then amended or supplemented, and
the Indemnified Party failed to utilize such corrected prospectus.
(c) Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6 of notice of the commencement of any action
(including any governmental action), such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to made
against any indemnifying party under this Section 6, deliver to the
indemnifying party a written notice of the commencement thereof and
this indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any
other indemnifying party similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying
parties and the Indemnified Person or the Indemnified Party, as the
case may be; provided, however, that such indemnifying party shall
diligently pursue such defense; and provided, further, that if the
defendants in any such action include both the Indemnified Person or
Party and the indemnifying party, and the Indemnified Person or Party
shall have reasonably concluded that a conflict may arise between the
positions of the indemnifying party and the Indemnified Person or
Party in conducting the defense of any such action or that there may
be legal defenses available to it and/or other indemnified parties
which are different from or additional to those available to the
indemnifying party, then the Indemnified Person or Party shall have
the right to retain separate counsel, the fees and expenses of which
shall be paid by the indemnifying party, to assume such legal defenses
and to otherwise participate in the defense of such action on behalf
of such Indemnified Person or Party. In case an Indemnified Person or
Party shall have retained separate counsel pursuant to the proviso in
the immediately preceding sentence, the indemnifying party shall not
be liable for the expenses of more than one such separate counsel. The
failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not
relieve such indemnifying party of any liability to the Indemnified
Person or Indemnified Party under this Section 6, except to the extent
that the indemnifying party is prejudiced in its ability to defend
such action. The indemnification required by this Section 6 shall be
made by periodic payments of the amount thereof during the course of
the investigation or defense, as such expense, loss, damage or
liability is incurred and is due and payable.
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7. Contribution. If the indemnification provided for in Section 6 is for any
reason held by a court of competent jurisdiction to be unavailable to or
otherwise insufficient to hold harmless an Indemnified Person or Party in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate
amount paid or payable by such Indemnified Person or Party, as incurred, as
a result of any losses, claims, damages, liabilities or expenses referred
to therein (i) in such proportion as is appropriate to reflect the relative
benefits received by VerticalBuyer, on the one hand, and CSPI, on the other
hand, from the original issuance of the common stock of VerticalBuyer
(including the common stock issued or issuable upon the exercise of
warrants) pursuant to that certain Securities Purchase and Facilities
Agreement of even date herewith, or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) but also the relative fault of VerticalBuyer, on the one hand, and
CSPI, on the other hand, in connection with the statements or omissions or
inaccuracies in the Registration Statement or any preliminary or final
prospectus therein, or in the representations and warranties herein, which
resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of
VerticalBuyer, on the one hand, and CSPI, on the other hand, shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission
to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by
VerticalBuyer, on the one hand, or CSPI, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. 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
limitations set forth in Section 6, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section 6 with
respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 7; provided, however, that no
additional notice shall be required with respect to any action for which
notice has been given under Section 6 for purposes of indemnification.
Notwithstanding the provisions of this Section 7, no person guilty of
fraudulent misrepresentation (within the meaning of paragraph 11(f) of the
Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each officer and employee of CSPI and each person, if any, who
controls CSPI within the meaning of the Securities Act and the Exchange Act
shall have the same rights to contribution as CSPI, and each director of
VerticalBuyer, each officer of VerticalBuyer who signed the Registration
Statement, and each person, if any, who controls VerticalBuyer within the
meaning of the Securities Act and the Exchange Act shall have the same
rights to contribution as VerticalBuyer.
8. Assignment of Registration Rights. The rights of CSPI hereunder, including
the right to have VerticalBuyer register the Shares, Warrants and the
Shares underlying the Warrants pursuant to this Agreement shall be
automatically assigned to transferees of all or any portion of such
securities only if such transfer shall have been made in accordance with
the applicable requirements of the Securities and Facilities Agreement.
9. Amendment of Registration Rights. Provisions of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with
the written consent of VerticalBuyer and CSPI. Any amendment or waiver
effected in accordance with this Section 10 shall be binding upon CSPI and
VerticalBuyer. Notwithstanding the foregoing, no amendment or waiver shall
retroactively affect CSPI without its consent.
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10. Miscellaneous.
(a) Conflicting Instructions. A person or entity is deemed to be a holder
of Registrable Securities whenever such person or entity owns of
record such Registrable Securities. If VerticalBuyer receives
conflicting instructions, notices or elections from two or more
persons or entities with respect to the same Registrable Securities,
VerticalBuyer shall act upon the basis of instructions, notice or
election received from the registered owner of such Registrable
Securities.
(b) Notices. Any notices required or permitted to be given under the terms
of this Agreement shall be sent by certified or registered mail (with
return receipt requested) or delivered personally or by courier
(including a nationally recognized overnight delivery service) or by
facsimile transmission. Any notice so given shall be deemed effective
three days after being deposited in the U.S. Mail, or upon receipt if
delivered personally or by courier or facsimile transmission, in each
case addressed to a party at the following address or such other
address as each such Party furnishes to the other in accordance with
this paragraph 12(b):
If to VerticalBuyer:
Xxx Xxxxx,
President
VerticalBuyer, Inc.
c/o Donahue & Associates
00 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
If to CSPI:
Xxxxxxxxx Xxxxxxxxx
Chief Executive Officer
00 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
with a copy to
Xxxx X. Xxxxxx, Esquire
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
(c) Waiver. Failure of any party to exercise any right or remedy under
this Agreement or otherwise, or delay by a party in exercising such
right or remedy, shall not operate as a waiver thereof.
(d) Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the substantive laws of The Commonwealth
of Massachusetts without regard to its principles of conflicts of
laws, and any disputes arising hereunder will be adjudicated in
federal or state court situated therein. Each party hereto consents to
venue in Massachusetts and to the personal and subject matter
jurisdiction of said courts and, to the extent permitted by applicable
law, agrees to waive any objection as to such jurisdiction or venue,
and agrees not to assert any defense based on lack of jurisdiction or
venue.
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(e) Severability. In the event that any provision of this Agreement is
invalid or unenforceable under any applicable statute or rule of law,
then such provision shall be deemed inoperative to the extent that it
may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any provision hereof which may prove
invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision hereof.
(f) Entire Agreement. This Agreement, the Securities and Facilities
Agreement, and the Warrants (including all schedules and exhibits
thereto) constitute the entire agreement among the Parties with
respect to the subject matter hereof and thereof. There are no
restrictions, promises, warranties or undertakings, other than those
set forth or referred to herein or therein. This Agreement supersedes
all prior agreements and understandings among the parties hereto with
respect to the subject matter hereof.
(g) Successors and Assigns. Subject to the requirements of Section 9
hereof, this Agreement shall inure to the benefit of and be binding
upon the successors and assigns of each of the Parties.
(h) Use of Pronouns. All pronouns and any variations thereof refer to the
masculine, feminine or neuter, singular or plural, as the context may
require.
(i) Headings. The headings and subheadings in the Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same agreement. This Agreement,
once executed by Party, may be delivered to the other party hereto by
facsimile transmission, and facsimile signatures shall be binding on
the parties hereto.
(k) Further Acts. Each Party shall do and perform, or cause to be done and
performed, all such further acts and things, and shall execute and
deliver all such other agreements, certificates, instruments and
documents, as the other. party may reasonably request in order to
carry out the intent and accomplish the purposes of this Agreement and
the consummation of the transactions contemplated hereby.
(l) Consents. All consents and other determinations to be made by
transferees pursuant to this Agreement shall be made by CSPI.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of the date first above written.
VERTICALBUYER, INC.
By: /s/Xxx Xxxxx
-----------------------
Xxx Xxxxx,
President
CSP INC.
By: /s/Xxxxxxxxx Xxxxxxxxx
----------------------
Xxxxxxxxx Xxxxxxxxx,
Chief Executive Officer
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