EXHIBIT 10.23
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "AGREEMENT") is entered into as of March
6, 2000, by and between TeleHublink Corporation (the "COMPANY"), a Delaware
corporation, and each of the Persons who have executed this Agreement and are
named in ANNEX A to this Agreement (each sometimes referred to herein
individually as an "INVESTOR" and sometimes collectively as the "INVESTORS").
The execution and delivery of this Agreement by the parties hereto are a
condition to Investors purchasing Common Stock (as hereinafter defined) from the
Company under the Common Stock and Warrant Purchase Agreement (as hereinafter
defined).
Therefore, the parties hereto hereby agree as follows:
1. DEFINITIONS. Unless the context otherwise requires, the terms defined in
this Section 1 shall have the meanings herein specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
herein defined.
"AGREEMENT" means this Registration Agreement.
"BOARD" means the Board of Directors of the Company.
"COMMON STOCK" means the common stock, $0.01 par value per share, of the
Company.
"COMMON STOCK AND WARRANT PURCHASE AGREEMENT" means the Common Stock and
Warrant Purchase Agreement dated as of March 6, 2000, among the Company and each
of the Investors.
"COMMISSION" means the Securities and Exchange Commission.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"HOLDER" of any security means the record owner of such security.
"HOLDERS OF A MAJORITY OF THE REGISTRABLE SECURITIES" means the Person or
Persons who are the Holders of a majority of the shares of Registrable
Securities then outstanding.
"INVESTOR" has the meaning assigned to it in the introductory paragraph of
this Agreement.
"PERSON" includes any natural person, corporation, limited liability
company, trust, association, company, partnership, joint venture and other
entity and any government, governmental agency, instrumentality or political
subdivision.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRABLE SECURITIES" means (1) all Common Stock held by Investors and
listed on ANNEX A, (2) the Common Stock issued or issuable upon exercise of the
Warrants issued and sold pursuant to the Common Stock and Warrant Purchase
Agreement, whether such Warrants are owned by the Investors at the time of
exercise, and (3) any securities issued or issuable with respect to the Common
Stock referred to in clauses (1) and (2) above by way of a stock dividend or
stock split or in connection with a combination of shares, reclassification,
recapitalization, merger or consolidation or reorganization; provided, however,
that such shares of Common Stock shall only be treated as Registrable Securities
until (i) they have been sold to or through a broker or dealer or underwriter in
a public distribution or a public securities transaction, (ii) they have been
sold in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act under Section 4(1) thereof so that all
transfer restrictions and restrictive legends with respect to such Common Stock
are removed upon the consummation of such sale, or (iii) the date that the
Holders of Registrable Securities receive an opinion of counsel to the Company,
which opinion is satisfactory to counsel to each such Holder, they are eligible
to be sold pursuant to Rule 144(k) under the Securities Act without limitation
as to volume or manner of sale.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
2. REGISTRATION REQUIREMENT.
The Company shall prepare and file a registration statement on Form
S-3 (the "Registration Statement") registering the resale of all of the
Registrable Securities from time-to-time pursuant to Rule 415 under the
Securities Act in a timely manner such that such Registration Statement will
become effective in accordance with the terms hereof. Following filing of such
Registration Statement, the Company shall use its best efforts to cause such
Registration Statement to become effective no later than the first anniversary
of the date hereof. Notwithstanding the above, if the aggregate stock ownership
of the persons listed on ANNEX B hereto declines by 25% or more on a fully
diluted basis (an "Acceleration Event") prior to the first anniversary of the
date hereof, the Company shall use its best efforts to promptly cause the
Registration Statement to be declared effective, making it available for use by
the Investors. If the Registration Statement has not been filed as of an
Acceleration Event, the Company shall promptly and in any event within thirty
(30) days cause such filing to be made and shall thereafter use its best efforts
to cause the Registration Statement to be declared effective promptly. Once such
Registration Statement has been declared effective, the Company shall take all
actions necessary, including the filing of amendments thereto or the filings of
Form 8-K to report material events for incorporation by reference therein, to
maintain effectiveness of such Registration Statement so long as any securities
constitute Registrable Securities provided that the Company shall not be
required to maintain effectiveness at any time
after the first anniversary of the date hereof that fewer than 375,000
Registrable Securities remain outstanding. Such Registration Statement shall
list all Investors as selling security holders therein and shall be amended as
necessary from time-to-time to reflect transfers of Registrable Securities by
Investors to third parties in such a manner that transfer restrictions and
restrictive legends with respect to such Registrable Securities are maintained
and the addition of such Holders as selling stockholders thereunder.
3. REGISTRATION PROCEDURES. To effect the registration under the Securities
Act of the Registrable Securities pursuant to Section 2 hereof, the Company, at
its expense and as expeditiously as possible, agrees to:
(a) In accordance with the Securities Act and all applicable rules and
regulations, prepare and file with the Commission a registration statement on
Form S-3 with respect to such securities and use its best efforts to cause such
Registration Statement to become and remain effective as required by Section 2
hereof, and prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus contained therein as may be
necessary to keep such registration statement effective and such Registration
Statement and prospectus accurate and complete so long as required by Section 2
above;
(b) If an offering pursuant to the Registration Statement is to be
underwritten in whole or in part, enter into a written underwriting agreement in
form and substance reasonably satisfactory to the managing underwriter of the
public offering and the Holders of a Majority of the Registrable Securities
participating in such offering;
(c) Furnish to the Holders of Registrable Securities and to any
underwriters of such securities such number of copies of the registration
statement and each amendment and supplement thereto, preliminary prospectus,
final prospectus and such other documents as they may reasonably request in
order to facilitate the public offering of such securities;
(d) Use its best efforts to register or qualify the securities covered
by the Registration Statement under such state securities or blue sky laws of
such jurisdictions as such participating Holders and underwriters may reasonably
request, except that the Company shall not for any purpose be required to
execute a general consent to service of process or to qualify to do business as
a foreign corporation in any jurisdiction where it is not so qualified;
(e) Notify the Holders of Registrable Securities promptly after it
shall receive notice thereof, of the date and time when the Registration
Statement and each post-effective amendment thereto has become effective or a
supplement to any prospectus forming a part of the Registration Statement has
been filed;
(f) Notify such Holders promptly of any request by the Commission for
the amending or supplementing of the Registration Statement or prospectus or for
additional information;
(g) Prepare and file with the Commission, promptly upon the request of
any such Holders, any amendments or supplements to the Registration Statement or
prospectus which, in the opinion of counsel for such Holders reasonably
satisfactory to the Company, is required under the Securities Act or the rules
and regulations thereunder in connection with the distribution of the
Registrable Securities by such Holders;
(h) As promptly as practicable after becoming aware of such event, and
in no event later than two (2) business days after becoming aware of such event,
notify each Holder of Registrable Securities of the happening of any event the
occurrence of which has caused the prospectus included in the Registration
Statement as then in effect to include an 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, in light of the circumstances under which they were
made, not misleading (including, without limitation, the passage of time) and
use its best efforts promptly to prepare a supplement or amendment to the
Registration Statement or other appropriate filing with the Commission to
correct such untrue statement or omission, and deliver a number of copies of
such supplement or amendment to each Holder as such Holder may reasonably
request;
(i) In case any of such Holders or any underwriter for any such
Holders is required to deliver a prospectus at a time when the prospectus then
in circulation is not in compliance with the Securities Act or the rules and
regulations of the Commission, prepare promptly upon request such amendments or
supplements to the Registration Statement and such prospectus as may be
necessary in order for such prospectus to comply with the requirements of the
Securities Act and such rules and regulations;
(j) Advise such Holders, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of the Registration Statement or the initiation or
threatening of any proceeding for that purpose and promptly use its best efforts
to prevent the issuance of any stop order or to obtain its withdrawal if such
stop order should be issued;
(k) Provide each Holder of Registrable Securities with a copy of any
portion of a registration statement or prospectus or any amendment or supplement
to the Registration Statement or prospectus to be filed containing disclosures
relating to Holders of Registrable Securities at least five (5) business days
prior to the filing thereof; not file any registration statement or prospectus
or any amendment or supplement to the Registration Statement or prospectus to
which the Holders of a Majority of the Registrable Securities have reasonably
objected on the grounds that such registration statement or prospectus or
amendment or supplement thereto does not comply in all
material respects with the requirements of the Securities Act or the rules and
regulations thereunder; provided, however, that the failure of such Holders or
their counsel to review or object to any portion of a registration statement or
prospectus or any amendment or supplement to such registration statement or
prospectus shall not affect the rights of such Holders or their respective
officers, directors, partners, legal counsel, accountants or controlling Persons
or any underwriter or any controlling Person of such underwriter under Section 5
hereof; and
(l) Make available for inspection upon request by any Holder of
Registrable Securities covered by such registration statement, and by any
attorney, accountant or other agent retained by any such Holder, all financial
and other records, pertinent corporate documents and properties of the Company,
and cause all of the Company's officers, directors and employees to supply all
information reasonably requested by any such Holder, attorney, accountant or
agent in connection with such registration statement.
The Holders, upon receipt of notice from the Company that an event of the
kind described in Sections 3(f), (h) or (j) has occurred which requires a
post-effective amendment to the Registration Statement or a supplement to the
prospectus included therein, shall promptly discontinue the sale of Registrable
Securities until the Holder receives a copy of a supplemented or amended
prospectus from the Company, which the Company shall provide immediately after
such notice.
4. EXPENSES.
(a) With respect to the registration effected pursuant to Section 2,
the Company shall bear all fees, costs and expenses of and incidental to such
registration and the public offering in connection therewith; provided, however,
that Holders participating in any such registration agree to be responsible for
the fees of any counsel retained by the Holders in connection with such
registration and any transfer taxes and their pro rata share of the underwriting
discount and commissions.
(b) The fees, costs and expenses of registration to be borne as
provided in paragraph (a) above, shall include, without limitation, all
registration, filing and NASD fees, printing expenses, fees and disbursements of
counsel and accountants for the Company, fees and disbursements of counsel for
any underwriter or underwriters of such securities (if the Company and/or
selling security holders are otherwise required to bear such fees and
disbursements), all legal fees and disbursements and other expenses of complying
with state securities or blue sky laws of any jurisdictions in which the
securities to be offered are to be registered or qualified, and the premiums and
other costs of policies of insurance against liability arising out of such
public offering.
5. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify and hold harmless each
Holder of Registrable Securities and each of such Holder's officers, directors,
partners, legal counsel and accountants, and each Person who controls such
Holder within the meaning of the Securities Act and any underwriter (as defined
in the Securities Act) for such Holder, and any Person who controls such
underwriter within the meaning of the Securities Act, from and against, and
agrees to reimburse such Holder, its officers, directors, partners, legal
counsel, accountants and controlling Persons and each such underwriter and
controlling Person of such underwriter with respect to, any and all claims,
actions (actual or threatened), demands, losses, damages, liabilities, costs and
expenses to which such Holder, its officers, directors, partners, legal counsel,
accountants or controlling Persons, or any such underwriter or controlling
Person of such underwriter may become subject under the Securities Act or
otherwise, insofar as such claims, actions, demands, losses, damages,
liabilities, costs or expenses arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any prospectus contained therein, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
(i) the Company will not be liable in any such case to the extent that any such
claim, action, demand, loss, damage, liability, cost or expense is caused by an
untrue statement or alleged untrue statement or omission or alleged omission so
made in strict conformity with written information furnished by such Holder,
such underwriter or such controlling Person specifically for use in the
preparation thereof; (ii) the Company will not be liable to any indemnified
party under this indemnity agreement with respect to any Registration Statement
or prospectus to the extent that any such loss, claim, damage or liability of
such indemnified party results from the use of the prospectus during a period
when the use of the prospectus has been suspended in accordance with Section 9
hereof, provided that the Holders received prior notice of such suspension,
which notice shall be deemed to have been received by such Holders within 48
hours of the giving thereof; and (iii) the Company shall not be liable to any
indemnified party with respect to any preliminary prospectus to the extent that
any such loss, claim, damage or liability of such indemnified party results from
the fact that such indemnified party sold Registrable Securities to a person as
to whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the prospectus or of the prospectus as then amended or
supplemented in any case where such delivery is required by the Securities Act,
if the loss, claim, damage or liability of such indemnified party results from
an untrue statement or omission of a material fact contained in the preliminary
prospectus which was corrected in the prospectus or in the prospectus as then
amended or supplemented.
(b) By its participation in the Registration Statement each Holder of
shares of Registrable Securities shall be deemed to have agreed severally and
not jointly, to indemnify and hold harmless the Company, its officers,
directors, legal counsel and accountants and each Person who controls the
Company within the meaning of the Securities Act, from and against, and agrees
to reimburse the Company, its officers,
directors, legal counsel, accountants and controlling Persons with respect to,
any and all claims, actions, demands, losses, damages, liabilities, costs and
expenses to which the Company, its officers, directors, legal counsel,
accountants or such controlling Persons may become subject under the Securities
Act or otherwise, insofar as such claims, actions, demands, losses, damages,
liabilities, costs or expenses are caused by any untrue or alleged untrue
statement of any material fact contained in the Registration Statement, any
prospectus contained therein or any amendment or supplement thereto, or are
caused by the omission or the alleged omission to state therein 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, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was so made in reliance upon
and in strict conformity with written information furnished by such Holder
specifically for use in the preparation thereof. Notwithstanding the foregoing,
no Holder of Registrable Securities shall be obligated hereunder to pay more
than the net proceeds realized by it upon its sale of Registrable Securities
included in the Registration Statement.
(c) Promptly after receipt by a party indemnified pursuant to the
provisions of subsection (a) or (b) of this Section 5 of notice of the
commencement of any action involving the subject matter of the foregoing
indemnity provisions, such indemnified party will, if a claim therefor is to be
made against the indemnifying party pursuant to the provisions of subsection (a)
or (b), notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 5 and shall not relieve the indemnifying party from liability under this
Section 5 unless such indemnifying party is materially prejudiced by such
omission. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying parties similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded 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, the indemnified party or parties shall have
the right to select separate counsel (in which case the indemnifying party shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties). Upon the permitted assumption by the indemnifying
party of the defense of such action, and approval by the indemnified party of
counsel, the indemnifying party shall not be liable to such indemnified party
under subsection (a) or (b) for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof (other
than reasonable costs of investigation) unless (i) the indemnified party shall
have employed separate counsel in connection with the assertion of legal
defenses in accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the
indemnified party within a reasonable time, (iii) the indemnifying party and its
counsel do not actively and vigorously pursue the defense of such action, or
(iv) the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party. No indemnifying
party shall be liable to an indemnified party for any settlement of any action
or claim without the consent of the indemnifying party and no indemnifying party
may unreasonably withhold its consent to any such settlement. No indemnifying
party will consent, without the prior written consent of the Indemnified Party,
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability with respect to such claim or
litigation.
(d) If the indemnification provided for in subsection (a) or (b) of
this Section 5 is held by a court of competent jurisdiction to be unavailable to
a party to be indemnified with respect to any claims, actions, demands, losses,
damages, liabilities, costs or expenses referred to therein, then each
indemnifying party under any such subsection, in lieu of indemnifying such
indemnified party thereunder, hereby agrees to contribute to the amount paid or
payable by such indemnified party as a result of such claims, actions, demands,
losses, damages, liabilities, costs or expenses in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other in connection with the statements
or omissions which resulted in such claims, actions, demands, losses, damages,
liabilities, costs or expenses, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged 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 the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. Notwithstanding the foregoing, the amount
any Holder of Registrable Securities shall be obligated to contribute pursuant
to this subsection (d) shall be limited to an amount equal to the per share
public offering price (less any underwriting discount and commissions)
multiplied by the number of shares of Registrable Securities sold by such Holder
pursuant to the Registration Statement which gives rise to such obligation to
contribute (less the aggregate amount of any damages which such Holder has
otherwise been required to pay in respect of such claim, action, demand, loss,
damage, liability, cost or expense or any substantially similar claim, action,
demand, loss, damage, liability, cost or expense arising from the sale of such
Registrable Securities).
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution hereunder
from any person who was not guilty of such fraudulent misrepresentation.
(e) In addition to its other obligation under this Section 5, the
Company further agrees to reimburse each Holder of Registrable Securities (and
each of
such Holder's controlling Persons, officers, directors, parties, legal counsel,
accountants and underwriters (and controlling Persons of such underwriters)) on
a monthly basis for all reasonable legal fees and other expenses incurred in
connection with investigating or defending any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any alleged statement or admission, described in subsection (a) of
this Section 5, notwithstanding the possibility that such payments might later
be held to be improper. To the extent that any payment is ultimately held to be
improper, each Person receiving such payment shall promptly refund such payment.
6. REPORTING REQUIREMENTS UNDER THE EXCHANGE ACT. So long as any Investor
holds Common Stock or warrants to purchase Common Stock, the Company shall keep
effective its registration under Section 12 of the Exchange Act and shall file
timely such information, documents and reports as the Commission may require or
prescribe under Section 13 of the Exchange Act. The Company agrees to file
timely (whether or not it shall then be required to do so) such information,
documents and reports as the Commission may require or prescribe under Section
13 or 15(d) (whichever is applicable) of the Exchange Act. The Company forthwith
upon request agrees to furnish to any Holder of Registrable Securities (a) a
written statement by the Company that it has complied with the reporting
requirements of either Section 13 or 15(d) of the Exchange Act, (b) a copy of
the most recent annual or quarterly report of the Company and (c) such other
reports and documents filed by the Company with the Commission as such Holder
may reasonably request in availing itself of an exemption for the sale of
Registrable Securities without registration under the Securities Act. The
Company acknowledges and agrees that the purposes of the requirements contained
in this Section 6 are (a) to enable any such Holder to comply with the current
public information requirement contained in paragraph (c) of Rule 144 under the
Securities Act should such Holder ever wish to dispose of any of the securities
of the Company acquired by it without registration under the Securities Act in
reliance upon Rule 144 (or any other similar exemptive provision) and (b) to
qualify the Company for the use of registration statements on Form S-3. In
addition, the Company agrees to take such other measures and file such other
information, documents and reports, as shall be required of it hereafter by the
Commission as a condition to the availability of Rule 144 under the Securities
Act (or any similar exemptive provision hereafter in effect) and the use of Form
S-3.
7. SHAREHOLDER INFORMATION. The Company may request each Holder of
Registrable Securities to furnish the Company with such information with respect
to such Holder and the distribution of such Registrable Securities 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, and each Holder of
Registrable Securities agrees to furnish the Company with such information.
8. FORMS. All references in this Agreement to particular forms of
registration statements are intended to include, and shall be deemed to include,
references to all
successor forms which are intended to replace, or to apply to similar
transactions as, the forms herein referenced.
9. NOTICE TO COMPANY. Each time that a Holder of Registrable Securities
intends to sell shares of Registrable Securities pursuant to the Registration
Statement, such Holder shall give written notice to the Company at least three
(3) business days prior to effecting such sale. The Company shall have the right
within such three (3) business days period to notify such Holder that the
Registration Statement is not then available for use as a result of the
existence of material nonpublic information causing such Registration Statement
to be materially incorrect or it containing omissions of material fact necessary
to make the statements contained therein, in light of the circumstances under
which they are made, not misleading. Upon notifying a Holder that the
Registration Statement is not then available, the Company shall promptly comply
with the provisions of Section 2 hereof to cause such Registration Statement to
be available; provided that the Company may suspend the use of the Registration
Statement for a period of not greater than ninety (90) days if, in the good
faith opinion of the Board, a material valid business reason exists, including
the proposed acquisition or divestiture of assets by the Company, the necessity
of making public filings with the Commission, the existence of pending material
corporate developments and [?], in each such case where, in the good faith
opinion of the Board, such suspension is necessary to avoid a material adverse
effect to the financial condition, operations or business of the Company.
10. MISCELLANEOUS.
10.1 WAIVERS AND AMENDMENTS. With the written consent of the Holders
of 66 2/3% of the Registrable Securities, the obligations of the Company and the
rights of the Investors under this Agreement may be waived (either generally or
in a particular instance, either retroactively or prospectively and either for a
specified period of time or indefinitely), and with the same consent the
Company, when authorized by resolution of its Board, may enter into a
supplementary agreement for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of any
supplemental agreement or modifying in any manner the rights and obligations
hereunder of the Investors and the Company; provided, however, that no such
waiver or supplemental agreement shall reduce the aforesaid proportion of
Registrable Securities, the Holders of which are required to consent to any
waiver or supplemental agreement, without the consent of the Holders of all of
the Registrable Securities. Upon the effectuation of each such waiver, consent
or agreement of amendment or modification, the Company agrees to give promptly
written notice thereof to the Holders of the Registrable Securities who have not
previously consented thereto in writing. Neither this Agreement nor any
provision hereof may be changed, waived, discharged or terminated orally or by
course of dealing, but only by a statement in writing signed by the party
against which enforcement of the change, waiver, discharge or termination is
sought, except to the extent provided in this Section 10.1. Specifically, but
without limiting the generality of the foregoing, the failure of any Investor at
any time or
times to require performance of any provision hereof by the Company shall in no
manner affect the right of any Investor at a later time to enforce the same. No
waiver by any party of the breach of any term or provision contained in this
Agreement, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such breach, or a waiver of the breach of
any other term or covenant contained in this Agreement.
10.2 EFFECT OF WAIVER OR AMENDMENT. Each Investor acknowledges that by
operation of Section 10.1 hereof the Holders of 66 2/3% of the Registrable
Securities will, subject to the limitations contained in such Section 10.1, have
the right and power to diminish or eliminate certain rights of such Investor
under this Agreement.
10.3 RIGHTS OF INVESTORS INTER SE. Each Investor shall have the
absolute right to exercise or refrain from exercising any right or rights which
such Investor may have by reason of this Agreement or any Registrable Security,
including, without limitation, the right to consent to the waiver of any
obligation of the Company under this Agreement and to enter into an agreement
with the Company for the purpose of modifying this Agreement or any agreement
effecting any such modification, and such Investor shall not incur any liability
to any other Investors or Investors with respect to exercising or refraining
from exercising any such right or rights.
10.4 NOTICES. All notices, requests, consents and other communications
required or permitted hereunder shall be in writing and shall be delivered, or
mailed first class postage prepaid, registered or certified mail,
(a) If to any Investor, addressed to such Investor at its address
shown on ANNEX A hereto, or at such other address as such Investor may specify
by written notice to the Company, or
(b) If to the Company, at 24 New England Executive Park, Xxxxxxxxxx,
XX 00000, or at such other address as the Company may specify by written notice
to the Investors, and each such notice, request, consent and other communication
shall for all purposes of the Agreement be treated as being effective or having
been given when delivered, if delivered personally, by e-mail or by facsimile
with confirmation of receipt or by overnight courier, or, if sent by mail, at
the earlier of its actual receipt or three (3) days after the same has been
deposited in a regularly maintained receptacle for the deposit of United States
mail, addressed and postage prepaid as aforesaid.
10.5 SEVERABILITY. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of
each other agreement entered into pursuant to this Agreement, shall be given
effect separately from the provision or provisions determined to be illegal or
unenforceable and shall not be affected thereby.
10.6 PARTIES IN INTEREST. All the terms and provisions of 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 and, in particular, shall inure to the benefit of and be
enforceable by the Holder or Holders at the time of any of the Registrable
Securities. Subject to the immediately preceding sentence, this Agreement shall
not run to the benefit of or be enforceable by any Person other than a party to
this Agreement and its successors and assigns.
10.7 HEADINGS. The headings of the sections, subsections and
paragraphs of this Agreement have been inserted for convenience of reference
only and do not constitute a part of this Agreement.
10.8 CHOICE OF LAW. It is the intention of the parties that the
internal substantive laws, and not the laws of conflicts, of the State of New
York should govern the enforceability and validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties.
10.9 EXPENSES. The Company agrees to pay and hold the Investors and
Holders of the Registrable Securities harmless from liability for the payment
of, (i) the fees and expenses incurred in connection with any requested waiver
of the right of any Investor or the consent of any Investor to contemplated acts
of the Company not otherwise permissible by the terms of this Agreement, (ii)
the fees and expenses incurred with respect to any amendment to this Agreement
proposed by the Company (whether or not the same becomes effective), (iii) the
reasonable fees and expenses incurred in respect of the enforcement of the
rights granted under this Agreement, and (iv) all costs of the Company's
performance of and compliance with this Agreement.
10.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument. Delivery of an executed counterpart of
this Agreement by facsimile transmission shall be as effective as delivery of a
manually executed counterpart hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed personally or by a duly authorized representative thereof as of the
day and year first above written.
TELEHUBLINK CORPORATION
By: ___________________________
Title: _________________________
[INVESTORS]
By: _____________________________
Title: __________________________
By: _____________________________
Title: __________________________
By: _____________________________
Title: __________________________
ANNEX A
INITIAL
NAME OF ADDRESS OF NUMBER OF SHARES
INVESTOR INVESTOR OF REGISTRABLE SECURITIES
-------- --------- -------------------------
ANNEX B
Xxxxx Xxxxx
Xxxxx Xxxxxxxxxx
Xxxx Xxxxxx
Xxxx Xxxxxxxxxx
Xxxxx Xxxxxx
