Exhibit 1
EASYLINK SERVICES CORPORATION
REGISTRATION RIGHTS AGREEMENT
November 27, 2001
EASYLINK SERVICES CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of November 27, 2001 (the
"Agreement") by and among EasyLink Services Corporation, a Delaware corporation
("Easylink"), and each of the investors listed on the signature pages hereof
(the "Investors").
RECITALS
A. EasyLink desires to sell and issue to the Investors and the
Investors desire to purchase from EasyLink shares of Class A common stock of
EasyLink pursuant to a Common Stock Purchase Agreement of even date herewith
(consisting of Shares and Adjustment Shares under such agreement; collectively
herein the "Shares") (the "Common Stock Purchase Agreement").
B. In order to induce the Investors to purchase Shares pursuant to
the Common Stock Purchase Agreement, EasyLink desires to grant to the holders of
Shares (the "Holders") certain registration rights with respect to all of the
Shares, all on the terms and conditions set forth herein.
In consideration of the foregoing and the promises and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
following respective meanings:
"Act" means the U.S. Securities Act of 1933, as amended from
time to time.
"Agreement" means this Agreement, as the same may be amended or
supplemented from time to time in accordance with the terms hereof.
"Common Stock" means the shares of Class A common stock, par
value $.01 per share, that EasyLink is authorized to issue by way of EasyLink's
Amended and Restated Certificate of Incorporation, and amendments thereto.
"Holders" has the meaning set forth in the preface above.
"Indemnified Party" and "Indemnifying Party" have the meanings
set forth in SECTION 2.07(c) of this Agreement.
2
"Mandatory Registration" has the meaning set forth in SECTION
2.01(a) of this Agreement.
"Piggyback Registration" has the meaning set forth in Section
2.02 of this Agreement.
"Registrable Securities" means (i) the Shares, (ii) any Class A
common stock of EasyLink issued as (or issuable upon the conversion or exercise
of any warrant, right or other security that is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of the
securities referenced in clause (i) and this clause (ii), and (iii) any other
shares of capital stock of EasyLink into or for which the securities referenced
in clauses (i) and (ii) may be converted into or exchanged pursuant to a
recapitalization or reclassification of EasyLink's capital stock; provided,
however, that Registrable Securities shall not include any securities that (w)
have been registered and sold pursuant to the Act, (x) have been distributed to
the public through a broker, dealer or market maker pursuant to Rule 144 under
the Act, (y) are eligible for public resale under Rule 144(k) under the
Securities Act or in accordance with the law governing any non-U.S. exchange
where the Common Stock is publicly listed or (z) have been sold in a transaction
exempt from registration under the Act so that all transfer restriction and
restrictive legends with respect thereto are removed upon consummation of such
sale.
"Registration Expenses" means all expenses incident to
EasyLink's performance of or compliance with this Agreement, including, without
limitation, (i) all registration, filing, securities exchange listing, rating
agency and National Association of Securities Dealers fees, (ii) all
registration, filing, qualification and other fees and expenses of complying
with securities or blue sky laws of all jurisdictions in which the securities
are to be registered and any legal fees and expenses incurred in connection with
the blue sky qualification of the Registrable Securities and the determination
of their eligibility for investment under the laws of all such jurisdictions,
(iii) all word processing, duplicating, printing, messenger and delivery
expenses, (iv) the fees and disbursements of counsel for EasyLink and of its
independent public accountants, including, without limitation, the expenses of
any special audits or "cold comfort" letter required by or incident to such
performance and compliance, (v) in connection with any firm commitment,
underwritten offering, the reasonable fees and disbursements of any one counsel
or one accounting firm retained by the Holders of the Registrable Securities
being registered, not to exceed $15,000 in the aggregate for all of such fees
and disbursements, (vi) premiums and other costs of policies of insurance of
EasyLink against liabilities arising out of the public offering of the
Registrable Securities being registered to the extent EasyLink elects to obtain
such insurance, and (vii) any fees and disbursements of underwriters customarily
paid by issuers or sellers of securities (but excluding underwriting discounts
and commissions), if any, relating to the Registrable Securities.
"SEC" means the U.S. Securities and Exchange Commission.
Other capitalized terms that are used herein that are not defined herein shall
have the respective meanings ascribed to such terms in the Common Stock Purchase
Agreement.
3
ARTICLE II
REGISTRATION RIGHTS
EasyLink and the Investors covenant and agree as follows:
SECTION 2.01 Mandatory Registration.
(a) Registration Obligation. Within 45 days from the Closing of the
Common Stock Purchase Agreement, EasyLink agrees to prepare and file a
registration statement on Form S-3 or such other form that EasyLink may then use
for an offering to be made on a continuous basis pursuant to Rule 415 (the
"Registration Statement") covering all of the Registrable Securities and to use
reasonable commercial efforts to cause the Registration Statement to become
effective as soon as practicable thereafter (the "Mandatory Registration");
provided, however, in no event, however, shall EasyLink be required to file more
than one registration statement unless the offering of Registrable Securities
pursuant thereto is suspended, blocked by any stop order, injunction or other
order of the SEC or any governmental agency or court, or withdrawn after the
Mandatory Registration has become effective, in which event such Mandatory
Registration will be deemed not to have been effected pursuant to this Section
2.01.
SECTION 2.02 Piggyback Registration. (a) Right to Piggyback. If
EasyLink proposes to register any of its securities under the Act in connection
with a firm commitment underwritten offering (other than registrations solely
for the registration of shares in connection with an employee benefit plan or a
merger or consolidation and other than pursuant to Section 2.01) at any time
before all of the Registrable Securities are eligible for public resale by the
Holders pursuant to Rule 144(k) under the Act, whether or not for sale for
EasyLink's own account, and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), EasyLink
will at each such time give prompt written notice to all Holders of its
intention to do so and of such Holders' rights under this Section 2.02. Upon the
written request of any such Holder made within 30 days after the receipt of any
such notice (which request shall specify the Registrable Securities intended to
be disposed of by such Holder and the intended method of distribution thereof),
EasyLink will use its reasonable commercial efforts to effect the registration
under the Act of all Registrable Securities which EasyLink has been so requested
to register by the Holders thereof, to the extent required to permit the
disposition (in accordance with such intended methods thereof) of the
Registrable Securities so to be registered, provided that if, at any time after
giving written notice of its intention to register any securities and prior to
the effective date of the registration statement filed in connection with such
registration, EasyLink shall determine for any reason not to register or to
delay registration of such securities, EasyLink may, at its election, give
written notice of such determination to each Holder and, thereupon, (i) in the
case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the registration expenses under Section 2.05 in
connection therewith), without prejudice, however, to the rights of any Holder
entitled to do so to request that such registration be effected as a Demand
Registration under Section 2.01, and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such other
securities. No registration
4
effected under this Section 2.02 shall relieve EasyLink of its obligation to
effect any Demand Registration upon request under Section 2.01.
(b) Priority in Piggyback Registrations. If the managing underwriter of
a Piggyback Registration advises EasyLink in writing that, in its opinion, the
number of shares of Registrable Securities requested or proposed to be included
in such offering exceeds the number that can be sold in such offering without
materially affecting the offering price of any such securities, EasyLink shall
include in such registration (i) first, to the extent that securities of
EasyLink are included in such registration, (A) such securities proposed to be
sold by EasyLink and (B) the securities of EasyLink held by persons who have
preferential registration rights to include such securities in such Piggyback
Registration in accordance with the agreements with respect to such registration
rights between EasyLink and such holders; and (ii) second, to the extent that
such Registrable Securities may be included in such registration without
materially affecting the offering price of the securities referred to in clause
(i), in the opinion of such managing underwriter, the Registrable Securities
requested by the Holders to be included in such Piggyback Registration pursuant
to Section 2.02(a) and any other securities of EasyLink held by persons other
than the Holders having rights to participate in such Piggyback Registration
that are non-preferential to the Holders of the Registrable Securities, pro rata
among all such holders on the basis of the total number of securities of
EasyLink, including Registrable Securities, requested by each such holder to be
included therein.
(c) Selection of Underwriters. EasyLink shall select the investment
banker(s) and manager(s) for the offering.
(d) Underwritten Piggyback Registrations. If EasyLink at any time
proposes to register any of its securities under the Act as to which rights
under this Section 2.02 have been exercised and such securities are to be
distributed by or through one or more underwriters, EasyLink will, if requested
by any Holder as provided in Section 2.02(a) and subject to the provisions of
Section 2.02 (a) and (b), use its reasonable commercial efforts to arrange for
such underwriters to include all the Registrable Securities to be offered and
sold by such Holder among the Securities to be distributed by such underwriters.
Such Holders of the Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between EasyLink and
such underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
EasyLink to and for the benefit of such underwriters shall also be made to and
for the benefit of such Holders and that any or all of the conditions precedent
to the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holders. Any such Holder shall
not be required to make any representations or warranties to or agreements with
EasyLink or the underwriters other than representations, warranties or
agreements regarding such Holder, such Holder's title to Registrable Securities
and such Holder's intended method of distribution and any other representation
required by law.
Section 2.03 Obligations of EasyLink. In furtherance of its
obligations under Section 2.01 OR 2.02 to use its commercially reasonable
efforts to effect the registration of the Registrable Securities, EasyLink
shall, as expeditiously as reasonably possible,
5
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective and keep such
registration statement effective until (i) in the case of a Demand Registration,
the time when all Registrable Securities are eligible for sale by the Holders
pursuant to Rule 144(k) and (ii) in the case of a Piggyback Registration, until
90 days after the effectiveness of such registration statement;
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Act with
respect to the disposition of all securities covered by such registration until
the earlier of the time periods specified in Section 2.03(a) and such time as
all of such securities have been disposed of in accordance with the intended
methods of disposition by the Holders set forth in such registration statement;
(c) Furnish to the Holders such numbers of copies of such
registration statement and of each amendment and supplement thereto (in each
case including all exhibits) and prospectus, including any preliminary
prospectus, in conformity with the requirements of the Act, and such other
documents as the Holders may reasonably request in order to facilitate the
disposition of the Registrable Securities;
(d) Use its commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions (domestic or foreign) as each
Holder thereof shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement remains in
effect, and to take any other action which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in such
jurisdictions of the securities owned by such Holder, except that EasyLink shall
not for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it would not but for the
requirements of this Section 2.03(d) be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(e) Use its reasonable commercial efforts to (i) obtain the
withdrawal of any order suspending the effectiveness of such registration
statement or sales thereunder at the earliest possible time and (ii) cause all
Registrable Securities covered by such registration statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the Holders thereof to consummate the disposition of such
Registrable Securities;
(f) In connection with any firm commitment underwritten
offering, furnish to each Holder a signed counterpart, addressed to such Holder
(and the underwriters, if any) of
(i) an opinion of counsel for EasyLink dated the
date of the closing under the underwriting agreement, reasonably
satisfactory in form and substance to such underwriter, and
(ii) a "comfort" letter, dated the effective date of
such registration statement (and dated the date of the closing under the
underwriting
6
agreement), signed by the independent public accountants who have
certified EasyLink's financial statements included in such registration
statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to the underwriters in underwritten public
offerings of securities;
(g) Notify in writing each Holder, at any time when a prospectus
relating thereto is required to be delivered under the Act, (a) upon discovery
that, or upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and (b) of any request
for any amendment of or supplement to any registration statement or other
document relating to such offering promptly after receipt of such request from
the SEC or any other regulatory body or other body having jurisdiction and, in
either case, at the request of any such Holder promptly prepare and furnish to
such Holder a reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an 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 not misleading in the
light of the circumstances under which they were made;
(h) Otherwise comply with all applicable federal and state
securities laws and rules and regulations of the SEC, and make available to the
Holders, as soon as reasonably practicable, an earning statement covering the
period of at least twelve months, but not more than eighteen months, beginning
with the first full calendar month after the effective date of such registration
statement, which earning statement shall satisfy the provisions of Section 11(a)
of the Act and Rule 158 under the Act, and will furnish to each Holder draft and
final versions of each registration statement and prospectus used in connection
therewith prior to the filing thereof, and any amendment or supplement to such
registration statement or prospectus and shall not file any thereof to which any
Holder shall have reasonably objected on the grounds that such registration
statement, prospectus, amendment or supplement does not comply in all material
respects with the requirements of the Act or the rules or regulations
thereunder;
(i) Provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration
statement; and
(j) Use its reasonable commercial efforts to list all
Registrable Securities covered by such registration statement on each securities
exchange and inter-dealer quotation system on which similar securities issued by
EasyLink are then listed.
EasyLink may require each Holder as to which any registration is
being effected to furnish EasyLink such information regarding such Holder and
the distribution of such securities as EasyLink may from time to time reasonably
request in writing.
7
Section 2.04 Furnish Information. It shall be a condition precedent
to the obligations of EasyLink to take any action pursuant to Article 2 that the
Holders shall furnish to EasyLink such information regarding such Holders, the
Registrable Securities held by such participating Holders and the intended
method of disposition thereof as EasyLink or its appointed agents shall
reasonably request and as shall be required in connection with the action to be
taken by EasyLink.
Section 2.05 Registration Expenses. In the case of any registration
effected pursuant to Section 2.01 OR 2.02, EasyLink shall bear all Registration
Expenses; provided, however, that the Holders shall bear the fees and costs of
its own counsel (other than to the extent provided in the definition of
"Registration Expenses" in connection with a firm commitment, underwritten
offering) and all brokers' discounts and commissions with respect to the
Registrable Securities sold by such Person.
Section 2.06 Use of Prospectus. Each Holder agrees that if EasyLink
notifies the Holder in writing of the happening of any event as a result of
which the prospectus included in such registration statement contains an untrue
statement of a material fact or omits any fact necessary to make the statements
therein not misleading, the Holder will discontinue immediately its disposition
of securities pursuant to the registration statement until the Holder receives
copies of an amended or supplemented prospectus, and if so directed by EasyLink,
will deliver to EasyLink all copies then in Holder's possession of the
prospectus relating to such Registrable Securities current at the time of
receipt of such notice.
Section 2.07 Indemnification. If any Registrable Securities are
included in a registration statement pursuant to Section 2.01 OR 2.02, then,
(a) EasyLink shall indemnify and hold harmless the Holders,
agents for and officers and directors of the Holders, any underwriter of the
Registrable Securities, and each Person, if any, who controls any such Person
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several (or actions in respect thereof), to which they may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of material fact contained
in such registration statement, including any preliminary prospectus or final
prospectus contained in the registration statement, or any amendments or
supplements to the registration statement, 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, or
any violation by EasyLink of any rule or regulation promulgated under the Act or
any state securities law or rule or regulation applicable to EasyLink, and will
reimburse the Holders, the agents for, and officers and directors of the
Holders, any underwriter of the Registrable Securities, or any such controlling
Person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that EasyLink shall not be liable to any Holder in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission based upon and
in conformity with information furnished to EasyLink in writing by such Holder.
8
(b) Each Holder shall indemnify and hold harmless EasyLink, each
of its directors and each of its officers who have signed such registration
statement against any losses, claims, damages or liabilities to which EasyLink
or any such director or officer may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities arise out of or are based
upon any untrue or alleged untrue statement of any material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained in the registration statement or any amendments or
supplements to the registration statement, 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, 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 made in such
registration statement, preliminary prospectus, or amendments or supplement
thereto, in reliance upon and in conformity with information furnished by the
Holder in writing expressly for the purpose of inclusion in such registration
statement, preliminary prospectus or amendments or supplements, and the Holders
will reimburse any legal or other expenses actually and reasonably incurred by
EasyLink or any such director, officer or controlling Person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, that the Holder's liability under this SECTION 2.06(b) shall not
exceed the amount of the gross proceeds of the offering of the Holder's
Registrable Securities included therein.
(c) Each party entitled to indemnification (the "Indemnified
Party") shall give notice to the party required to provide indemnification
("Indemnifying Party") promptly after such Indemnified Party has knowledge of
any claim as to which indemnity may be sought, and shall permit the Indemnifying
Party (at its expense) to assume the defense of any such claim or any litigation
resulting therefrom; provided, however, that counsel for the Indemnifying Party,
who shall conduct the defense of such claim or litigation, shall be reasonably
satisfactory to the Indemnified Party, and the Indemnified Party may participate
in such defense at such party's expense; provided, further, that the failure by
any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2.06, except to the
extent that the failure results in an omission of actual notice to the
Indemnifying Party and such Indemnifying Party is materially damaged as a result
of the failure to give notice. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to the entry of any judgment or enter into any settlement that does not
include as an unconditional term the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability with respect to such claim or
litigation.
Section 2.08 Contribution. (a) If the indemnification provided for in
Section 2.07 is unavailable to the Indemnified Party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each such 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 or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and the Indemnified
Party on the other in connection with the statement or omission which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault shall
be
9
determined by reference to, among other things, whether the untrue statement (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 the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section 2.08 were determined
by pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above. The amount paid or
payable by an Indemnified Party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to in this Article 2 shall
be deemed to include any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim.
(b) Notwithstanding anything to the contrary contained
herein, the obligation of each Holder to contribute pursuant to this SECTION
2.08 is several and not joint and no selling Holder shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities of such selling Holder were offered to the public
exceeds the amount of any damages which such selling Holder has otherwise been
required to pay by reason of such untrue statement (or alleged untrue statement)
or omission (or alleged omission).
(c) No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
Section 2.09 Transfer of Registration Rights. The registration rights
of the Investor under this Article 2 may be assigned and transferred (i) by each
Holder to any Affiliate of the Holder to whom any of the Shares owned by the
Holder are transferred, and (ii) by the Holder to any transferee who acquires a
majority of the Registrable Securities (adjusted to reflect subsequent stock
splits, combinations, stock dividends and recapitalizations) initially issued to
such Holder; provided, however, that EasyLink is given written notice by the
Holder at the time of such assignment and transfer stating the name and address
of the transferee and identifying the securities with respect to which the
rights under this Article 2 are being assigned and transferred. For the purposes
of this Section 2.09, a change in control of an Affiliate of the Holder holding
shares entitling such Affiliate to the registration rights hereunder, such that
such Affiliate is subsequent to such change of control no longer an Affiliate of
the Holder, shall be deemed an attempted transfer of the registration rights
hereunder and such former Affiliate of the Holder shall not be entitled to such
registration rights except to the extent such transfer would be permitted under
clause (ii) above.
ARTICLE III
MISCELLANEOUS
Section 3.01 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties hereto
(including permitted transferees of any shares of
10
Registrable Securities). Nothing in this Agreement is intended to confer upon
any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations or liability under or by reason of
this Agreement, except as expressly provided in this Agreement.
Section 3.02 Notices. All notices and other communications required
or permitted hereunder shall be in writing, shall be effective when given, and
shall in any event be deemed to be given upon receipt or, if earlier, (a) five
(5) days after deposit with the U.S. Postal Service or other applicable postal
service, if delivered by first class mail, postage prepaid, (b) upon delivery,
if delivered by hand or transmitted via facsimile (confirmed by letter sent by
first class mail, postage prepaid with the U.S. Postal Service or other
applicable postal service), or (c) one business day after the business day of
deposit with Federal Express or similar reputable, international overnight
courier, freight prepaid. Such notices, demands and other communications shall
be sent to EasyLink at the address set forth below and to any Holder of
Registrable Securities at such address set forth on Schedule A to the Common
Stock Purchase Agreement or at such address or to the attention of such other
person as the recipient party has specified by prior written notice to the
sending party. The address for EasyLink is:
EasyLink Services Corporation
000 Xxxxxxxx Xxxxxx Xxxxxx, XX 00000
X.X.X.
Attention: Xxxxxx Xxxxxxxx, Chief Executive Officer
Facsimile No.: 000-000-0000
with a copy at the same address to:
Xxxxx X. Xxxxxxxx, Esq.
or at such other address as a party may designate by ten (10) days advance
written notice to the other party pursuant to the provisions above.
Section 3.03 Governing Law; Forum and Consent to Jurisdiction.
(a) Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of New York excluding choice-of-law principles of the law
of such State that would require the application of the laws of a jurisdiction
other than such State.
(b) Submission to Jurisdiction; Service of Process. (i)
EasyLink and the Holders agree that any action or proceeding brought by the
Holders in connection with this Agreement may be brought (and any action or
proceeding brought by EasyLink against the Holders in connection herewith shall
exclusively be brought) in the courts of the State of New York sitting in the
Borough of Manhattan or of the United States of America for the Southern
District of New York and, by execution and delivery of this Agreement, EasyLink
and the Holders hereby irrevocably waive any objection, including, without
limitation, any objection to
11
the laying of venue or based on the grounds of forum non conveniens, which it
may now or hereafter have to the bringing of any such action or proceeding by
EasyLink or the Holders in such non-exclusive jurisdictions.
(ii) EasyLink hereby irrevocably appoint CT Corporation System (the
"Process Agent"), with an office on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx,
XX 00000, Xxxxxx Xxxxxx of America, as their agent to receive on their behalf
service of copies of the summons and complaint and any other process that may be
served in any such action or proceeding. EasyLink irrevocably consents to the
service of process of any of the aforesaid courts in any such action or
proceeding by the mailing of copies thereof by registered mail, postage prepaid,
to it at its address set forth in this Agreement or to the Process Agent at its
address specified above.
Section 3.04 Waivers; Amendments. The waiver by the undersigned of
any of the provisions of this Agreement shall not operate or be construed as a
waiver of any subsequent breach. This Agreement may be amended, and any
provision of this Agreement may be waived, only by a written amendment executed
by (i) in the case of any amendment affecting the rights or obligations of
EasyLink, EasyLink and (ii) in the case of any amendment affecting the rights or
obligations of the Holder, Holders of a majority of the Registrable Securities
then outstanding.
Section 3.05 Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect the construction
and interpretation of this Agreement.
Section 3.06 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
Section 3.07 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 instrument. This Agreement may contain more
than one counterpart of the signature page and may be executed by the affixing
of the signatures of each of the parties hereto to one of these counterpart
signature pages. All of the counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
Section 3.08 Aggregation of Stock. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
Section 3.09 Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party hereto by virtue
of the authorship of any of the provisions of this Agreement.
12
Section 3.10 Entire Agreement. This Agreement contains the entire
agreement of the parties hereto. The parties hereto are not bound by any oral
statements that are made outside of this Agreement.
13
WHEREAS, the parties hereto have executed this Agreement as of
the date first above written.
EASYLINK SERVICES CORPORATION
By: s/ XXXXXX XXXXXXXX
-------------------------------------
Xxxxxx Xxxxxxxx
Chief Executive Officer
INVESTORS:
Name: Federal Partners, L.P.
-----------------------------------
By: s/ XXXXXXX X. XXXX
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title (if applicable): Treasurer, Ninth
Floor Corporation, General Partner
14
