WAIVER, RESCISSION AND SETTLEMENT AGREEMENT
WAIVER,
RESCISSION AND
SETTLEMENT
AGREEMENT
This
Waiver, Rescission and Settlement Agreement (the “Agreement”),
is
made and entered into as of April 24, 2007 by and between Spatialight, Inc.,
a
New York corporation (“SpatiaLight”),
and
each investor identified on the signature pages hereto (referred to herein
as
the “Investors,”
whether one or more).
W
I T N E S S E T H :
WHEREAS,
SpatiaLight, Bluegrass Growth Fund, L.P. and Bluegrass Growth Fund, Ltd. are
parties to a Securities Purchase Agreement dated September 26, 2006 (the
“September
2006 Securities Purchase Agreement”)
pursuant to which SpatiaLight issued to Bluegrass Growth Fund, L.P. and
Bluegrass Growth Fund, Ltd. an aggregate of 270,270 shares of its Common Stock,
$.01 par value per share (the “Common
Shares”)
and
warrants to purchase 89,189 Common Shares for $2.25 per share until September
26, 2011 (the “September
2006 Warrants”);
and a
Registration Rights Agreement dated September 26, 2006 (the “September
2006 Registration Rights Agreement”)
providing for the registration under the Securities Act of 1933, as amended
(the
“Securities
Act”)
of the
Common Shares issued pursuant to the September 2006 Securities Purchase
Agreement and the Common Shares issuable upon exercise of the September 2006
Warrants (the issuance of shares and warrants and other obligations of the
parties pursuant to the September 2006 Securities Purchase Agreement, the
September 2006 Warrants, and the September 2006 Registration Rights Agreement
is
sometimes referred to herein as the “September
2006 Financing”)
WHEREAS,
SpatiaLight
and Investors are parties to a Securities Purchase Agreement dated November
29,
2006 (the “November
2006 Securities Purchase Agreement”)
pursuant to which SpatiaLight issued to Investors an aggregate of 2,400,000
Common Shares and warrants to purchase 4,800,000 Common Shares for $1.75 per
share until November 29, 2011 (the “November
2006 Warrants”);
a
Lockup Agreement dated November 29, 2006 (the “Lockup
Agreement”)
between SpatiaLight and its officers and directors, and a Registration Rights
Agreement dated November 29, 2006 (the “November
2006 Registration Rights Agreement”)
providing for the registration under the Securities Act of the Common Shares
issued pursuant to the November 2006 Securities Purchase Agreement and the
Common Shares issuable upon exercise of the November 2006 Warrants (the issuance
of shares and warrants and other obligations of the parties pursuant to the
November 2006 Securities Purchase Agreement, the November 2006 Warrants, the
Lockup Agreement and the November 2006 Registration Rights Agreement is
sometimes referred to herein as the “November
2006 Financing”);
and
WHEREAS,
in
connection with the November 2006 Financing, SpatiaLight, Bluegrass Growth
Fund,
L.P. and Bluegrass Growth Fund, Ltd. entered into a Waiver dated December 4,
2006 (the “First
Waiver”)
under
which SpatiaLight agreed to issue warrants to purchase up to 250,000 Common
Shares (the “Waiver
Warrants”)
in
exchange for a waiver and release of certain requirements under the September
2006 Financing; and
WHEREAS,
SpatiaLight
and certain Investors are parties to a Securities Purchase Agreement dated
February 23, 2007 (the “February
2007 Securities Purchase Agreement”)
pursuant to which SpatiaLight issued to Investors an aggregate of 2,190,476
Common Shares pursuant to a registration statement on Form S-3 (File No.
333-137100) (the “Registration
Statement”)
under
the Securities Act (the issuance of shares and other obligations of the parties
pursuant to the February 2007 Securities Purchase Agreement are sometimes
referred to herein as the “February
2007 Financing”);
and
WHEREAS,
in
connection with the February 2007 Financing, SpatiaLight and Investors executed
a Waiver dated February 23, 2007 (the “February
2007 Waiver”)
pursuant to which SpatiaLight issued to Investors an aggregate of 600,000 Common
Shares pursuant to the Registration Statement in exchange for the waiver and
release of certain requirements under the November 2006 Financing;
and
WHEREAS,
SpatiaLight, Bluegrass Growth Fund, L.P. and Bluegrass Growth Fund, Ltd. entered
into a Second Waiver dated March 6, 2007 (the “Second
Waiver”)
under
which the obligation to issue the Waiver Warrants was deleted from the First
Waiver and a First Amendment to Registration Rights Agreement dated March 6,
2007 (the “First
Amendment”)
under
which certain obligations under the September 2006 Registration Rights Agreement
were amended and accrued liquidated damages were forgiven in exchange for the
issuance of 500,000 Common Shares pursuant to the Registration Statement and
the
application of the proceeds from the sale of such Common Shares to outstanding
obligations of SpatiaLight (such Second Waiver and First Amendment are sometimes
referred to herein as the “March
2007 Amendments”);
and
WHEREAS,
Investors
claimed that the issuance of 500,000 Common Shares pursuant to the March 2007
Amendments is a breach of the November 2006 Securities Purchase Agreement and
is
not within the scope of the February 0000 Xxxxxx; and
WHEREAS,
SpatiaLight
believes that the issuance of 500,000 Common Shares pursuant to the March 2007
Amendments are permitted under the November 2006 Securities Purchase Agreement;
NOW,
THEREFORE, in
consideration of the mutual covenants and undertakings contained herein the
parties agree as follows:
1. Rescission
of November 2006 Financing. Subject
to the terms and conditions of this Agreement, except as provided below,
SpatiaLight and Investors agree to rescind and terminate ab
initio the
November 2006 Financing, including without limitation (a) the cancellation
of
any and all obligations under the November 2006 Securities Purchase Agreement,
the November 2006 Registration Rights Agreement and the Lockup Agreement; (b)
subject to the Escrow Agreement set forth below, the delivery into escrow of
the
2,400,000 Common Shares issued in the name of Investors under the November
2006
Securities Purchase Agreement; and (c) the return for cancellation of the
November 2006 Warrants.
2
2. Release
and Settlement of Claims. Each
of
SpatiaLight and Investors agree to irrevocably and forever release, acquit
and
discharge the other; their respective affiliated or related partnerships,
companies and corporations; and the past, present and future partners, managers,
principals, directors, officers, employees, insurers, agents, attorneys and
other representatives, administrators, trustees, successors, heirs,
beneficiaries, servants, independent contractors and assigns of any of them,
of
and from any and all claims, based upon, arising from or relating to the
November 2006 Financing or the execution, delivery or performance of the March
2007 Amendments, including claims for liquidated or exemplary damages. The
foregoing release is intended to be construed broadly and to include claims
that
are presently known or unknown, accrued or accruing in the future, or based
on
law or equity.
3. Consideration.
SpatiaLight
will issue to Investors Common Shares from time to time necessary for Investors
to receive aggregate gross proceeds from the sale of Common Shares acquired
by
Investors in the November 2006 Financing, the February 2007 Financing, the
February 2007 Waiver, and this Agreement equal to Four Million Five Hundred
Eighty-two Thousand Xxx Xxxxxxx Xxx xxx XX/000 Xxxxxx Xxxxxx Dollars
($4,582,106.00) (the “Settlement
Amount”),
subject to the following:
|
a.
|
All
Common Shares issued to Investors shall be delivered to the Escrow
Agent
(as defined in the Escrow Agreement, as hereinafter defined) in escrow
according to the terms of the Escrow Agreement in the form attached
to
this Agreement as Exhibit A (the “Escrow
Agreement”)
and delivered by the Escrow Agent to Investors or their nominees
as set
forth in the Escrow Agreement.
|
|
b.
|
The
parties to this Agreement acknowledge that it is their intent that
such
Common Shares are not intended to be outstanding until they are
distributed by the Escrow Agent to the Investors according to the
terms of
the Escrow Agreement and that no person shall be entitled to any
rights as
a stockholder with respect to such Common Shares until such distribution.
|
|
c.
|
All
Common Shares issued to Investors in accordance with this Agreement
shall
be subject to and issued under the Registration Statement and SpatiaLight
shall provide Investors and the Escrow Agent with a legal opinion
from
counsel acceptable to Investors relating to the transferability of
such
shares.
|
|
d.
|
All
proceeds from the short sale of Common Shares which were or will
be
covered with securities issued in the November 2006 Financing, the
February 2007 Financing, the February 0000 Xxxxxx and this Agreement
shall
be deemed to be gross proceeds from the sale of securities issued
in such
transactions.
|
4. Closing.
Simultaneously
with the execution and delivery of this Agreement;
| a. |
The
parties shall sign and deliver the Escrow
Agreement;
|
| b. |
The
parties shall sign and deliver an Equity Credit Agreement in form
acceptable to the parties;
|
| c. |
Investors
shall deliver to SpatiaLight an accounting of all transactions in
Common
Shares by Investors and all of their affiliates including the monthly
statements and the transaction confirmations of all transactions
since
November 1, 2006 to the date of this Agreement;
|
3
| d. |
Investors
shall deliver to the Escrow Agent to be held according to the Escrow
Agreement a certificate or certificates in 200,000 shares increments
representing all Common Shares then owned or controlled by Investors
that
were acquired pursuant to the November 2006 Financing, the February
2007
Financing or the February 2007
Waiver;
|
| e. |
Investors
shall deliver to SpatiaLight for cancellation all November 2006
Warrants;
|
| f. |
SpatiaLight
shall deliver to the Escrow Agent to be held according to the Escrow
Agreement, a certificate or certificates representing the number
of Common
Shares computed according to the Escrow Agreement (the “SpatiaLight
Escrow Shares”);
and
|
| g. |
SpatiaLight
shall deliver to Investors a legal opinion of Franklin, Xxxxxxxx
&
Xxxxx regarding the registration and transferability of the SpatiaLight
Escrow Shares.
|
5. Representations
of SpatiaLight. SpatiaLight
represents to Investors that:
| a. |
The
SpatiaLight Escrow Shares shall not bear a restricted legend under
applicable Federal and state securities
laws.
|
| b. |
This
Agreement has been duly authorized, executed and delivered by SpatiaLight
and constitutes a legal, valid and binding obligation of SpatiaLight,
enforceable in accordance with its terms (subject, as to enforceability,
to applicable bankruptcy, insolvency, reorganization or other similar
laws
and to general principles of
equity).
|
| c. |
SpatiaLight’s
execution, delivery and performance of this Agreement does not (i)
violate
or conflict with, or constitute a default (or an event that with
notice or
lapse of time or both would become a default) under, result in the
creation of any
lien
upon any of the properties or assets of SpatiaLight,
or give to others any rights of termination, amendment, acceleration
or
cancellation (with or without notice, lapse of time or both) of,
any
agreement, credit facility, debt or other instrument or other
understanding to which SpatiaLight
is
a party or by which any property or asset
of SpatiaLight
is
bound or affected, (ii) conflict with SpatiaLight’s certificate of
incorporation or bylaws or (iii) conflict with or result in a violation
of
any law, rule or regulation applicable to SpatiaLight, or any order
or
judgment of any court or other agency of government applicable to,
or
affecting SpatiaLight.
|
4
| d. |
SpatiaLight
has filed all forms, reports and documents (the “SEC
Documents”)
required to be filed with the Securities and Exchange Commission
(the
“Commission”)
pursuant to the Securities Act or the Securities Exchange Act of
1934, as
amended (the “Exchange
Act”),
as the case may be, and the rules and regulations of the Commission
thereunder during the 12 month period ending on the date of this
Agreement. Except as corrected by subsequent amendment, as of their
respective filing dates, the SEC Documents complied in all material
respects with the requirements of the Securities Act or the Exchange
Act,
as the case may be, and the rules and regulations of the Commission
thereunder applicable to such SEC Documents, and none of the SEC
Documents
contained any untrue statement of a material fact or omitted to state
a
material fact required to be stated therein or necessary in order
to make
statements therein, in light of the circumstances under which they
were
made, not misleading. Except as corrected by subsequent amendment,
as of
their respective filing dates, the financial statements of SpatiaLight
included in the SEC Documents complied as to form in all material
respects
with the applicable accounting requirements and the rules and regulations
of the Commission thereunder and were prepared in accordance with
generally accepted accounting principles and fairly presented, in
all
material respects, the financial position of SpatiaLight as at the
dates
thereof and the results of operations and cash flows of SpatiaLight
for
the periods then ended (subject, in the case of unaudited statements,
to
normal, recurring audit adjustments not material in scope or
amount).
|
| e. |
Neither
the Commission nor any state regulatory authority has issued, or
threatened to issue, any order preventing or suspending the use of
the
Registration Statement or the prospectus contained therein or has
instituted or, to SpatiaLight’s knowledge, threatened to institute any
proceedings with respect to such an order.
|
| f. |
No
consent, approval, authorization or order of, or filing or registration
with, any court, regulatory authority or other governmental agency
or body
or third party is required in connection with the transactions
contemplated herein.
|
| g. |
SpatiaLight
hereby confirms that neither it nor, to its knowledge, any other
person
acting on its behalf has provided Investors or their agents or counsel
with any information that it believes constitutes or might constitute
material, non-public information.
|
|
6.
|
Representations
of Investors. Each
of the Investors represents and warrants to SpatiaLight
that:
|
| a. |
It
is duly organized, validly existing and in good standing under the
laws of
its jurisdiction of organization and it has full right, power and
authority to enter into this Agreement and to perform its obligations
hereunder in accordance with the terms of this Agreement and has
taken all
necessary action to authorize the execution, delivery and performance
of
this Agreement;
|
| b. |
The
Investors and all of their affiliates have been compliant to all
SEC laws
and regulations regarding any transactions involving Common
Shares;
|
| c. |
All
records provided to SpatiaLight relating to transactions in Common
Shares
are complete, true and accurate and contain all transactions in Common
Shares that were issued (or deemed to be issued) pursuant to the
November
2006 Financing, the February 2007 Financing, and the February
Waiver;
|
5
| d. |
This
Agreement has been duly authorized, executed and delivered by it
and
constitutes a legal, valid and binding obligation of it, enforceable
in
accordance with its terms (subject, as to enforceability, to applicable
bankruptcy, insolvency, reorganization or other similar laws and
to
general principles of equity);
|
| e. |
Its
execution, delivery and performance of this Agreement does not violate
or
conflict with its governing documents or any law, rule or regulation
applicable to it, or any order or judgment of any court or other
agency of
government applicable to or affecting
it.
|
7. Indemnification.
| a. |
SpatiaLight
shall indemnify and hold harmless Investors, the officers, directors,
agents, investment advisors and employees of Investors, each person
who
controls any such person (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) and the officers,
directors, agents and employees of each such controlling person,
to the
fullest extent permitted by applicable law, from and against any
and all
losses, claims, damages, liabilities, costs (including, without
limitation, reasonable costs of preparation and reasonable attorneys’
fees) and expenses (collectively, “Losses”),
as incurred, arising out of or relating to (i) any untrue statement
or
alleged untrue statement of a material fact contained in the Registration
Statement, any prospectus contained therein or in any amendment or
supplement thereto or arising out of or relating to any omission
or
alleged omission of a material fact required to be stated therein
or
necessary to make the statements therein (in the case of any prospectus
or
supplement thereto, in light of the circumstances under which they
were
made) not misleading, (ii) the inaccuracy in any representation or
breach
of any warranty of SpatiaLight contained herein, or (iii) any third
party
claim arising from or based in whole or in part upon the November
2006
Financing.
|
| b. |
Investors
shall indemnify and hold harmless SpatiaLight, its current and former
directors, officers, agents and employees, each person who controls
SpatiaLight (within the meaning of Section 15 of the Securities Act
and
Section 20 of the Exchange Act), and the directors, officers, agents
or
employees of such controlling person, to the fullest extent permitted
by
applicable law, from and against all Losses, as incurred, to the
extent
arising out of or based solely upon: (i) any untrue statement or
alleged
untrue statement of a material fact contained in the Registration
Statement, any prospectus or in any amendment or supplement thereto
or
arising out of or relating to any omission or alleged omission of
a
material fact required to be stated therein or necessary to make
the
statements therein (in the case of any prospectus or supplement thereto,
in light of the circumstances under which they were made) not misleading
to the extent, but only to the extent, that such untrue statement
or
omission or alleged untrue statement or omission is contained in
any
information so furnished in writing by Investors to SpatiaLight
specifically for inclusion in the Registration Statement or such
prospectus, amendment or supplement, or (ii) the inaccuracy in any
representation or breach of any warranty of Investors contained
herein.
|
6
| c. |
If
any proceeding shall be brought or asserted against any person entitled
to
indemnity hereunder (an “Indemnified
Party”),
such Indemnified Party shall promptly notify the party from whom
indemnity
is due (for purposes of this Section 7, such notified party shall
be
referred to as the “Indemnifying
Party”)
in writing, and the Indemnifying Party shall have the right to assume
the
defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all reasonable
fees and expenses incurred in connection with the defense thereof;
provided, that the failure of any Indemnified Party to give such
notice
shall not relieve the Indemnifying Party of its obligations or liabilities
pursuant to this Agreement, except (and only) to the extent that
it shall
be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal or further review) that such
failure shall have proximately and materially adversely prejudiced
the
Indemnifying Party.
|
An
Indemnified Party shall have the right to employ separate counsel in any such
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party unless: (i)
the Indemnifying Party has agreed in writing to pay such fees and expenses;
(ii)
the Indemnifying Party shall have failed promptly to assume the defense of
such
proceeding and to employ counsel reasonably satisfactory to such Indemnified
Party in any such proceeding; or (iii) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have been advised by
counsel that a conflict of interest is likely to exist if the same counsel
were
to represent such Indemnified Party and the Indemnifying Party (in which case,
if such Indemnified Party notifies the Indemnifying Party in writing that it
elects to employ separate counsel at the expense of the Indemnifying Party,
the
Indemnifying Party shall not have the right to assume the defense thereof and
the reasonable fees and expenses of one separate counsel, (but no more than
one
separate counsel on behalf of all of the Indemnified Parties) shall be at the
expense of the Indemnifying Party). The Indemnifying Party shall not be liable
for any settlement of any such proceeding affected without its written consent,
which consent shall not be unreasonably withheld or delayed. No Indemnifying
Party shall, without the prior written consent of the Indemnified Party, effect
any settlement of any pending proceeding in respect of which any Indemnified
Party is a party, unless such settlement includes an unconditional release
of
such Indemnified Party from all liability on claims that are the subject matter
of such proceeding.
| d. |
All
reasonable fees and expenses of the Indemnified Party (including
reasonable fees and expenses to the extent incurred in connection
with
investigating or preparing to defend such proceeding in a manner
not
inconsistent with this Section) shall be paid to the Indemnified
Party, as
incurred (regardless of whether it is ultimately determined that
an
Indemnified Party is not entitled to indemnification hereunder; provided,
that the Indemnifying Party may require such Indemnified Party to
undertake to reimburse all such fees and expenses to the extent it
is
finally judicially determined that such Indemnified Party is not
entitled
to indemnification hereunder).
|
7
| e. |
If
a claim for indemnification hereunder is unavailable to an Indemnified
Party (by reason of public policy or otherwise), then each 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, in such proportion as is appropriate to reflect the relative
fault
of the Indemnifying Party and Indemnified Party in connection with
the
actions, statements or omissions or alleged actions, statements or
omissions that resulted in such Losses as well as any other relevant
equitable considerations. The relative fault of such Indemnifying
Party
and Indemnified Party shall be determined by reference to, among
other
things, whether any action in question, including any untrue statement
or
alleged untrue statement of a material fact or omission or alleged
omission of a material fact, has been taken or made by, or relates
to
information supplied by, such Indemnifying Party or Indemnified Party,
and
the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such action, statement or omission
or
alleged action, statement or omission. The amount paid or payable
by a
party as a result of any Losses shall be deemed to include, subject
to the
limitations set forth in Section 7(c), any reasonable attorneys’ or other
reasonable fees or expenses incurred by such party in connection
with any
proceeding to the extent such party would have been indemnified for
such
fees or expenses if the indemnification provided for in this Section
was
available to such party in accordance with its terms.
|
| f. |
The
parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take
into
account the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of Section 7(e),
the
Investors and the other Indemnified Parties shall not be required
to
contribute, in the aggregate, any amount in excess of the amount
by which
the proceeds actually received by such person from the sale of the
Escrow
Shares subject to such dispute exceeds the amount of any damages
that such
person has otherwise been required to pay by reason of such untrue
statement or omission or alleged untrue statement or omission, except
in
the case of fraud by such person
|
| g. |
The
indemnification obligations set forth in (i) Section 7(a)(i) and
Section
7(b)(i) shall survive the transactions contemplated herein and shall
remain operative and in full force until the expiration of the applicable
statute of limitations and (ii) Section 7(a)(ii) and Section 7(b)(ii)
shall survive forever. Any claim pending on the expiration date of
any
applicable survival period for which notice has been given to the
Indemnifying Party in accordance with this Agreement may continue
to be
asserted and indemnified against until finally
resolved.
|
8
|
8.
|
Miscellaneous.
|
|
a.
|
Expenses.
Each of the Investors and SpatiaLight agrees to pay its own expenses
and
disbursements incident to the performance of its obligations hereunder;
provided
however
that SpatiaLight shall pay the fees and expenses of Investors’ counsel and
other expenses of Investors as set forth in the Equity Credit Agreement
of
even date with this Agreement.
|
|
b.
|
Rights
Cumulative; Waivers. The rights of each of the parties under this
Agreement are cumulative. The rights of each of the parties hereunder
shall not be capable of being waived or varied other than by an express
waiver or variation in writing. Any failure to exercise or any delay
in
exercising any of such rights shall not operate as a waiver or variation
of that or any other such right. Any defective or partial exercise
of any
of such rights shall not preclude any other or further exercise of
that or
any other such right. No act or course of conduct or negotiation
on the
part of any party shall in any way preclude such party from exercising
any
such right or constitute a suspension or any variation of any such
right.
|
|
c.
|
Benefit;
Successors Bound. This Agreement and the terms, covenants, conditions,
provisions, obligations, undertakings, rights, and benefits hereof,
shall
be binding upon, and shall inure to the benefit of, the undersigned
parties and their heirs, executors, administrators, representatives,
successors, and permitted assigns.
|
|
d.
|
Amendment.
Neither this Agreement nor any term hereof may be amended, waived,
discharged or terminated other than by a written instrument signed
by the
party against whom enforcement of any such amendment, waiver, discharge
or
termination is sought.
|
|
e.
|
Remedies.
In addition to being entitled to exercise all rights provided herein
or
granted by law, including recovery of damages, each of the parties
will be
entitled to specific performance under this Agreement and the Escrow
Agreement. The parties agree that monetary damages may not be adequate
compensation for any loss incurred by reason of any breach of obligations
contained herein or in the Escrow Agreement and hereby agree to waive
and
not to assert in any action for specific performance of any such
obligation the defense that a remedy at law would be adequate. In
the
event of a default by SpatiaLight pursuant to this Agreement or the
Escrow
Agreement, or the termination of the Escrow Agreement at any time
while
the Remaining Settlement Liability is greater than zero, the Investor
shall be entitled to liquidated damages in an amount equal to the
Remaining Settlement Liability.
|
|
f.
|
Authorized
Shares. SpatiaLight agrees to include on the agenda of the next regular
meeting of its stockholders a proposal to increase the authorized
Common
Shares and to use reasonable efforts, including a recommendation
by its
board of directors, to cause such proposal to be adopted by the
stockholders and shall promptly after the approval of any such proposal
file with such documents as are necessary to amend its Certificate
of
Incorporation to increase its authorized Common Shares. In the event
that
the SpatiaLight Additional Contributed Shares are limited at any
time by
the authorized Common Shares, SpatiaLight shall promptly call a special
meeting of its stockholders for the purpose of increasing its authorized
capital and will use reasonable efforts to cause the adoption of
such
increase. Notwithstanding the foregoing, in the event that SpatiaLight
has
not caused the number of authorized shares to be increased within
150 days
of the requirement therefor, then such failure to authorize such
additional shares shall be an event of default hereunder.
|
9
|
g.
|
Severability.
Each part of this Agreement is intended to be severable. In the event
that
any provision of this Agreement is found by any court or other authority
of competent jurisdiction to be illegal or unenforceable, such provision
shall be severed or modified to the extent necessary to render it
enforceable and as so severed or modified, this Agreement shall continue
in full force and effect.
|
|
h.
|
Notices.
All notices, requests, demands or other communications which are
required
or may be given pursuant to the terms of this Agreement shall be
in
writing and shall be deemed to have been duly given: (i) on the date
of
delivery if delivered by hand, (ii) upon the third day after such
notice
is (a) deposited in the United States mail, if mailed by registered
or
certified mail, postage prepaid, return receipt requested, or (b)
sent by
a nationally recognized overnight express courier, or (iii) by facsimile
upon written confirmation (other than the automatic confirmation
that is
received from the recipient’s facsimile machine) of receipt by the
recipient of such notice: (i) if to Investors at the address of Investors
on the signature page hereof; and (ii) if to SpatiaLight, at Xxxx
Xxxxxxxx
Xxxxxxx, Xxxxxx XX 00000, Facsimile No.
(000) 000-0000
|
|
i.
|
Governing
Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to
the
principles regarding conflicts of laws. The parties irrevocably consent
to
the exclusive jurisdiction of any State or Federal Court located
within
the County of New York, State of New York, in connection with any
action
or proceeding arising out of or relating to this Agreement. If
either party shall commence an action or proceeding to enforce any
provisions of this Agreement, the prevailing party in such action
or
proceeding shall be reimbursed by the other party for its reasonable
attorneys' fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or
proceeding.
|
|
j.
|
Further
Assurances. In addition to the instruments and documents to be made,
executed and delivered pursuant to this Agreement, the parties hereto
agree to make, execute and deliver or cause to be made, executed
and
delivered, to the requesting party such other instruments and to
take such
other actions as the requesting party may reasonably require to carry
out
the terms of this Agreement and the transactions contemplated
hereby.
|
10
|
k.
|
Section
Headings. The Section headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
|
|
l.
|
Construction.
Unless the context otherwise requires, when used herein, the singular
shall be deemed to include the plural, the plural shall be deemed
to
include each of the singular, and pronouns of one or no gender shall
be
deemed to include the equivalent pronoun of the other or no
gender.
|
|
m.
|
Execution
in 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 a party, may be delivered to the other party hereto in portable
document format (“PDF”)
by telephone line facsimile transmission of a copy of this Agreement
bearing the signature of the party so delivering this Agreement.
A
facsimile or PDF transmission of this signed Agreement shall be legal
and
binding on all parties hereto.
|
11
IN
WITNESS WHEREOF,
the
parties have caused this Agreement to be duly executed by their respective
officers thereunto duly authorized as of the day and year first above
written.
|
SPATIALIGHT:
By:
/s/ Xxxxx X. Xxxxxx
Name:
Xxxxx X. Xxxxxx
Title:
CEO
INVESTORS:
SOUTHRIDGE
PARTNERS LP
By:
/s/ Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Address:
Southridge Partners LP
00
Xxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000
SOUTHSHORE
CAPITAL FUND LTD.
By:
/s/ Xxxxx Xxxx
Name:
Xxxxx Xxxx
Title:
Address:
Southshore Capital Fund Ltd.
Xxxxxxx
Xxxxx, 0xx
Xxxxx
Xxxxxxxxxx
Xxxxx
P.O.
Box 972
Road
Town, Tortola
BVI
|
12
|
XXXXXX
DIVERSIFIED STRATEGY
MASTER
FUND, LLC, ENA
By:
/s/ Xxxxxxx X' Xxxx
Name:
Xxxxxxx X' Xxxx
Title:
Address:
Enable Capital Management
Xxx
Xxxxx Xxxxxxxx, Xxxxx 000
Xxx
Xxxxxxxxx, XX 00000
ENABLE
OPPORTUNITY PARTNERS LP
By:
/s/ Xxxxxxx X' Xxxx
Name:
Xxxxxxx X' Xxxx
Title:
Address:
Enable Capital Management
Xxx
Xxxxx Xxxxxxxx, Xxxxx 000
Xxx
Xxxxxxxxx, XX 00000
ENABLE
GROWTH PARTNERS LP
By:
/s/ Xxxxxxx X' Xxxx
Name:
Xxxxxxx X' Xxxx
Title:
Address:
Enable Capital Management
Xxx
Xxxxx Xxxxxxxx, Xxxxx 000
Xxx
Xxxxxxxxx, XX 00000
IROQUOIS
MASTER FUND LTD.
By:
/s/ Xxxxxx Xxxxxxxxx
Name:
Xxxxxx Xxxxxxxxx
Title:
Address:
Iroquois Master Fund Ltd.
000
Xxxxxxxxx Xxxxxx,
00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
13
