Exhibit III
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made and entered into as of January
12, 2000, by and among Internet Commerce Corporation, a Delaware corporation
(the "Company"), and Cable and Wireless PLC, a District of Columbia corporation
(the "Stockholder").
WHEREAS, the Stockholder is purchasing 10,000 shares of the Company's
Series C Convertible Preferred Stock for $10,000,000, receiving warrants to
purchase 400,000 shares of the Common Stock (the "Warrants") and has the right
to acquire additional shares of the Company's Common Stock based on the
attainment of set annual revenue targets for the sales of the Company's
services, all pursuant to that certain Master Agreement, dated as of November
22, 1999, by and among the Stockholder and the Company (the "Master Agreement").
NOW, THEREFORE, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Company and the Stockholder, intending
legally to be bound, hereby agree as follows.
Section 1. DEFINITIONS. As used in this Agreement, the following terms
shall have the following meanings:
"Affiliate" of any Person means any other Person who either, directly or
indirectly, is in control of, is controlled by, or is under common control with
such Person. For purposes of this definition, the term "control" (including the
terms "controlling" "controlled by" and under "common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Business Day" shall mean any day which is not a Saturday or Sunday or
legal holiday on which banks are authorized or required to be closed in New
York, New York.
"Capital Stock" shall mean all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock.
"Common Stock" shall mean the Class A Common Stock, par value $.01 per
share, of the Company.
"Current Market Value" shall mean the average closing price on The Nasdaq
SmallCap Market of the Company's Common Stock for the ten (10) consecutive
trading days ending one (1) day prior to the date of any calculation; PROVIDED,
HOWEVER, that if there are no trades on any such trading day, the closing price
shall be the average of the closing bid and asked prices for such day; PROVIDED,
FURTHER, HOWEVER, that if the Common Stock is not then listed on The Nasdaq
SmallCap Market, the Current Market Value shall mean the average closing price
either of the principal stock exchange on which the Common Stock is listed, or
of the quotation system, operated by a national securities association, on which
the Common Stock is quoted, for the ten (10) consecutive trading days ending one
(1) day prior to the date of any calculation; however, if there are no trades on
any such trading day, the closing price shall be the average of the closing bid
and asked prices for such day.
"Delay Notice" shall have the meaning set forth in Section 6(b) hereof.
"Demand Registration" shall have the meaning set forth in Section 3(a)
hereof.
"Encumbrance" means any lien, pledge, mortgage, security interest, charge,
restriction, adverse claim or other encumbrance of any kind or nature
whatsoever.
"Hold-Back Election" shall have the meaning set forth in Section 6(a)
hereof.
"Material Development Condition" shall have the meaning set forth in
Section 6(b) hereof.
"Other Holders" shall have the meaning set forth in Section 3(c) hereof.
"Person" shall mean an individual, partnership, corporation, limited
liability company, joint venture, trust or unincorporated organization or a
government or agency or political subdivision thereof or any other similar
entity.
"Prospectus" shall mean the prospectus included in any Registration
Statement, as amended or supplemented by a prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities covered
by such Registration Statement and by all other amendments and supplements to
the prospectus, including post-effective amendments and all material
incorporated by reference in such prospectus.
"Registrable Securities" shall mean the Common Stock which has been or may
be issued, from time to time, and the Common Stock which may be issued upon (i)
conversion of the Series C Convertible Preferred Stock, or (ii) upon exercise of
the Warrants to the Stockholder pursuant to the Master Agreement, including any
addendum thereto or amendment thereof, and any other securities issued or
issuable as a result of or in connection with any stock dividend, stock split or
reverse stock split, combination, recapitalization, reclassification, merger or
consolidation, exchange or distribution or otherwise in respect of such Common
Stock.
"Registration Expenses" shall have the definition set forth in Section 7
hereof.
"Registration Period" shall have the definition set forth in Section 3(b)
hereof.
"Registration Statement" shall mean any registration statement which covers
any of the Registrable Securities pursuant to the provisions of this Agreement,
including the Prospectus included therein, all amendments and supplements to
such Registration Statement, including post-effective amendments, all exhibits
and all material incorporated by reference in such Registration Statement.
"Requesting Securityholder" shall have the meaning set forth in Section 4
hereof.
"Restricted Securities" shall have the meaning set forth in Section 2
hereof.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act, as
amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 903" shall mean Rule 903 promulgated under the Securities Act, as
amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"Rule 904" shall mean Rule 904 promulgated under the Securities Act, as
amended from time to time, or any similar successor rule thereto that may be
promulgated by the SEC.
"SEC" shall mean the United States Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended (or any
similar successor federal statute), and the rules and regulations thereunder, as
the same are in effect from time to time.
"Master Agreement" shall have the definition set forth in the recitals to
this Agreement.
"Underwritten Offering" shall mean a registered offering in which
securities of the Company are sold to an underwriter for reoffering to the
public.
Section 2. SECURITIES SUBJECT TO THIS AGREEMENT. The securities entitled to
the benefits of this Agreement are the Registrable Securities but, with respect
to any particular Registrable Security, only so long as such Registrable
Securities held by the Stockholder or its Affiliates continue to be Restricted
Securities. A Registrable Security that has ceased to be a Registrable Security
cannot thereafter become a Registrable Security. As used herein, a Restricted
Security is a Registrable Security which has not been effectively registered
under the Securities Act and distributed in accordance with an effective
Registration Statement and which has not been distributed by the Stockholder
pursuant to Rule 144, Rule 903 or Rule 904, unless, in the case of a Registrable
Security distributed pursuant to Rule 903 or 904, any applicable restricted
period has not expired or the SEC or its staff have taken the position in a
published release, ruling or no-action letter that securities distributed under
Rule 903 or 904 are ineligible for resale in the United States under Section
4(1) of the Securities Act notwithstanding expiration of the applicable
restricted period.
Section 3. DEMAND REGISTRATION.
(a) DEMAND. The Stockholder may at any time commencing three (3) months
after the date hereof request the Company, in writing, to effect the
registration of all or such portion of the Registrable Securities as the
Stockholder shall specify; PROVIDED, that such request covers registrable
securities having a then Current Market Value or at least two million dollars
($2,000,000) and that only one demand may be made pursuant to this Section 3(a).
The Company shall use its commercially reasonable efforts to file, as
expeditiously as possible, but in any event no later than forty-five (45) days
after receipt of such notice, a Registration Statement on Form S-3 (or any
successor form) covering all Registrable Securities which the Company has been
so requested to register (the "Demand Registration"). The Demand Registration
effected pursuant to this Agreement shall be pursuant to an Underwritten
Offering if so requested by the Stockholders; provided, however, that if the
Stockholders does not so request an Underwritten Offering, the Company may
request one.
(b) EFFECTIVENESS OF REGISTRATION STATEMENT. Subject to the provisions of
Sections 6(b) and (c) hereof, the Company agrees to use its commercially
reasonable efforts to (i) cause the Registration Statement(s) relating to the
Demand Registration described in Section 3(a) hereof to become effective as
promptly as practicable, and (ii) thereafter keep such Registration Statement
effective continuously for the period (the "Registration Period") ending,
subject to the second sentence of Section 5(b) hereof and clauses (2) and (3) of
the last sentence of Section 6(b) hereof, on the earlier of sixty (60) days and
(B) the date on which all Registrable Securities covered by each such
Registration Statement have been sold and the distribution contemplated thereby
has been completed.
(c) INCLUSION OF OTHER SECURITIES. The Company and any other holder of the
Company's securities who has registration rights ("Other Holders") may include
its securities in the Demand Registration effected pursuant to this Section 3;
PROVIDED, HOWEVER, that if the managing underwriter or underwriters of any such
Demand Registration which is an Underwritten Offering advises the Stockholder
that the total amount or kind of securities which the Stockholder and the
Company or such Other Holders is sufficiently large to adversely affect the
success of such proposed Demand Registration, then the amount or kind of
securities to be offered for the account of the Company or any Other Holders
shall be reduced pro rata based upon the aggregate number of securities to be
offered by the Company and the Other Holders to the extent necessary before the
Registrable Securities offered by the Stockholder is so reduced.
(d) No registration of Registrable Securities which shall not have become
effective and remained effective for the Registration Period shall be deemed to
be a Demand Registration for any purpose of this Section 3.
Section 4. PIGGYBACK REGISTRATION. If the Company at any time proposes to
file a registration statement with respect to its Common Stock, whether (i) for
its own account (other than a registration statement on Forms S-4 or S-8 (or any
successor or substantially similar form), and other than in connection with (A)
an employee stock option, stock purchase or compensation plan or of securities
issued or issuable pursuant to any such plan, (B) a dividend reinvestment plan,
or (C) a "shelf" registration pursuant to Rule 415 under the Securities Act) or
(ii) for the account of an Other Holder or Other Holders that have requested
such registration (a "Requesting Securityholder"), then the Company shall in
each case give written notice of such proposed filing to the Stockholders at
least twenty (20) days before the anticipated filing date of any such
registration statement by the Company, and such notice shall offer to the
Stockholder the opportunity to have any or all of the Registrable Securities
held by the Stockholder included in such registration statement. The Stockholder
shall advise the Company in writing within ten (10) days after the date of
receipt of such notice of the amount of Registrable Securities for which
registration is requested, and the Company shall use its commercially reasonable
efforts to include in such Registration Statement all such Registrable
Securities so requested to be included therein. Notwithstanding the foregoing,
if the managing underwriter or underwriters of any such proposed public offering
advises the Company that the total amount or kind of securities which the
Stockholder, the Company and any other Persons intended to be included in such
proposed public offering is sufficiently large to adversely affect the success
of such proposed public offering, then the amount or kind of securities to be
offered for the accounts of the Stockholder and the Other Holders shall be
reduced pro rata, based upon the aggregate number of securities to be offered
for the accounts of the Stockholder and all Other Holders (except the Company
and the Requesting Securityholder) of securities intended to be included in such
offering and the number or kind of securities to be offered for the account of
the Stockholder and each Other Holder, to the extent necessary to reduce the
total amount or kind of securities to be included in such proposed public
offering to the amount or kind recommended by such managing underwriter or
underwriters before the securities offered by the Company or any Requesting
Securityholder are so reduced. Anything to the contrary in this Agreement
notwithstanding, the Company may withdraw or postpone a Registration Statement
referred to in this Section 4 at any time before it becomes effective or
withdraw, postpone or terminate the offering after it becomes effective without
obligation to the Stockholder.
Section 5. REGISTRATION PROCEDURES.
(a) GENERAL. In connection with the Company's registration obligations
pursuant to Section 3 and, to the extent applicable, Section 4 hereof, the
Company will:
(i) prepare and file with the SEC a new Registration Statement or such
amendments and post-effective amendments to an existing Registration
Statement as may be necessary to keep such Registration Statement effective
for the time periods set forth in Section 3(b) hereof, PROVIDED that no
Registration Statement shall be required to remain in effect after all
Registrable Securities covered by such Registration Statement have been
sold and distributed as contemplated by such Registration Statement, and
PROVIDED, FURTHER, that as soon as practicable, but in no event later than
three (3) Business Days before filing such Registration Statement, the
Company shall furnish to the Stockholder and the underwriters, if any,
copies of all such documents proposed to be filed, which documents shall be
subject to the review of the Stockholder and underwriters and their
respective counsel;
(ii) notify the Stockholder and the managing underwriters and their
respective counsel, if any, promptly (1) when a new Registration Statement,
Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to any new Registration Statement or
post-effective amendment, when it has become effective, (2) of any request
by the SEC for amendments or supplements to any Registration Statement or
Prospectus or for additional information, (3) of the issuance by the SEC of
any comments with respect to any filing (and to reply thereto as promptly
as reasonably practicable), (4) of any stop order suspending the
effectiveness of any Registration Statement or the initiation of any
proceedings for that purpose (and use commercially reasonable efforts to
obtain the withdrawal of such order), (5) of any suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, and (6)
if there is a misstatement or omission of a material fact in any
Registration Statement, Prospectus or any document incorporated therein by
reference or if any event occurs which requires the making of any changes
in any Registration Statement, Prospectus or any document incorporated
therein by reference in order to make the statements therein (in the case
of any Prospectus, in the light of the circumstances under which they were
made) not misleading;
(iii) if reasonably requested by the managing underwriter or
underwriters or the Stockholder, promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters and the Stockholder agree should be included therein relating
to the sale of the Registrable Securities, including, without limitation,
information with respect to the aggregate number of shares of Registrable
Securities being sold to such underwriters, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
Underwritten Offering of the Registrable Securities to be sold in such
offering; and promptly make all required filings of such Prospectus
supplement or post-effective amendment;
(iv) furnish to the Stockholder and each managing underwriter, if any,
and their respective counsel, without charge, as many conformed copies as
may reasonably be requested of the then effective Registration Statement
and any post-effective amendments thereto, including financial statements
and schedules, all documents incorporated therein by reference and all
exhibits (including those incorporated by reference);
(v) deliver to the Stockholder and the underwriters, if any, and their
respective counsel, without charge, as many copies of the then effective
Prospectus (including each prospectus subject to completion) and any
amendments or supplements thereto as such Persons may reasonably request;
(vi) use commercially reasonable efforts to register or qualify or
cooperate with the Stockholder, the underwriters, if any, and their
respective counsel in connection with the registration or qualification of
such Registrable Securities for offer and sale under the securities or blue
sky laws of such jurisdictions as the Stockholder or any underwriter
reasonably requests in writing; PROVIDED, HOWEVER, that the Company will
not be required to (1) qualify to do business in any jurisdiction where it
would not otherwise be required to qualify, but for this paragraph (vi),
(2) subject itself to general taxation in any such jurisdiction or (3) file
a general consent to service of process in any such jurisdiction;
(vii) cooperate with the Stockholder and the managing underwriters, if
any, and their respective counsel, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and enable such Registrable Securities
to be in such denominations and registered in such names as the managing
underwriters may request at least two (2) Business Days prior to any sale
of Registrable Securities to the underwriters;
(viii) otherwise use its commercially reasonable efforts to comply in
all material respects with all applicable rules and regulations of the SEC
relating to such registration and the distribution of the securities being
offered and make generally available to its securities holders an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act;
(ix) cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.;
(x) in the event of any Underwritten Offering, enter into and perform
its obligations under an underwriting agreement, in which the Company
addresses its representations and warranties to the underwriters
participating in such offering, with the managing underwriter of such
offering; and
(xi) upon reasonable notice and during normal business hours, provide
reasonable access to Company's personnel and auditors for the purpose of
permitting the Stockholder to conduct due diligence in connection with any
such Registration Statement.
As a condition precedent to the participation in any registration
hereunder, the Company may require the Stockholder to furnish to the Company
such information regarding the Stockholder and the distribution of such
securities as the Company may from time to time reasonably request to comply
with the applicable provisions of the Securities Act.
(b) The Stockholder agrees by the holding of such Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
of the kind described in Section 5(a)(ii) hereof, the Stockholder will forthwith
discontinue disposition of Registrable Securities pursuant to the then current
Prospectus until (1) the Stockholder is advised in writing by the Company that a
new Registration Statement covering the offer of Registrable Securities has
become effective under the Securities Act, or (2) the Stockholder receives
copies of any required supplemented or amended Prospectus, or until the
Stockholder is advised in writing by the Company that the use of the Prospectus
may be resumed; PROVIDED, HOWEVER, that the Company shall use its commercially
reasonable efforts to cure any such misstatement, omission or event that is
applicable to the Registration Statement as soon as reasonably practicable after
delivery of such notice pursuant to clause (6) of Section 5(a)(ii) hereof. If
the Company shall have given any such notice during a period when a Demand
Registration is in effect, the Company shall extend the period during which such
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during which any such disposition of Registrable
Securities is discontinued pursuant to this Section 5(b). If so directed by the
Company, on the happening of such event, the Stockholder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies,
then in the Stockholder's possession of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice.
Section 6. HOLDBACK AGREEMENTS.
(a) HOLD-BACK ELECTION. In the case of the registration of any underwritten
primary offering initiated by the Company (other than any registration by the
Company on Form S-4 or Form S-8 (or any successor or substantially similar
form), and other than in connection with (A) an employee stock option, stock
purchase or compensation plan or of securities issued or issuable pursuant to
any such plan or (B) a dividend reinvestment plan) or any underwritten secondary
offering initiated at the request of a Requesting Securityholder, the
Stockholder agrees that if it is reasonably requested to do so by the managing
underwriter or the underwriters, then the Stockholder shall not effect any
public sale or distribution of securities of the Company, except as part of such
underwritten registration, during the period beginning ten (10) days prior to
the closing date of such underwritten offering and ending ninety (90) days after
such closing date (or such longer period as may be reasonably requested by the
Company or by the managing underwriter or underwriters); PROVIDED, HOWEVER, that
the hold-back period applicable to the Stockholder shall be no longer than the
hold-back period applicable to any director or executive officer of the Company
or any stockholder owning more than five percent (5%) of the Company's Common
Stock.
(b) MATERIAL DEVELOPMENT CONDITION. With respect to any Registration
Statement filed or to be filed pursuant to Section 3, if the Company determines
that, in its good faith judgment, it would (because of the existence of, or in
reasonable anticipation of, any acquisition or corporate reorganization or other
transaction, financing activity, stock repurchase or other development involving
the Company or any subsidiary, or the unavailability for reasons beyond the
Company's control of any required financial statements, or any other event or
condition of similar significance to the Company or any subsidiary) be
materially disadvantageous (a "Material Development Condition") to the Company
or any subsidiary or its stockholders for such a Material Development Condition
to be publicly disclosed, then the Company shall, notwithstanding any other
provisions of this Agreement, be entitled, upon the giving of a written notice
that a Material Development Condition has occurred (a "Delay Notice") from an
officer of the Company to the Stockholder, (i) to cause sales of Registrable
Securities by the Stockholder pursuant to such Registration Statement to cease,
(ii) to cause such Registration Statement to be withdrawn and the effectiveness
of such Registration Statement terminated, or (iii) in the event no such
Registration Statement has yet been filed or declared effective, to delay filing
or effectiveness of any such Registration Statement until, in the good faith
judgment of the Company, such Material Development Condition shall be disclosed
or no longer exists (notice of which the Company shall promptly deliver to the
Stockholder). Notwithstanding the foregoing provisions of this Section 6(b): (1)
in no event may such cessation or delay be for a period of more than ninety (90)
consecutive days from the giving of its Delay Notice to The Stockholder with
respect to such Material Development Condition, as above provided; (2) in the
event a Registration Statement is filed and subsequently withdrawn by reason of
any existing or anticipated Material Development Condition as provided above,
the Company shall cause a new Registration Statement covering the Registrable
Securities to be filed with the Commission as soon as practicable after such
Material Development Condition ceases to exist or, if sooner, as soon as
practicable after the expiration of such ninety (90) day period, and the
Registration Period for such new Registration Statement shall be the greater of
thirty (30) days or the number of days that remained in such Registration Period
with respect to the withdrawn Registration Statement at the time it was
withdrawn; and (3) in the event the Company elects not to withdraw or terminate
the effectiveness of any such Registration Statement but to cause the
Stockholder to refrain from selling Registrable Securities for any period during
the Registration Period, the Registration Period shall be extended by the number
of days during the Registration Period that the Stockholder is required to
refrain from selling Registrable Securities.
(c) LIMITATION ON DEMAND AND PIGGYBACK REGISTRATION RIGHTS. Anything to the
contrary contained in this Agreement notwithstanding, when in the opinion of
counsel for the Company, registration of the Registrable Securities is not
required by the Securities Act and other applicable securities laws in
connection with a proposed sale of such Registrable Securities, the Stockholder
shall have no rights pursuant to Sections 3 and 4 hereof to request a Demand
Registration or a Piggyback Registration in connection with such proposed sale
and the Company shall promptly provide to the transfer agent and the
Stockholder's broker in connection with any sale transaction an opinion to the
effect set forth above, reasonably sufficient in form and substance to permit
the transfer agent to issue stock certificates for such Registrable Securities
without any legend restricting transfer thereof.
Section 7. REGISTRATION EXPENSES. All expenses incident to the Company's
performance of or compliance with this Agreement, including, without limitation,
all registration and filing fees, fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications or registrations (or the
obtaining of exemptions therefrom) of the Registrable Securities), printing
expenses (including expenses of printing Prospectuses), messenger and delivery
expenses, fees and disbursements of its counsel and its independent certified
public accountants, securities acts liability insurance (if the Company elects
to obtain such insurance), fees and expenses of any special experts retained by
the Company in connection with any registration hereunder and fees and expenses
of other Persons retained by the Company (all such expenses being referred to as
"Registration Expenses"), shall be borne by the Company; PROVIDED, that
Registration Expenses shall not include any fees and expenses of counsel for the
Stockholder, out-of-pocket expenses incurred by the Stockholder and underwriting
discounts, commissions or fees attributable to the sale of the Registrable
Securities.
Section 8. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless, to the full extent permitted by law, but without duplication, the
Stockholder, its officers, directors, stockholders, employees, advisors and
agents, and each Person who controls the Stockholder (within the meaning of the
Securities Act), against all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and reasonable legal fees and
expenses) resulting from any untrue statement of a material fact in, or any
omission of a material fact required to be stated in, any Registration Statement
or Prospectus or necessary to make the statements therein (including any such
statements or omissions incorporated by reference therein) (in the case of a
Prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by the Stockholder or any
underwriters expressly for use therein. The Company will also indemnify
underwriters participating in the distribution, their officers, directors,
employees, partners and agents, and each Person who controls such underwriters
(within the meaning of the Securities Act), to the same extent as provided above
with respect to the indemnification of the Stockholder, if so requested.
(b) INDEMNIFICATION BY STOCKHOLDER. In connection with any Registration
Statement in which the Stockholder is participating, the Stockholder will
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such Registration Statement
or Prospectus and agrees to indemnify and hold harmless, severally and not
jointly, to the full extent permitted by law, but without duplication, the
Company, its officers, directors, stockholders, employees, advisors and agents,
and each Person who controls the Company (within the meaning of the Securities
Act), against all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation and reasonable legal fees and expenses)
resulting from any untrue statement of material fact in, or any omission of a
material fact required to be stated in, the Registration Statement or Prospectus
or necessary to make the statements therein (in the case of a Prospectus in
light of the circumstances under which they were made) not misleading to the
extent that such untrue statement or omission is caused by or contained in any
information or affidavit so furnished in writing by the Stockholder to the
Company. The Company and the other persons described above shall be entitled to
receive indemnities from underwriters participating in the distribution, to the
same extent as provided above with respect to information so furnished in
writing by such Persons specifically for inclusion in any Prospectus or
Registration Statement. The Stockholder shall not be required to provide
indemnification or contribution hereunder in excess of an amount equal to the
net proceeds to the Stockholder from the disposition of the Registrable
Securities disposed of by the Stockholder pursuant to such registration.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to
indemnification hereunder will (i) give prompt notice to the indemnifying party
of any claim with respect to which it seeks indemnification and (ii) permit such
indemnifying party to assume the defense of such claim with counsel of such
indemnifying party's choice; PROVIDED, HOWEVER, that any Person entitled to
indemnification hereunder shall have the right to employ separate counsel and to
participate in (but not control) the defense of such claim, but the fees and
expenses of such counsel shall be at the expense of such indemnified Person
unless (A) the indemnifying party shall have failed to assume the defense of
such claim and employ counsel reasonably satisfactory to the indemnified party
in a timely manner or (B) in the reasonable judgment of any such Person, based
upon a written opinion of its counsel, a conflict of interest may exist between
such person and the indemnifying party with respect to such claims (in which
case, if the Person notifies the indemnifying party in writing that such Person
elects to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such claim
on behalf of such person, provided such separate counsel is reasonably
satisfactory to the indemnifying party). The indemnifying party will not be
subject to any liability for any settlement made without its consent. No
indemnified party will be required to consent 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 in respect of such claim or litigation. An indemnifying party who
is not entitled to, or elects not to, assume the defense of the claim will not
be obligated to pay the fees and expenses of more than one counsel (except one
(1) local counsel if required in a specific instance) for all parties
indemnified by such indemnifying party with respect to such claim.
(d) CONTRIBUTION. If for any reason the indemnification provided for in
Section 8(a) or Section 8(b) is unavailable to an indemnified party or is
insufficient to hold it harmless as contemplated by Section 8(a) and Section
8(b), then the indemnifying party shall contribute to the amount paid or payable
by the indemnified party as a result of such loss, claim, damage, liability or
expense in such proportion as is appropriate to reflect not only the relative
benefits received by the indemnifying party and the indemnified party, but also
the relative fault of the indemnifying party and the indemnified party, as well
as any other relevant equitable considerations. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement or the omission or alleged omission relates to information
supplied by the indemnifying party or parties on the one hand, or the
indemnified party or parties on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentations.
(e) Notwithstanding the foregoing, to the extent that the indemnification
and contribution provisions contained in any underwriting agreement entered into
in connection with any Underwritten Offering conflict with the foregoing, the
provisions of such underwriting agreement shall control.
Section 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. The Stockholder may
not participate in any Underwritten Offering hereunder unless the Stockholder
(i) agrees to sell its Registrable Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements. Nothing in this Section 9
shall be construed to create any additional rights regarding the registration of
Registrable Securities in any Person otherwise than as set forth herein. The
Company may designate the managing underwriter of a Demand Registration, subject
to the consent of the Stockholder which shall not be unreasonably withheld or
delayed.
Section 10. AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this Section 10, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless such amendment, modification or waiver is in writing
and duly executed by the party or parties against which it is to be enforced. No
waiver of any provision of this Agreement shall constitute a waiver of any other
provision of this Agreement and no waiver on one occasion shall constitute a
waiver on any future occasion with respect to the same or any other provision of
this Agreement.
Section 11. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or air-courier guaranteeing overnight delivery:
(a) If to the Stockholder, at the most current address given by the
Stockholder to the Company, in accordance with the provisions of this
Section 11, which address (including facsimile number) initially is 0000
Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000, attention: General Counsel,
facsimile No.: (000) 000-0000, with a copy to Cable and Wireless PLC, 000
Xxxxxxxxx Xxxx, Xxxxxx XX0X 0XX England, attention: Company Secretary,
facsimile No.: 011-44-171-315-5073.
(b) If to the Company, initially at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX
00000, attention: Chief Financial Officer, facsimile No.: (000) 000-0000,
and thereafter at such other address as may be designated from time to time
by notice given in accordance with the provisions of this Section 11, with
copies to Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention: Xxxxx X. Xxxxxxxx, Esq., facsimile No.: (212)
715-8000.
(c) All such notices and other communications shall be deemed to have
been delivered and received (i) in the case of personal delivery,
facsimile, telecopier or telegram, on the date of such delivery, (ii) in
the case of air courier, on the Business Day after the date when sent and
(iii) in the case of mailing, on the third (3rd) Business Day following
such mailing.
Section 12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
Section 13. HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
Section 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCIPLES OF THE CONFLICT OF LAWS THEREOF.
Section 15. JURISDICTION; FORUM; WAIVER OF TRIAL BY JURY. Each party hereto
consents and submits to the jurisdiction of any state court sitting in the
County of New York or federal court sitting in the Southern District of the
State of New York in connection with any dispute arising out of or relating to
this Agreement. Each party hereto waives any objection to the laying of venue in
such courts and any claim that any such action has been brought in an
inconvenient forum. To the extent permitted by law, any judgment in respect of a
dispute arising out of or relating to this Agreement may be enforced in any
other jurisdiction within or outside the United States by suit on the judgment,
a certified copy of such judgment being conclusive evidence of the fact and
amount of such judgment. Each party hereto agrees that personal service of
process may be effected by any of the means specified in Section 11 hereof,
addressed to such party. The foregoing shall not limit the rights of any party
to serve process in any other manner permitted by law. EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY
ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Section 16. SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
Section 17. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors of each of the parties hereto.
Except as otherwise expressly provided in Section 8, hereof, this Agreement
shall not confer any rights or remedies upon any Person other than the parties
hereto and their respective heirs, personal representatives, legatees,
successors and permitted assigns.
Section 18. ENTIRE AGREEMENT. This Agreement is intended by the parties as
a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
INTERNET COMMERCE CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx
------------------------------
Name: Xx. Xxxxxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
CABLE AND WIRELESS PLC
By: /s/ Xxxxxxx Xxxx
------------------------------
Name: Xxxxxxx Xxxx
Title: Vice President
Global Business Department
