REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of February 28,
2002 is entered into by and between Intercallnet, Inc., a Florida corporation
(the "Company"), and the investor named on the signature page hereto (the
"Investor"), as amended from time to time to include any Investor Transferee (as
defined in Section 2.1 hereof).
RECITALS
WHEREAS, concurrent with the execution and delivery of this Agreement (or at the
Closing, if later), the Company is issuing and selling to the Investor 1,500,000
shares (the "Preferred Shares") of its Series A Convertible Preferred Stock,
$0.0001 par value per share (the "Series A Convertible Preferred Stock"), and
certain warrants (the "Warrants") to purchase shares of its Common Stock, par
value $0.0001 par value per share (the "Common Stock") pursuant to the terms and
conditions of that certain Series A Convertible Preferred Stock and Warrant
Purchase Agreement dated of even date herewith between the Company and such
Investor (the "Purchase Agreement");
WHEREAS, the Company and the Investor desire to enter into an agreement granting
the Investor certain registration rights, information rights and other rights in
connection with its ownership of shares of the Preferred Shares (including the
Conversion Shares into which such Preferred Shares are convertible) and Warrants
(including the shares of the Company's common stock into which such Warrants are
exercisable).
NOW, THEREFORE, in consideration of the promises and mutual agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS; REGISTRATION RIGHTS
1.1 Certain Definitions. As used in this Agreement, the following terms shall
have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the common stock, $0.0001 par value, of the
Company and any class of common stock of the Company into which such
common stock is converted or reclassified or for which such common
stock is exchanged.
"Conversion Shares" shall mean shares of Common Stock issued or
issuable upon conversion of the Preferred Shares.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal rule or statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"Register," "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance
with the Securities Act, as defined below, and the declaration or
ordering of the effectiveness of such registration statement.
"Registrable Securities" shall mean (i) the Conversion Shares, (ii) the
Warrant Shares (and shares of the Company's Common Stock underlying
Penalty Warrants, as such term is defined herein), and (iii) shares
issued or issuable upon an adjustment for stock splits, stock dividends
and the like (including, without limitation, any such adjustments with
respect to the securities referred to in (i) and (ii) above).
Notwithstanding the foregoing, Registrable Securities shall not include
Conversion Shares and/or Warrant Shares (and/or shares of the Company's
Common Stock underlying Penalty Warrants) which have been (i)
registered under the Securities Act pursuant to an effective
registration statement filed thereunder and disposed of in accordance
with the registration statement covering them, (ii) publicly sold
pursuant to Rule 144 under the Securities Act, or (iii) eligible for
sale under Rule 144(k) under the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any similar federal rule or statute, and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the
time.
"Shareholders' Agreement" shall mean the Shareholders' Agreement, dated
the date hereof, among the Company and certain shareholders of the
Company.
"Warrant Shares" shall mean shares of Common Stock issued or issuable
upon exercise of the Warrants.
1.2 Restrictive Legend. Each certificate representing Preferred Shares or
Conversion Shares shall, except as otherwise provided in Section 1.3, be stamped
or otherwise imprinted with a legend substantially in the following form:
"TRANSFER RESTRICTED"
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
REGISTRATION RIGHTS AGREEMENT BY AND BETWEEN THE COMPANY AND A CERTAIN
SHAREHOLDER. A COPY OF THE REGISTRATION RIGHTS AGREEMENT MAY BE
OBTAINED FROM THE COMPANY WITHOUT CHARGE UPON THE WRITTEN REQUEST OF
THE HOLDER HEREOF.
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT") AND MAY NOT BE OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR
OTHERWISE TRANSFERRED UNLESS (1) THEY ARE REGISTERED UNDER THE ACT OR
(2) THE HOLDER HAS DELIVERED TO THE ISSUER AN OPINION OF COUNSEL,
SATISFACTORY TO THE ISSUER AND ITS COUNSEL, TO THE EFFECT THAT THERE IS
AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR THAT REGISTRATION IS OTHERWISE NOT
REQUIRED.
1.3 Required Registration.
(a) Not later than November 30, 2002 (60 days following September 30,
2002, the required date for filing the Company's Form 10-KSB for the
fiscal year ended June 30, 2002), the Company shall file a Form SB-2
registration statement with the Commission registering all of the
Registrable Securities; provided, however, that the Company may, by
notice to the holders of the Preferred Shares, Warrants and/or the
Registrable Securities, delay such registration if the Company's Board
of Directors determines that such registration at such time would have
a material adverse effect upon the Company; provided, further, however,
that the Company's ability to delay such registration shall be limited
to a duration of no longer than ninety (90) days and the Company shall
not delay more than once.
The Company shall not be obligated pursuant to this Section 1.3 to
effectuate more than one (1) registration.
(b) The Company's registration obligation hereunder shall be deemed
satisfied only when a registration statement covering all shares of
Registrable Securities shall have become effective with the Commission.
(c) The Company shall be entitled to include in any registration
statement referred to in this Section 1.3 for sale shares of Common
Stock to be sold by the Company for its own account and/or for the
account of other security holders or both, except as and to the extent
that, in the reasonable opinion of the managing underwriter (if such
method of disposition shall be an underwritten public offering), such
inclusion would materially adversely affect the marketing of the
Registrable Securities to be sold. Except for registration statements
on Form ▇-▇, ▇-▇ or any successor thereto, the Company will not file
with the Commission any other registration statement with respect to
its Common Stock, whether for its own account or that of other security
holders, from the date of the effectiveness of the registration
statement pursuant to this Section1.3 until the completion of the
lesser of the period of distribution of the shares of Registrable
Securities registered thereby or one hundred eighty (180) days from the
effective date of the registration statement.
1.4 Company Registration.
(a) Notice of Registration. If at any time or from time to time the
Company shall determine to register any of its equity securities, either for its
own account or the account of the Investor or other holders, other than (i) a
registration relating solely to employee benefit plans and otherwise pursuant to
Form S-8 and the instructions to Form S-8, (ii) a registration relating solely
to a Rule 145 transaction, or (iii) a registration in which the only equity
security being registered is Common Stock issuable upon conversion of
convertible debt securities which are also being registered, the Company will:
(i) promptly give to the Investor written notice thereof; and
(ii) include in such registration (and any related
qualifications including compliance with Blue Sky laws), and in any underwriting
involved therein, all the Registrable Securities specified in a written request
or requests, made within ten (10) business days after the date of such written
notice from the Company, by the Investor.
(b) Underwriting. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the Company shall
so advise the Investor as a part of the written notice given pursuant to Section
1.4(a)(i). In such event, the right of the Investor to registration pursuant to
Section 1.4 shall be conditioned upon the Investor's participation in such
underwriting and
the inclusion of Registrable Securities in the underwriting shall be limited to
the extent provided herein. Notwithstanding any other provision of this Section
1.4, if the managing underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the managing underwriter
may limit the Registrable Securities to be included in such registration to
zero, provided that the Company shall ensure that such reductions shall be made
in the following order of priority: (x) first, the shares held by selling
holders, including, but not limited to, employees of the Company and members of
the Company's board of directors, other than the Investor shall be reduced; (y)
second, the shares held by the Investor shall be reduced; and (z) third, the
shares of the Company to be included in the underwriting shall be reduced. The
Company shall so advise all holders requesting to be included in the
registration and underwriting, and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among all the holder requesting to be included in the registration and
underwriting in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities held by them at the time of filing the registration
statement. To facilitate the allocation of shares in accordance with the above
provisions, the Company or the underwriters may round the number of shares
allocated to any holder to the nearest 100 shares. If any holder disapproves of
the terms of any such underwriting, such person may elect to withdraw therefrom
by written notice to the Company.
(c) Right to Terminate Registration. The Company shall have the right
to terminate or withdraw any registration initiated by it under this Section 1.4
prior to the effectiveness of such registration whether or not the Investor has
elected to include securities in such registration.
1.5 Registration Procedures. When the Company is required by the provisions of
Sections 1.3 to effect the filing of a registration statement concerning the
registration of any shares of Registrable Securities under the Securities Act,
the Company will, at its cost and expense (including without limitation, payment
of the costs and expenses described in Section 1.6), as expeditiously as
reasonably practicable:
(a) prepare and file with the Commission a registration statement with
respect to such securities and use all commercially reasonable best
efforts to cause such registration statement to become and remain
effective for the period of the distribution contemplated thereby
(determined as hereinafter provided);
(b) prepare and file as expeditiously as reasonably practicable and in
any event within ninety (90) days with the Commission such amendments
and supplements to such registration statement and the prospectus used
in connection therewith as may be necessary to keep such registration
statement effective for the period specified in Section 1.4(a) above
and comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities covered by such
registration statement in accordance with the sellers' intended method
of disposition set forth in such registration statement for such
period;
(c) furnish to each seller of Registrable Securities and to each
underwriter such number of copies of the registration statement and the
prospectus included therein (including each preliminary prospectus) as
such persons reasonably may request in order to facilitate the public
sale or other disposition of the Registrable Securities covered by such
registration statement;
(d) use its best efforts to register and qualify the Registrable
Securities covered by such registration statement under the securities
or "blue sky" laws of such jurisdictions as the sellers of Registrable
Securities or, in the case of an underwritten public offering, the
managing underwriter reasonably shall request, provided, however, that
the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general
service of process in any such jurisdiction unless the Company is
already subject to service in such jurisdiction and except as may be
required by the Securities Act;
(e) cause all such Registrable Securities to be listed on any
securities exchange on which the Common Stock of the Company is then
listed;
(f) immediately notify in writing each seller of Registrable Securities
and each underwriter under such registration statement, at any time
when a prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event as a result of which
the prospectus contained in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the
circumstances then existing. The Company will use its best efforts to
amend or supplement such prospectus in order to cause such prospectus
not to include, as to information provided by the Company, any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing as to
information provided by both the Company and the sellers of Registrable
Securities. The sellers of Registrable Securities agree upon receipt of
such notice forthwith to cease making offers and sales of Registrable
Securities pursuant to such registration statement or deliveries of the
prospectus contained
therein for any purpose until the Company has prepared and furnished
such amendment or supplement to the prospectus as may be necessary so
that, as thereafter delivered to purchasers of such Registrable
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 then existing;
(g) notify in writing each seller of Registrable Securities under such
registration statement of (i) the effectiveness of such registration
statement, (ii) the filing of any post-effective amendments to such
registration statement, or (iii) the filing of a supplement to such
registration statement; and
(h) make available for inspection upon reasonable notice during the
Company's regular business hours by each seller of Registrable
Securities, any underwriter participating in any distribution pursuant
to such registration statement, and any attorney, accountant or other
agent retained by such seller or underwriter, all material financial
and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers and directors to supply all
information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration
statement.
(i) provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereto to be listed on each securities
exchange or automated quotation system on which similar securities
issued by the Company are then listed.
(j) Use its best efforts to furnish, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such
securities are being sold through underwriters, (a) an opinion, dated
as of such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering, addressed to
the underwriters, if any, and (b) a letter, dated as of such date, from
the independent certified public accountants of the Company, in form
and substance as is customarily given by independent certified public
accountants to underwriters in an underwritten public offering
addressed to the underwriters.
For purposes of Section 1.5(a) and 1.5(b) and of Section 1.3(c), the
period of distribution of Registrable Securities in a firm commitment
underwritten public offering shall be deemed to extend until each underwriter
has completed the distribution of all securities purchased by it, and the period
of distribution of
Registrable Securities in any other registration shall be deemed to extend until
the earlier of the sale of all Registrable Securities covered thereby or one
hundred eighty (180) days after the effective date thereof, with reasonable
extensions to be granted for suspensions thereof.
In connection with and as a condition to each registration hereunder,
the sellers of Registrable Securities shall (a) provide such information and
execute such documents as may reasonably be required in connection with such
registration, (b) agree to sell Registrable Securities on the basis provided in
any underwriting arrangements, and (c) complete and execute all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required or requested under the terms of such underwriting
arrangements.
In connection with a registration pursuant to Section 1.3 covering an
underwritten public offering, the Company and each seller agree to enter into a
written agreement with the managing underwriter selected in the manner herein
provided in such form and containing such provisions as are customary in the
securities business for such an arrangement between such underwriter and
companies of the Company's size and investment stature.
1.6 Expenses. All expenses incurred by the Company in complying with Section 1.3
including, without limitation, all registration and filing fees, registration
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
transfer taxes, fees of transfer agents and registrars, and the reasonable fees
and disbursements of one counsel for the sellers of Registrable Securities but
excluding any Selling Expenses (as defined below), are called "Registration
Expenses." All underwriting discounts and selling commissions applicable to the
sale of Registrable Securities and the fees of more than one counsel for the
sellers are called "Selling Expenses."
The Company will pay all Registration Expenses in connection with a
registration statement under Section 1.3. All Selling Expenses in connection
with a registration statement under Section 1.3 shall be borne by the
participating sellers in proportion to the number of shares sold by each, or by
such participating sellers other than the Company (except to the extent the
Company shall be a seller) as they may agree.
1.7 Information by Holder. The holder or holders of Registrable Securities
included in any registration shall furnish to the Company such information
regarding such holder or holders of Registrable Securities, the Registrable
Securities held by them and the distribution proposed by such holder or holders
of Registrable Securities as the Company may reasonably request in writing and
as shall be
required in connection with any registration (including any amendment to a
registration statement or prospectus), qualification or compliance referred to
in this Section 1.7.
1.8 Lock-Up Agreements. Each holder of Registrable Securities shall agree to be
bound by such lock-up agreements (not to exceed a period of ninety (90) days
following the date of the prospectus relating to any such underwriting) as the
managing underwriter of any such registration shall specify as a requirement to
any such underwriting, provided that the entry of such holder of Registrable
Securities into such agreements shall be conditioned upon all current and then
greater than ten percent (10%) shareholders and executive officers and directors
of the Company also agreeing to execute such lock-up agreement regardless of the
number of shares of the capital stock of the Company then owned by them.
1.9 Indemnification and Contribution.
(a) In connection with a registration of the Registrable Securities
under the Securities Act pursuant to Section 1.3, the Company will
indemnify and hold harmless each seller of such Registrable Securities
thereunder and each of its officers and directors, each underwriter of
such Registrable Securities thereunder and each other person, if any,
who controls such seller or underwriter within the meaning of Section15
of the Securities Act, from and against any expenses, losses, claims,
damages or liabilities, joint or several, to which such seller,
underwriter or controlling person may become subject under the
Securities Act or under any other statute or at common law or
otherwise, insofar as such expenses, 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 any material
fact contained in any registration statement under which such
Registrable Securities were registered under the Securities Act, any
preliminary prospectus or final prospectus contained therein, offering
circular or other document or any amendment or supplement thereof or
any document incorporated by reference therein, 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 violations of applicable law relating to
such registration, including, without limitation, the Securities Act,
the Exchange Act, state securities laws or any rule or regulation
promulgated under such laws, and will pay the reasonable legal fees and
other expenses of each such seller, each of its officers and directors,
each such underwriter and each such controlling person incurred by them
in connection with investigating or defending any action whether or not
resulting in any liability insofar as such loss, expense, claim,
damage, liability or action results from the foregoing, provided,
however, that the Company will not be liable to a seller in any such
case if and to the extent
that any such loss, expense, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission so made in reliance upon and in conformity
with information furnished in writing and duly executed by any such
seller, any such underwriter or any such controlling person
specifically for use in such registration statement or prospectus, and,
provided further, however, that the Company will not be liable to a
holder in any such case to the extent that any such loss, expense,
claim, damage, liability or action arises out of or is based upon an
untrue or alleged untrue statement or omission or an alleged omission
made in any preliminary prospectus or final prospectus if (1) such
holder failed to send or deliver a copy of the final prospectus or
prospectus supplement with or prior to the delivery of written
confirmation of the sale of the Registrable Securities, and (2) the
final prospectus or prospectus supplement would have corrected such
untrue statement or omission.
(b) In connection with a registration of the Registrable Securities
under the Securities Act pursuant to Section 1.3, each seller of such
Registrable Securities thereunder, severally and not jointly, will
indemnify and hold harmless the Company, each person, if any, who
controls the Company within the meaning of the Securities Act, each
officer of the Company who signs the registration statement, each
director of the Company, each underwriter and each person who controls
any underwriter within the meaning of the Securities Act, against all
expenses, losses, claims, damages or liabilities, joint or several, to
which the Company or such officer, director, underwriter or controlling
person may become subject under the Securities Act or otherwise,
insofar as such expenses, 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 any material fact contained in
the registration statement under which such Registrable Securities was
registered under the Securities Act, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement
thereof, 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, and will
pay the reasonable legal fees and other expenses of the Company and
each such officer, director, underwriter and controlling person
reasonably incurred by them in connection with investigating or
defending any such expense, loss, claim, damage, liability or action,
provided, however, that such seller will be liable hereunder in any
such case if and only to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with information furnished in writing
to the Company by such seller specifically for use in such registration
statement or prospectus, and provided, further, however, that the
liability of each seller
hereunder shall be limited to the amount of net proceeds received by
such seller in connection with such registration.
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing thereof, but the
omission so to notify the indemnifying party shall not relieve it from
any liability that it may have to such indemnified party under this
Section 1.11 except and only to the extent the indemnifying party is
materially prejudiced by such omission. In case any such action shall
be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be permitted to participate in and, to the extent permitted, to
assume and undertake the defense thereof at such indemnifying party's
expenses provided that the indemnifying party shall not assume the
defense for matters as to which there is a conflict of interest or
there are separate and different defenses.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which the indemnified
party makes a claim for indemnification pursuant to this Section 1.9
but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time
to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the
fact that this Section 1.9 provides for indemnification in such case,
or (ii) contribution under the Securities Act may be required on the
part of the indemnifying party in circumstances for which
indemnification is provided under this Section 1.9; then, and in each
such case, the indemnifying party will , to the extent permitted by
applicable law, contribute to the aggregate losses, claims, damages or
liabilities to which it is subject (after contribution from others) in
such proportion as is appropriate to reflect relative fault of the
indemnifying party on the one hand and of the indemnified party on the
other as to the matters giving rise to such losses, claims, damages or
liabilities as well as any other relevant equitable considerations,
provided, however, that, in any such case, no person or entity guilty
of fraudulent misrepresentation (within the meaning of Section 12(f) of
the Securities Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
(e) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release
of such indemnified party from all liability on claims that are the
subject matter of such action, suit or proceeding.
1.10 Changes in Common Stock or Preferred Shares. If, and as often as, there is
any change in the Common Stock or the Preferred Shares by way of a stock split,
stock dividend, combination or reclassification, or through a merger,
consolidation, reorganization or recapitalization, or by any other means,
appropriate adjustment shall be made in the provisions hereof so that the rights
and privileges granted hereby shall continue with respect to the Common Stock or
the Preferred Shares as so changed.
1.11 Rule 144 Reporting and Rule 144A Information. With a view to making
available the benefits of certain rules and regulations of the Commission that
may at any time permit the resale of the Registrable Shares without
registration, the Company will:
(a) at all times use its commercially reasonable efforts to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities
Act;
(ii)file with the Commission in a timely manner all reports
and other documents required of the Company under the
Securities Act and the Exchange Act; and
(iii) furnish to each holder of Registrable Securities
forthwith upon request a written statement by the Company as
to its compliance with the reporting requirements of such Rule
144 and of the Securities Act and the Exchange Act, a copy of
the most recent annual or quarterly report of the Company, and
such other reports and documents of the Company and other
information in the possession of or reasonably obtainable by
the Company as such holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing
such holder to sell any Registrable Securities without
registration; and
(b) at any time, at the request of any holder of Preferred Shares or
shares of Registrable Securities, make available to such holder and to
any prospective transferee of such Preferred Shares or shares of
Registrable Securities the information concerning the Company described
in Rule 144A(d)(4) under the Securities Act.
1.12 Failure to Timely File Registration Statement. In the event the Company
fails to timely file a registration statement with the Commission pursuant to
the terms and
provisions of Section 1.3 hereof, the Company will then promptly issue or cause
to be issued to the Investor additional common stock purchase warrants equal to
10% of the Warrants originally issued (and, on a pro-rata basis, having the same
various exercise prices per share as the Warrants originally issued) for each
quarter such registration statement is not filed (the "Penalty Warrants"). The
shares of the Company's Common Stock underlying such Penalty Warrants shall have
the same registration rights as the Registrable Securities, and such other
rights as may be provided pursuant to the Shareholders' Agreement and the
Company's Articles of Incorporation as may be amended from time to time.
ARTICLE II
MISCELLANEOUS
2.1 Successors and Assigns. All covenants and agreements contained in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
(including without limitation transferees of any Preferred Shares, Warrants or
Penalty Warrants), whether so expressed or not; provided, however, that the
rights conferred in this Agreement on the Investors shall only inure to the
benefit of a transferee of Preferred Shares and/or Warrants and/or Penalty
Warrants if notice of such transfer or assignment is given to the Company and
such Investor Transferee has agreed in writing to be bound by the terms of this
Agreement and the Shareholders Agreement.
2.2 Governing Law; Jurisdiction; Venue; Attorney's Fees. This Agreement is
executed and delivered in the State of Florida, and this Agreement shall be
governed by and construed in accordance with the laws of the State of Florida
for all purposes and in all respects, without giving effect to the conflict or
choice of law provisions thereof. Any action and/or proceeding relating to or
arising out of this Agreement shall be brought solely in the federal and/or
state courts located in Miami-Dade County, Florida. The prevailing party/parties
in such action and/or proceeding shall be entitled to recover its reasonable
attorney's fees and costs from the other party.
2.3 Integration; Amendment. This Agreement and the other documents delivered
pursuant hereto constitute the full and entire understanding and agreement among
the parties with regard to the subjects hereof and thereof, and supersede any
previous agreement or understanding between or among the parties with respect to
such subjects. No party shall be liable or bound to any other party in any
manner by any warranties, representations or covenants except as specifically
set forth herein or therein. Except as expressly provided herein 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. Any
amendments, waivers,
discharges or terminations of this Agreement effected in accordance herewith
shall be binding upon all parties hereto, including those not signing such
amendment, waiver, discharge or termination.
2.4 Notices. All notices, requests, demands, and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given on the
date of service if served personally on the party to whom notice is to be given,
on the date of transmittal of service via telecopier to the party to whom notice
is to be given (provided the sender of such notice via telecopier is provided
with a printed confirmation of same), or on the third day after mailing if
mailed to the party to whom notice is to be given, by first class mail,
registered or certified, postage prepaid, or via overnight courier providing a
receipt and properly addressed as set forth on Schedule I hereto. Any party may
change its address for purposes of this paragraph by giving notice of the new
address to each of the other parties in the manner set forth above.
2.5 Counterparts; Telecopier. This Agreement may be executed in any number of
counterparts and via telecopier, each of which shall be enforceable against the
parties actually executing such counterparts, and all of which together shall
constitute one instrument.
2.6 Severability. In the event that any provision of this Agreement becomes or
is declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision; provided that no such severability shall be effective if it
materially changes the economic benefit of this Agreement to any party.
2.7 Titles and Subtitles. The titles and subtitles used in this Agreement are
used for convenience only and are not considered in construing or interpreting
this Agreement.
2.8 Rule of Construction that Ambiguities to be Construed Against the Drafter of
the Document Not Applicable. In view of the fact that the parties to this
Agreement have both been represented by their respective counsel in connection
herewith, the rule of construction that ambiguities shall be construed against
the drafter shall not be applicable.
IN WITNESS WHEREOF, the Company and the Investor have executed this Agreement as
of the day and year first above written.
THE COMPANY:
Intercallnet, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
THE INVESTOR:
Stanford Venture Capital Holdings, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Schedule I
If to the Company: Intercallnet, Inc.
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 3309
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Chief Executive Officer
with copies to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
If to the Investor: Stanford Venture Capital Holdings, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
with copies to: Hunton & ▇▇▇▇▇▇▇▇, P.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
