REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made this 11th day of November 1999, by and between
C3D Inc., a Florida corporation (the "Company"), and Wilbro Nominees Limited
("Wilbro").
W I T N E S S E T H:
WHEREAS, the Agreement is executed contemporaneously with that certain
Purchase Agreement, of even date herewith, by and between the Company and Wilbro
(the "Purchase Agreement") pursuant to which the Company will sell to Wilbro its
8.0% Series B Convertible Note due October 31, 2001 (the "Convertible Note") in
principal amount of Five Hundred Thousand Dollars ($500,000) subject to certain
conditions. Capitalized terms used and not defined herein shall have the
meanings ascribed to them in the Purchase Agreement; and
WHEREAS the Company has agreed to grant certain registration rights to
Wilbro in connection with the Registrable Stock (as hereinafter defined),
subject to the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the covenants contained herein, and
other good and valuable consideration, the receipt and legal sufficiency of
which are hereby acknowledged, and intending to be legally bound hereby, the
Company and Wilbro agree as follows:
1. Registration.
1.1 Certain Definitions. As used in this Agreement the following
terms shall be have the following meanings:
(a) "1933 Act" shall mean the Securities Act of 1933, as
amended, or any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(b) "1934 Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect at the time.
(c) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the 1933 Act.
(d) "Register", "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the 1933 Act, and the declaration or ordering of the
effectiveness of such registration statement.
(e) "Registered Securities" shall mean the common stock, par
value $.001 per share, of the Company (the "Common Stock") as registered with
the Commission in compliance with the 1933 Act.
(f) "Registrable Securities" shall mean (i) the Common Stock,
and (ii) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right or other security which is issued
as) a dividend or other distribution with respect to, or in exchange for or in
replacement of the shares referenced in (i) and (ii) above, excluding in all
cases, however, any Registrable Securities sold by a person in a transaction in
which his or her rights under this Paragraph 1 are not assigned.
(g) "Registration Expenses" shall mean all expenses incurred in
effecting any registration pursuant to this Agreement, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company and Wilbro, blue
sky fees and expenses, expenses of any regular or special audits incident to or
required by any such registration and fees and disbursements of counsel retained
by Wilbro, but shall not include Selling Expenses.
(h) "Rule 145" shall mean Rule 145 as promulgated by the
Commission under the 1933 Act, as such Rule may be amended from time to time, or
any similar successor rule that may be promulgated by the Commission.
(i) "Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of the Registrable Securities.
1.2 Company Registration.
(a) If the Company shall determine to register any of the Common
Stock or other equity securities for its own account, other than (1) a
registration relating solely to employee benefit plans or to a Rule 145
transaction, or (2) a registration on a registration form that does not permit
secondary sales, the Company shall (i) promptly give to Wilbro written notice of
the proposed registration and (ii) use its best efforts to include in such
registration (and in any related qualification under blue sky laws or other
compliance), and in any underwriting involved therein, any and all the
Registrable Securities of the same class or classes as the securities to be
registered by the Company specified in a written request made by Wilbro within
thirty (30) days after Wilbro receives such written notice from the Company,
except as set forth in Paragraph 1.2(b).
(b) If the registration of which the Company gives notice is for
a registered public offering involving an underwriting, the Company shall so
advise Wilbro as a part of the written notice given pursuant to Paragraph
1.2(a). In such event the right of Wilbro to registration pursuant to Paragraph
1.2(a) shall be subject to the provisions of Paragraph 1.7. If Wilbro proposes
to distribute its Registrable Securities through such underwriting, it shall,
together with the Company, enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by the
Company. Wilbro may elect not to be included in the registration by delivering
written notice to the Company at least seven days prior to the effective date of
the registration statement.
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(c) The right of Wilbro to include its Registrable Securities in
any registration pursuant to this Paragraph 1.2 shall commence on May 11, 2000
and shall terminate on December 31, 2000.
1.3 Right to Registered Securities.
(a) All Common Stock received by Wilbro pursuant to the
conversion of any portion of the Convertible Note by Wilbro shall be registered
as of the date on which Wilbro will have the right to convert such portion of
the Convertible Note to Common Stock.
(b) Pursuant to the Purchase Agreement Wilbro shall have the
right to convert (A) 40% of the aggregate principal amount of the Convertible
Note into Registered Securities on or after May 11, 2000, such percentage
increasing by increments of 10% monthly on the eleventh of each month until
November 11, 2000, at which time the holder of Convertible Note shall have the
right to convert all of the principal amount of the Convertible Note into
Registered Securities, or (B) all of the principal amount of the Convertible
Note in the event that the Company enters into a registration rights agreement
with Sands Brothers which contains terms more favorable than those provided
herein; provided, that in the event that the Company fails to register the
necessary shares of Common Stock to comply with the above, but not in the event
that such registration is not permissible under the 1933 Act in the opinion of
the Commission after best efforts to register such shares have been made by the
Company, the holder of the Convertible Note shall be entitled to receive the
value in cash of an additional two percent (2%) of the Registered Securities
such holder was entitled to receive pursuant to the terms hereof for the first
thirty (30) days and three percent (3%) of such Registered Securities for each
thirty (30) days thereafter until the Company has fully complied with this
Paragraph 1.3 and the terms and conditions of the Purchase Agreement. For
example, assuming a Conversion Price (as defined in the Purchase Agreement) of
$16 per share, Wilbro would be entitled to receive $4,000 in cash for the first
thirty (30) days after May 11, 2000 calculated as follows: $200,000 (40% of the
Convertible Note) divided by $16 (Conversion Price) equals 12,500 shares,
multiplied by 2% penalty equals 250 additional shares of Registered Securities,
multiplied by $16 equals $4,000.
1.4 Expenses of Registration. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Paragraphs 1.2 or 1.3 hereof shall be borne by the Company. All Selling Expenses
relating to Registrable Securities registered by Wilbro shall be borne by Wilbro
pro rata on the basis of the number of shares of Registrable Securities so
registered on its behalf.
1.5 Registration Procedures. If and whenever the Company is under an
obligation pursuant to the provisions of Paragraphs 1.2 or 1.3 to use its best
efforts to effect the registration of any Registrable Securities, the Company
shall as expeditiously as practicable:
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(a) prepare and file with the Commission a registration
statement, including a registration statement under Rule 415 of the 1933 Act, or
any similar rule that may be adopted by the Commission, if applicable, with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective in accordance with clause (b) hereof;
(b) prepare and file 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
at least nine (9) months and to comply with the provisions of the 1933 Act with
respect to the sale or other disposition of all Registrable Securities covered
by such registration statement;
(c) furnish to Wilbro such number of copies of a summary
prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the 1933 Act, and such other documents as
Wilbro may reasonably request in order to facilitate the public sale or other
disposition of such Registrable Securities;
(d) use its best efforts to register or qualify the Registrable
Securities covered by such registration statement under the securities or "blue
sky" laws of such jurisdictions as Wilbro shall reasonably request; provided,
that the Company shall not be required in connection therewith or as a condition
thereto to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions;
(e) notify Wilbro, at any time when a prospectus relating
thereto covered by such registration statement is required to be delivered under
the 1933 Act within the appropriate period mentioned in clause (b) hereof, of
the happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact in order to make the statements
therein in light of the circumstances under which they were made, not misleading
and at the request of Wilbro, prepare and furnish to Wilbro a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such shares,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements therein in
light of the circumstances under which they were made, not misleading; and
(f) furnish, at the request Wilbro, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to Paragraphs 1.2 or 1.3, if such securities are
being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective (i) an opinion, dated 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 to Wilbro; and (ii) a
letter dated such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants of the Company, in form and substance as is customarily given
by independent certified public accountants to underwriters, if any, and to
Wilbro.
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1.6 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Paragraph 1 with
respect to the Registrable Securities of Wilbro that Wilbro shall furnish to the
Company such information regarding itself, the Registrable Securities held by
it, and the intended method of disposition of such securities as shall be
required to effect the registration of Wilbro's Registrable Securities.
1.7 Cessation of Offering. Upon receipt of any notice from the
Company of the happening of any event of the kind described in Paragraphs 1.5(e)
or 4, Wilbro shall immediately discontinue disposition of the shares of
Registrable Securities or Registered Securities, pursuant to the registration
statement covering such shares until Wilbro's receipt of the copies of the
supplemented or amended prospectus contemplated by Paragraphs 1.5(e) or 4, and,
if so directed by the Company, Wilbro shall deliver to the Company all copies of
the prospectus covering such shares in Wilbro's possession at the time of
receipt of such notice.
1.8 Underwriting Requirements. In connection with any offering
involving an underwriting of shares of the Company's equity securities, the
Company shall not be required under Paragraph 1.2(b) to include any of Wilbro's
securities in such underwriting unless Wilbro accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it, and then only in such quantity as the underwriters determine in their sole
discretion will not, jeopardize the success of the offering by the Company. If
the total amount of securities, including Registrable Securities, requested by
shareholders to be included in such offering exceeds the amount of securities
sold other than by the Company that the underwriters determine in their sole
discretion is compatible with the success of the offering, then the Company
shall be required to include in the offering only that number of such
securities, including Registrable Securities, which the underwriters determine
in their sole discretion will not jeopardize the success of the offering (the
securities so included to be apportioned pro rata among the selling shareholders
according to the total amount of securities entitled to be included therein
owned by each selling shareholder or in such other proportions as shall mutually
be agreed to by such selling shareholders).
1.9 Delay of Registration. Wilbro shall not have any right to take
any action to restrain, enjoin or otherwise delay any registration as a result
of any controversy that may arise with respect to the interpretation or
implementation of this Agreement.
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1.10 Indemnification.
(a) In the event of any registration of any Registrable
Securities under the 1933 Act or registration or qualification of any
Registrable Securities pursuant to Paragraphs 1.2 or 1.3 and to the extent
permitted by law, the Company shall indemnify and hold harmless Wilbro, each
underwriter, if any, each broker or any other person acting on behalf of Wilbro
and each other person, if any, who controls any of the foregoing persons, within
the meaning of the 1933 Act, against any losses, claims, damages or liabilities,
joint or several, to which any of the foregoing persons, may become subject
under the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (each a "Violation"): (i)
an untrue statement or alleged untrue statement of a material fact contained in
any registration statement under which such Registrable Securities were
registered under the 1933 Act, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto, or any document
prepared and/or furnished by the Company incident to the registration or
qualification of any Registrable Securities pursuant hereto, (ii) 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, with
respect to any prospectus, necessary to make the statements therein in light of
the circumstances under which they were made, not misleading, or (iii) any
violation by the Company of the 1933 Act or state securities or "blue sky" laws
applicable to the Company and relating to action or inaction required of the
Company in connection with such registration or qualification under such state
securities or "blue sky" laws; and shall reimburse Wilbro, any underwriter,
broker or other person acting on behalf of Wilbro and each controlling person
for any legal or any other expenses reasonably incurred by any of them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon a Violation made in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by Wilbro or such underwriter specifically for use in
the preparation thereof, and provided further that the indemnity agreement
contained in this Paragraph 1.10(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld).
(b) Before Registrable Securities held by Wilbro shall be
included in any registration pursuant to this Agreement, Wilbro and any
underwriter acting on his behalf shall have agreed to indemnify and hold
harmless (in the same manner and to the same extent as set forth in Paragraph
1.10(a)) the Company, each director of the Company, each officer of the Company
who shall sign such registration statement and any person who controls the
Company within the meaning of the 1933 Act, and each agent and any underwriter
for the Company (within the meaning of the 0000 Xxx) against any losses, claims,
damages, or liabilities to which the Company or any such director, officer,
controlling person, agent, or underwriter may become subject, under the 1933 Act
or otherwise, insofar as such losses, claims, damages, or liabilities (or
actions in respect thereto) arise out of or are based upon any untrue statement
of any material fact contained in such registration statement, including any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, or arise out of or are based upon the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or omission was made in such registration
statement, preliminary or final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information furnished
by Wilbro expressly for use in connection with such registration; and Wilbro
will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer, controlling person, agent, or underwriter in
connection with investigating or defending any such loss, claim, damage,
liability, or action;, provided, however, that the indemnity agreement contained
in this Paragraph 1.10(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of Wilbro (which consent shall not be unreasonably
withheld).
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(c) Promptly after receipt by an indemnified party under this
Paragraph 1.10 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against any indemnifying
party under this paragraph, notify the indemnifying party in writing of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires to assume
the defense thereof with counsel mutually satisfactory to the parties. The
failure to notify an indemnifying party promptly of the commencement of any such
action, if prejudicial to his ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this
paragraph, but the omission so to notify the indemnifying party will not relieve
him of any liability that he may have to any indemnified party otherwise than
under this paragraph.
(d) If the indemnification provided for in this Paragraph 1.10
is held by a court of competent jurisdiction to be unavailable to an indemnified
party, with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage which resulted in such loss, liability, claim, damage
or expense as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(e) Notwithstanding the extent that the provisions on
indemnification and contribution contained in the underwriting agreement entered
into in connection with the underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement shall
control.
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1.11. Information by Wilbro. Wilbro shall furnish to the Company such
information as the Company reasonably requests in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in Paragraphs 1.2 or 1.3 of this Agreement.
1.12. Reports under Securities Exchange Act of 1934. With a view to
making available to Wilbro the benefits of Rule 144 under the 1933 Act and any
other rule or regulation of the Commission that may at any time permit Wilbro to
sell securities of the Company to the public without registration, the Company
agrees to use its best efforts to:
(a) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times after 90 days after the
effective date of the first registration statement filed by the Company for the
offering of its equity securities to the general public;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the 1933 Act and the 1934 Act; and
(c) furnish to Wilbro so long as Wilbro owns any of the
Registrable Securities forthwith upon request a written statement by the Company
that it has complied with the reporting requirements of the 1933 Act and the
1934 Act, a copy of the most recent annual or quarterly report of the Company,
and such other reports and documents filed by the Company as may be reasonably
requested in availing Wilbro of any rule or regulation of the Commission
permitting the selling of any such securities without registration.
Provided, however, that the obligations of the Company under this
Paragraph 1.9 shall be suspended during any period during which its compliance
with such obligations is not required by Rule 144 to enable Wilbro to sell such
Registrable Securities, without limitation on amount.
2. Rights Granted to Subsequent Investors. The Company shall not grant
registration rights to future investors in the Company that are inconsistent
with the rights granted herein without the written consent of Wilbro.
3. Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Agreement may only be
assigned by Wilbro to a transferee or assignee of such securities, provided: (a)
the Company is, within a reasonable time after such transfer, furnished with
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned;
(b) such transferee or assignee agrees in writing to be bound by and subject to
the terms and conditions of this Agreement; and (c) such assignment shall be
effective only if immediately following such transfer the further disposition of
such securities by the transferee or assignee is restricted under the 1933 Act.
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4. Other Transactions. The Company may suspend Wilbro's rights to make
sales pursuant to a registration statement at any time when the Board of
Directors of the Company reasonably believes that (i) due to pending or proposed
corporate developments including, without limitation, a pending or proposed
acquisition, merger, recapitalization, consolidation, reorganization or similar
transaction, or negotiations, discussions or pending proposals related thereto
(herein, a "Corporate Development"), or due to public filings with the
Commission, or due to any other similar events, it is advisable to defer the
effectiveness of the registration statement or request the withdrawal of the
effective registration statement, or (ii) the filing of the registration
statement or the offering of securities pursuant thereto would materially and
adversely affect a Corporate Development or be seriously detrimental to the
Company and its shareholders. The Company shall notify Wilbro if any of the
events described in clauses (i) and (ii) of this Paragraph 4 (herein, a
"Black-Out-Event") are applicable, in which case Wilbro shall be prohibited from
(x) disclosing to any person or entity the existence of Black-Out-Event or any
information related thereto, and (y) during the pendency of a Black-Out Event,
trading any of the shares of Common Stock held by Wilbro until either (I)
receipt by Wilbro of the supplemented or amended prospectus contemplated by
Paragraph 1.5(e) or (II) they are advised in writing by the Company that the use
of the applicable prospectus may be resumed, and Wilbro has received copies of
any additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such prospectus. The Company shall use its
reasonable efforts to insure that the use of the prospectus may be resumed as
soon as practicable.
5. Termination of Registration Rights. Wilbro shall not be entitled to
exercise any rights provided for in this Agreement after the earlier of (a)
December 31, 2000, (b) the date on which all of Wilbro's Registrable Securities
or Registered Securities have been disposed of, or (c) such time at which Wilbro
may transfer all of its Registrable Securities in any single three (3) month
period pursuant to Rule 144 (or such successor rule as may be adopted).
6. Successors and Assigns. Except as otherwise provided herein, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties (including
transferees of any shares of Registrable Securities). Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
7. Governing Law. This Agreement shall be governed by and construed
under the laws of the State of New York without giving effect to choice of law
or conflicts of law principles thereof.
8. Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
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9. Notices. Notices given hereunder shall be deemed to have been duly
given on the date of personal delivery or on the date of postmark if sent by
certified or registered mail, return receipt requested or express overnight
courier service, to the party being notified at his or its address specified on
the signature page hereto or such other address as the addressee may
subsequently notify the other parties of in writing. Copies of all notices shall
also be sent simultaneously to Xxxx X. Xxxxxx, Esquire, Blank Rome Xxxxxxx &
XxXxxxxx LLP, Xxx Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, telecopy:
000-000-0000 and Xxxxx X. Xxxxxxxx, Esquire, McGuire, Woods, Battle & Xxxxxx,
LLP, 0000 Xxxxxxxxxxx Xxxxxx, X.X., Xxxxx 0000, Xxxxxxxxxx, X.X. 00000,
telecopy: 000-000-0000. Such copies shall not constitute sufficient notice
pursuant to this Paragraph 9.
10. Amendments and Waivers. Any amendment or waiver effected in
accordance with this Agreement shall be binding upon each holder of any
Registrable Securities then outstanding, each future holder of all such
Registrable Securities, and the Company.
11. Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, such provision shall be excluded from
this Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
12. Entire Agreement; Amendment. This Agreement constitutes the full
and entire understanding and agreement between the parties with regard to the
subjects hereof and thereof.
13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
14. Delivery by Facsimile. This Agreement and each other agreement or
instrument entered into in connection herewith or contemplated hereby, and any
amendments hereto, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall reexecute original forms thereof and deliver them to all
other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
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15. Dispute Resolution. All claims, demands, disputes, controversies,
differences, or misunderstandings between the parties arising out of, by virtue
of, or in connection with, this Agreement shall first be negotiated, in good
faith, by the parties, and, if an acceptable resolution does not result, shall
then be submitted to, determined and finally settled by arbitration before the
International Chamber of Commerce (the "ICC"), in accordance with the provisions
of this Paragraph 15. The parties agree that the rules of the ICC then obtaining
for commercial arbitration shall govern any arbitration under this Agreement,
except that to the extent there is any conflict between this Paragraph 15 and
such rules, this Paragraph shall govern. The panel shall be composed of three
(3) arbitrators, with one (1) arbitrator being appointed by each party. The two
arbitrators so appointed shall appoint the third. In the event that the
arbitrators can not, after good faith discussions, agree upon a third
arbitrator, the third arbitrator shall be appointed by the ICC. The decision and
award of a majority of the arbitrators shall be the decision and award of the
panel. Such decision and award shall be final and binding by the parties. All
hearings and proceedings in the arbitration shall take place in New York City,
New York and shall be governed by the substantive law of the State of New York.
This agreement to arbitrate may be specifically enforced by any party. At any
time before a decision of the arbitration panel has been rendered, the parties
may resolve the matter before the panel by settlement. Each party shall bear the
fees of such party's witnesses and such party's own counsel. The other fees and
expenses of the arbitration shall be borne in accordance with the arbitration
award. In the absence of any award or designation within the award, such costs
and fees shall be borne equally by the parties.
* * *
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IN WITNESS WHEREOF, the Company and Wilbro have executed this Agreement
effective as of the date first above written.
C3D INC.
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx
President and Chief Executive Officer
Address: 000 Xxxx 00xx Xxxxxx, Xxxxx 0X
Xxx Xxxx, XX 00000
Telecopy: 000-000-0000
WILBRO NOMINEES LIMITED
By: /s/
--------------------------------------
Name:
Title: Secretary
Address: _______________________________
_______________________________
Telecopy: _______________________________
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 11, 1999]
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