EXECUTION VERSION
CONFIDENTIAL
INVESTOR RIGHTS AGREEMENT
This Investor Rights Agreement (this "Agreement"), dated as of February
2, 2000, by and among DME Interactive Holdings, Inc. (the "Company"), America
Online, Inc. (the "Investor") and Darien Dash ("Dash"). Capitalized terms
defined in the Subscription Agreement and used herein without definition have
the same meanings herein as in the Subscription Agreement.
In consideration of the agreements of the Investor contained in the
Subscription Agreement, the Company hereby grants to the Investor the rights set
forth herein:
1. DEFINITIONS. For purposes of this Agreement:
(a) "Affiliate" has the meaning specified in Commission Rule
144(a)(i).
(b) "Commission" means the Securities and Exchange Commission or
any successor.
(c) "Customized Service" has the meaning given such term in
Section 1.1 of the Strategic Agreement.
(d) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
(e) "Fair Market Value" means the closing price per share of the
Common Stock as set forth on NASDAQ, or if NASDAQ is not the principal trading
market for such security, the closing price for such security on the principal
securities exchange or trading market where such security is listed or traded,
or if the foregoing do not apply, the closing price of such security in the
over-the-counter market on the electronic bulletin board for such security.
(f) "Investors" means (i) the Investor, (ii) any Affiliate of the
Investor or its successor and (iii) any person or entity to whom the Investor or
any person or entity identified in clause (ii) of this Section 1(g) is permitted
to sell, transfer or assign any of its Registrable Securities, other than in a
sale pursuant to Rule 144 under the Securities Act or a registration effected
pursuant to this Agreement.
(g) "Register," "registered," and "registration" refer to a
registration effected by preparing and filing with the Commission a registration
statement or similar document in compliance with the Securities Act, and the
declaration or ordering by the Commission of effectiveness of such registration
statement or document.
(h) "Registration Expenses" means all expenses in connection with
the Company's performance of or compliance with its obligations under this
Agreement, including, without limitation, all (i) registration, qualification
and filing fees; (ii) fees, costs and expenses of compliance with securities or
blue sky laws; (iii) printing expenses; (iv) messenger, telephone and delivery
expenses incurred by the Company; (v) fees, expenses and disbursements of
counsel for the Company and of all independent certified public accountants
retained by the Company (including the expenses of any special audit and "cold
comfort" letters required by or incident to such performance); (vi) Securities
Act liability insurance if the Company so desires; (vii) fees, expenses and
disbursements of any other individuals or entities retained by the Company in
connection with the registration of the Registrable Securities; (viii) fees,
costs and expenses incurred in connection with the listing of the Registrable
Securities on each national securities exchange or automated quotation system on
which the Company has made application for the listing of its Common Stock; and
(ix) internal expenses of the Company (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties and expenses of any annual audit). Registration Expenses shall
not include selling commissions, discounts or other compensation paid to
underwriters or other agents or brokers to effect the sale of Registrable
Securities, or counsel fees and any other expenses incurred by Investors in
connection with any registration that are not specified in the immediately
preceding sentence.
(i) "Registrable Securities" means (i) the Subscribed Shares
issued pursuant to the Subscription Agreement, (ii) the shares of the Company's
Common Stock issued pursuant to the Warrant (the "Warrant Stock") or (iii)
shares of Common Stock or other securities of the Company issued as a dividend
or other distribution on or in exchange for any of the Subscribed Shares or
Warrant Stock specified in clause (i) and clause (ii).
(j) "Securities Act" means the Securities Act of 1933, as
amended, or any successor statute.
(k) "Strategic Agreement" means the Strategic Agreement between
the Company, Places of Color, Inc., CompuServe Interactive Services, Inc. and
the Investor, dated February 2, 2000.
(l) "Subscribed Shares" has the meaning given such term in
Section 2.01 of the Subscription Agreement.
(m) "Subscriber" has the meaning given such term in Exhibit A of
the Strategic Agreement.
(n) "Subscription Agreement" means the Subscription Agreement
between the Company and the Investor, dated February 2, 2000.
(o) "Warrant" means that Warrant issued by the Company to AOL as
of the date hereof.
2
2. COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If at any time or from time to time,
the Company shall determine to register any of its Common Stock, whether or not
for its own account, other than a registration relating to employee benefit
plans or a registration effected on Form S-4 (or its successor) ("Company
Registration"), the Company shall:
(i) provide to each Investor written notice thereof at least
twenty (20) days prior to the filing of the registration statement by the
Company in connection with such registration; and
(ii) include in such registration, and in any underwriting
involved therein, all those Registrable Securities specified in a written
request by each Investor received by the Company within ten (10) days after the
Company mails the written notice referred to above, subject to the provisions of
Section 2(b) below.
(b) UNDERWRITING. The right of any Investor to registration
pursuant to this Section 2 shall be conditioned upon the participation by such
Investor in the underwriting arrangements specified by the Company in connection
with such registration and the inclusion of the Registrable Securities of such
Investor in such underwriting to the extent provided herein. All Investors
proposing to distribute their Registrable Securities through such underwriting
shall (together with the Company) enter into an underwriting agreement in
customary form with the managing underwriter selected for such underwriting by
the Company and take all other actions, and deliver such opinions and
certifications, as may be reasonably requested by such managing underwriter.
Notwithstanding any other provision of this Section 2, 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 number of
Registrable Securities to be included in such registration. The Company shall so
advise all Investors distributing Registrable Securities through such
underwriting, and there shall be excluded from such registration and
underwriting, to the extent necessary to satisfy such limitation, shares held by
the Investors. As among the Investors as a group, the number of Registrable
Securities that may be included in the registration and underwriting shall be
allocated in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities required to be included (determined without regard to any
requirement of a request to be included in such registration) in such
registration held by all Investors at the time of filing the registration
statement. To facilitate the allocation of shares in accordance with the above
provisions, the Company may round the number of shares allocated to any Investor
to the nearest one hundred (100) shares.
(c) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2 prior to the effectiveness of such registration whether or not any
Investor has elected to include Registrable Securities in such registration.
3. EXPENSE OF REGISTRATION. All Registration Expenses incurred in
connection with the registration and other obligations of the Company pursuant
to Sections 2 and 4 shall be borne by Company.
3
4. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of this Agreement to effect the registration of Registrable
Securities, the Company shall:
(a) as promptly as practicable prepare and file with the
Commission a registration statement with respect to such Registrable Securities,
and use its reasonable diligent efforts to cause such registration statement to
become effective as promptly as practicable and remain effective thereafter as
provided herein;
(b) prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to such registration
statement and the prospectus used in connection therewith as may be necessary to
keep such registration statement effective and current and to comply with the
provisions of the Securities Act with respect to the sale or other disposition
of all Registrable Securities covered by such registration statement, including
such amendments (including post-effective amendments) and supplements as may be
necessary to reflect the intended method of disposition by the prospective
seller or sellers of such Registrable Securities;
(c) continue the effectiveness of such registration for a period
of 180 days from the effective date of such registration statement, or, if
earlier, until the completion of the sale of Registrable Securities included in
said registration statement;
(d) subject to receiving reasonable assurances of
confidentiality, for a reasonable period after the filing of such registration
statement, and throughout each period during which the Company is required to
keep a registration effective, make available for inspection by the selling
holders of Registrable Securities being offered, and any underwriters, and their
respective counsel, such financial and other information and books and records
of the Company, and cause the officers, directors, employees, counsel and
independent certified public accountants of the Company to respond to such
inquiries as shall be reasonably necessary, in the judgment of such counsel, to
conduct a reasonable investigation within the meaning of Section 11 of the
Securities Act;
(e) promptly notify the selling holders of Registrable Securities
and any underwriters and confirm such advice in writing, (i) when such
registration statement or the prospectus included therein or any prospectus
amendment or supplement or post-effective amendment has been filed, and, with
respect to such registration statement or any post-effective amendment, when the
same has become effective, (ii) of any comments by the Commission, by the
National Association of Securities Dealers Inc. ("NASD"), and by the blue sky or
securities commissioner or regulator of any state with respect thereto or any
request by any such entity for amendments or supplements to such registration
statement or prospectus or for additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of such
registration statement or the initiation or threatening of any proceedings for
that purpose, (iv) if at any time the representations and warranties of the
Company cease to be true and correct in all material respects, (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, or (vi) at any
time when a prospectus is required to be delivered under the Securities Act,
4
that such registration statement, prospectus, prospectus amendment or supplement
or post-effective amendment, or any document incorporated by reference in any of
the foregoing, contains an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading;
(f) furnish to each selling holder of Registrable Securities
being offered, and any underwriters, prospectuses or amendments or supplements
thereto, in such quantities as they may reasonably request and as soon as
practicable, that update previous prospectuses or amendments or supplements
thereto;
(g) use reasonable diligent efforts to (i) register or qualify
the Registrable Securities to be included in a registration statement hereunder
under such other securities laws or blue sky laws of such jurisdictions within
the United States of America as any selling holder of such Registrable
Securities or any underwriter of the securities being sold shall reasonably
request, (ii) keep such registrations or qualifications in effect for so long as
the registration statement remains in effect and (iii) take any and all such
actions as may be reasonably necessary or advisable to enable such holder or
underwriter to consummate the disposition in such jurisdictions of such
Registrable Securities owned by such holder; provided however, that the Company
shall not be required for any such purpose to (x) qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section 4(g),
(y) subject itself to taxation in any such jurisdiction or (z) consent to
general service of process in any such jurisdiction;
(h) cause all such Registrable Securities to be listed or
accepted for quotation on each securities exchange or automated quotation system
on which the Company's Common Stock then trades; and
(i) otherwise use reasonable diligent efforts to comply with all
applicable provisions of the Securities Act, and rules and regulations of the
Commission, and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering a period of at least twelve months
which shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder.
5. INDEMNIFICATION. In the event any of the Registrable Securities are
included in a registration statement under this Agreement:
(a) the Company will indemnify each Investor who participates in
such registration, each of its officers, directors, partners and agents, and
each person controlling such Investor within the meaning of Section 15 of the
Securities Act, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
5
litigation, commenced or threatened, arising out of or based on (i) any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or (ii) any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company in connection
with any such registration, qualification or compliance, and the Company will
reimburse each such Investor, each of its officers, directors, partners and
agents and each person controlling such Investor, each such underwriter and each
person who controls any such underwriter, for reasonable legal fees actually
incurred and other expenses incurred by them in connection with investigating,
preparing or defending any such claim, loss, damage, liability or action,
provided that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission or alleged untrue statement or omission, made
in reliance upon and in conformity with written information furnished to the
Company by an instrument duly executed by such Investor or underwriter.
(b) Each Investor will, if Registrable Securities held by such
Investor are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its officers, directors, partners and agents, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Investor, each of its officers, directors,
partners and agents and each person controlling such Investor within the meaning
of Section 15 of the Securities Act, against all expenses, claims, losses,
damages and liabilities (or actions in respect thereof) arising out of or based
on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement, prospectus, offering circular or
other document, or any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statement
therein not misleading, and will reimburse the Company, such Investors, such
directors, officers, persons, underwriters or control persons for any legal or
any other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such Investor.
(c) Each party entitled to indemnification under this Section 6
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought provided
that failure to give such prompt notice shall not relieve the Indemnifying Party
of its obligations hereunder unless it is materially prejudiced thereby, and
shall permit the Indemnifying Party to assume the defense of any such claim or
any litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld). Such Indemnified Party shall have the right to employ separate
6
counsel in any such action and to participate in the defense thereof, but the
reasonable and actual fees and expenses of such counsel shall be that of such
Indemnified Party unless (i) the Indemnifying Party has agreed to pay such fees
and expenses or (ii) the Indemnifying Party shall have failed to assume the
defense of such action or proceeding and employ counsel reasonably satisfactory
to such Indemnified Party in any such action or proceeding or (iii) the named
parties to any such action or proceeding (including any impleaded parties)
include both such Indemnified Party and the Indemnifying Party and such
Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to such Indemnified Party which are different from
or additional to those available to the Indemnifying Party (in which case, if
such Indemnified Party notifies the Indemnifying Party in writing of an election
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 action
or proceeding on behalf of such Indemnified Party, it being understood, however,
that the Indemnifying Party then shall have the right to employ separate counsel
at its own expense and to participate in the defense thereof, and shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys at any time for
all Indemnified Parties, which firm shall be designated in writing by a majority
of the Indemnified Parties who are eligible to select such counsel). No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, 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 to such claim or litigation. No
Indemnified Party may consent to entry of any judgment or enter into any
settlement without the prior written consent of the Indemnifying Party.
(d) If the indemnification provided for in this Section 6 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
herein, then the Indemnifying Party, in lieu of indemnifying the Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
with respect to such loss, liability, claim, damage or expenses in the
proportion that is appropriate to reflect the relative fault of the Indemnifying
Party and the Indemnified Party in connection with the statements or omissions
that 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 the Indemnified Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of 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.
6. RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without registration, for as
long as Registrable Securities are held by any Investor, the Company shall use
best efforts to:
7
(a) Make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(b) 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 (at any time after it has become subject to such reporting
requirements); and
(c) Furnish to any Investor promptly upon request a written
statement as to its compliance with the reporting requirements of 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 an Investor may reasonably request in availing itself of any rule
or regulation of the Commission allowing an Investor to sell Registrable
Securities without registration.
7. TERMINATION OF REGISTRATION RIGHTS. No Investor shall be entitled to
exercise any right provided for in this Agreement after the earlier of five (5)
years from the date hereof and such time as all Registrable Securities held by
such Investor may be sold under Rule 144 (or any successor rule) under the
Securities Act within a single three-month period.
8. INFORMATION TO BE PROVIDED BY THE INVESTORS. Each Investor whose
Registrable Securities are included in any registration pursuant to this
Agreement shall furnish the Company such information regarding such Investor and
the distribution proposed by such Investor as may be reasonably requested in
writing by the Company and as shall be required in connection with such
registration or the registration or qualification of such securities under any
applicable state securities law.
9. CO-SALE RIGHTS
(a) NOTICE. In the event that, during the initial eighteen (18)
month term of the Strategic Agreement, Dash desires to accept a bona fide offer
from a financially capable acquiror for the sale, transfer or other disposition
of any or all of the shares of capital stock of the Company owned of record or
beneficially by Dash or any securities ultimately convertible into or
exercisable for any such shares of capital stock (collectively, the "Sale
Shares"), Dash shall promptly deliver to the Investors a written notice of such
intended disposition (a "Sale Notice") setting forth the terms and conditions
thereof, including the number and type of securities to be disposed of, any
conditions to such disposition, the proposed timing of such disposition, the
consideration to be paid for such securities and the identity of the proposed
acquiror. Except as otherwise provided herein, Dash may not sell, transfer or
otherwise dispose of any shares of capital stock of the Company or any
securities ultimately convertible into or exercisable for such shares of capital
stock unless it delivers to the Investors a Disposition Notice and complies with
the provisions of this Section 9.
8
(b) GRANT OF CO-SALE RIGHTS. Each Investor shall have the right,
exercisable upon written notice to Dash within fifteen (15) Business Days after
receipt of a Sale Notice, to participate in such sale of the Sale Shares on the
same terms and conditions as those set forth in the Sale Notice. To the extent
any Investor exercises such right of participation (a "Participating Investor"),
Dash shall use his best efforts to cause the proposed acquiror to agree to
purchase all of the Sale Shares specified in the Sales Notice plus the number of
shares of Common Stock that each Participating Investor desires to sell in such
transaction. In the event that such proposed acquiror is unwilling to acquire
all such shares of Common Stock, the following provisions shall apply:
(i) Each Investor and Dash shall be deemed to own the number
of shares of Common Stock that it actually owns plus the number of shares of
Common Stock that are issuable upon conversion of any convertible securities of
the Company or upon the exercise of any warrants, options or similar rights then
owned by it at an exercise price less than the purchase price specified in the
Sale Notice.
(ii) Each Participating Investor may sell all or any part of
a number of Sale Shares equal to the product obtained by multiplying (i) the
aggregate number of shares of Common Stock the acquiror is willing to purchase
by (ii) a fraction, the numerator of which is the number of shares of Common
Stock of the Company deemed to be owned by such Participating Investor and the
denominator of which is the total number of outstanding shares of Common Stock
of the Company deemed to be owned by Dash and the Investors.
Each Participating Investor may effect its participation in the sale by
delivering to the Dash for transfer to the acquiror one or more certificates,
properly endorsed for transfer, which represent the number of shares that it is
entitled to sell pursuant to this Section 9.
(c) PAYMENT OF PROCEEDS. The stock certificates that the
Participating Investors deliver to Dash pursuant to Section 9(b)(ii) shall be
transferred by Dash to the acquiror in consummation of the sale of the Sale
Shares pursuant to the terms and conditions specified in the Sale Notice,
conditioned upon Dash's receipt of the sales proceeds, and Dash shall promptly
thereafter remit to each Participating Investor that portion of the sale
proceeds to which such Participating Investor is entitled by reason of its
participation in such sale.
(d) NON-EXERCISE. The exercise or non-exercise of the rights of
the Participating Investors hereunder to participate in one or more sales of
Sale Shares made by Dash shall not adversely affect its right to participate in
subsequent sales by Dash. In the event none of the Investors elects to exercise
its co-sale rights hereunder with respect to a disposition, Dash may consummate
such disposition in accordance with the terms specified in the Sale Notice but
only within 90 days after the expiration of the Investors' co-sale rights.
9
(e) EXCEPTIONS. Notwithstanding the foregoing, the co-sale rights
of the Investors set forth in this Section 9 shall not apply to any transfer by
Dash to his spouse or descendants or to any trust for the benefit of any of such
persons; provided that the transferee shall furnish the Investors and the
Company with a written agreement to be bound by and comply with all provisions
of this Agreement. Such transferred stock shall remain subject to the provisions
of this Agreement, and such transferee shall execute a counterpart of this
Agreement and be treated as if it were "Dash" for the purposes of this
Agreement. In addition to the foregoing, Dash shall be permitted to transfer for
cash, shares of Common Stock of the Company then held by Dash up to an aggregate
amount received for such transfer of (i) $50,000 during each successive three
(3) month period beginning on the date hereof, (ii) $250,000 during each
successive three (3) month period beginning on the date the Customized Service
obtains 50,000 Subscribers, or (iii) $500,000 during each successive three (3)
month period beginning on the date the Customized Service obtains 100,000
Subscribers.
10. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to depart from the provisions hereof may
not be given unless the Company and Dash have obtained the written consent of
holders of a majority of the Registrable Securities then subject to this
Agreement. Notwithstanding the foregoing, a waiver or consent to departure from
the provisions hereof with respect to a matter which relates exclusively to the
rights of Investors whose Registrable Securities are being sold pursuant to a
registration statement and which does not directly or indirectly affect the
rights of other Investors may be given by the holders of a majority of the
Registrable Securities being sold by such holders.
(b) NOTICES. All communications provided for hereunder shall be
sent by registered or certified mail, reputable overnight delivery service or
facsimile transmission. Communications to the Investor shall be sent to the
Investor at its address set forth in the Subscription Agreement and
communications sent to any Investor other than the Investor shall be sent to
such Investor at its address in the security register or other records of the
Company. Communications to the Company and to Dash shall be sent to the Company
as provided in the Subscription Agreement.
(c) DESCRIPTIVE HEADINGS. The descriptive headings of the several
Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
(d) GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
(e) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of this Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
10
(f) NON-WAIVER; CUMULATIVE REMEDIES. No course of dealing or any
delay or failure to exercise any right hereunder on the part of the Investor or
the Company shall operate as a waiver of such right or otherwise prejudice the
rights, powers or remedies of the Investor, Dash or the Company. No single or
partial waiver by the Investor, Dash or the Company of any provision of this
Agreement or of any breach or default hereunder or of any right or remedy shall
operate as a waiver of any other provision, breach, default right or remedy or
of the same provision, breach, default right or remedy on a future occasion. The
rights and remedies provided in this Agreement are cumulative and are in
addition to all rights and remedies which the Investor, Dash or the Company may
have in law or in equity or by statute or otherwise.
(g) WAIVER OF JURY TRIAL. Each of the parties hereto irrevocably
and unconditionally waives trial by jury in any legal action or proceeding
relating to this Agreement or the transactions contemplated hereby and for any
counterclaim therein.
(h) SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized signatories
hereunto duly authorized as of the date first above written.
DME INTERACTIVE HOLDINGS, INC.
By /s/ DARIEN DASH
------------------------------
Name: Darien Dash
Title: Chief Executive Officer
AMERICA ONLINE, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President-Business Affairs
/s/ DARIEN DASH
----------------------------------
Darien Dash
12
