Exhibit 10.5
REGISTRATION RIGHTS AGREEMENT
This registration rights agreement is dated May 12, 2000, and is
between TERACOMM RESEARCH, INC., a Delaware corporation ("TeraComm"), and
ATLANTIC TECHNOLOGY VENTURES, INC., a Delaware corporation ("Atlantic").
Pursuant to a stock purchase agreement dated the date hereof between
TeraComm and Atlantic, TeraComm is issuing to Atlantic 1,400 shares of its
Series A preferred stock, par value $0.001 per share ("Series A Preferred
Stock"; those shares, the "Shares"). The Shares are being issued without being
registered under the Securities Act, as they are being issued in reliance upon
an exemption from registration. TeraComm and Atlantic wish to specify Atlantic's
rights in connection with public offerings and sales of those shares.
The parties therefore agree as follows:
1. Definitions. As used in this agreement, the following terms have the
following meanings:
"Business Day" means any Monday, Tuesday, Wednesday, Thursday or Friday
that is not a day on which banking institutions in the State of Vermont are
authorized by law, regulation or executive order to close.
"Common Stock" means TeraComm's common stock, par value $0.001 per
share.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
(or any similar successor federal statute), and the rules and regulations
thereunder, as in effect from time to time.
"Holder" means Atlantic and its successors, assigns and transferees
(subject to Section 13). For purposes of this agreement, TeraComm may, subject
to Section 13, deem the registered holder of a Registrable Security to be the
Holder thereof, except that the beneficial owner of any Registrable Securities
held in "street name" will be deemed to be the Holder thereof.
"Person" means any individual, corporation (including any non-profit
corporation), general or limited partnership, limited liability company, joint
venture, estate, trust, association, organization, labor union, government or
agency or political subdivision thereof or other entity.
"Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by a prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities covered
by that Registration Statement and by all other amendments and supplements to
the prospectus, including post-effective amendments, and all material
incorporated by reference in such prospectus.
"Registrable Securities" means (1) any shares of Common Stock issued or
issuable upon conversion of the Shares, and (2) any shares of Common Stock
issued as, or issued upon the conversion or exercise of any warrant, right or
other convertible security that is issued as, a dividend or other distribution
with respect to, or in exchange for or in replacement of, any shares of Common
Stock issued or issuable upon conversion of the Shares.
"Registration Statement" means any registration statement covering any
of the Registrable Securities pursuant to the provisions of this agreement,
including the Prospectus included therein, all amendments and supplements to
that Registration Statement, including post-effective amendments, all exhibits
and all material incorporated by reference in that Registration Statement.
"Reporting Event" means the consummation of TeraComm's first
firm-commitment underwritten public offering of Common Stock.
"SEC" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended (or any
similar successor federal statute), and the rules and regulations thereunder as
in effect from time to time.
"Underwritten Offering" means an offering that is registered under the
Securities Act in which securities of TeraComm are sold to an underwriter for
reoffering to the public.
2. Securities Subject to this Agreement. The securities entitled to the
benefits of this agreement are the Registrable Securities but, with respect to
any particular Registrable Security, only so long as that security continues to
be a Restricted Security. A Registrable Security that has ceased to be a
Registrable Security cannot thereafter become a Registrable Security. As used
herein, a "Restricted Security" is a Registrable Security that has not been
effectively registered under the Securities Act and distributed in accordance
with an effective Registration Statement and that has not been distributed by a
Holder pursuant to Rule 144, Rule 903 or Rule 904, unless, in the case of a
Registrable Security distributed pursuant to Rule 903 or Rule 904, any
applicable restricted period has not expired or the SEC or its staff has taken
the position in a published release, ruling or no-action letter that securities
distributed under Rule 903 or 904 are ineligible for resale in the United States
under Section 4(1) of the Securities Act notwithstanding expiration of the
applicable restricted period.
3. Demand Registration. Upon the written request of Holders owning at
least a majority of the Registrable Securities and provided that there is then
no effective Registration Statement in effect with respect to all the
Registrable Securities, TeraComm shall in accordance with the terms of this
agreement as promptly as possible register under the Securities Act the
Registrable Securities that the Holders request be so registered, on condition
that the Registrable Securities that the requesting Holders request be so
registered represent not less than 25% of the Registrable Securities owned by
the requesting Holders or have a value of not less than $5 million, based on the
Current Market Price. As used in this Agreement, "Current Market Price" means
the current market price of a share of TeraComm common stock as determined in
good faith by the TeraComm's board of directors or, if TeraComm's board of
directors is unable to so determine, by a nationally-recognized independent
investment banking firm selected by Atlantic and TeraComm or, in the event
Atlantic and TeraComm are unable to agree upon the selection of an investment
banking firm, by a nationally-recognized independent investment banking firm
selected by a nationally-recognized independent investment banking firm selected
by Atlantic and one selected by TeraComm.
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(b) Upon receipt of any request for registration pursuant to
Section 3(a) from any Holders, TeraComm shall promptly give written notice of
that request to all other Holders. TeraComm shall include in the requested
registration all Registrable Securities requested to be included by those of the
other Holders who make that request by written notice to TeraComm delivered
within 10 Business Days of delivery of TeraComm's notice. If TeraComm receives a
request for inclusion in the registration of the Registrable Securities of
additional Holders, it shall promptly so inform the Holders who made the initial
request for registration.
(c) A Holder or Holders requesting a registration pursuant to
this Section 3 may, at any time prior to the effective date of the Registration
Statement relating to that registration, revoke that request by providing a
written notice to TeraComm revoking that request. If a Holder or Holders revoke
any demand for registration or that demand registration otherwise fails to
become effective as a result of any action or inaction by the Holder or Holders,
that Holder or those Holders, at their option, shall either pay all Registration
Expenses with respect to that revoked demand or count that revoked demand as the
completed demand for registration to which that Holder or those Holders are
entitled pursuant to this Section 3.
(d) TeraComm is not required to register the Registrable
Securities prior to the date six months after the Reporting Event or during the
90-day period following the completion of any Underwritten Offering. Atlantic
may not demand more than two registrations pursuant to this Section 3.
(e) Subject to Section 3(c), TeraComm shall pay all Registration
Expenses with respect to any demand registration pursuant to this Section 3.
(f) TeraComm shall use its best efforts to (1) cause the
Registration Statement relating to any demand registration pursuant to this
Section 3 to become effective under the Securities Act as promptly as
practicable, (2) thereafter keep that Registration Statement effective
continuously for the period specified in Section 3(g), and (3) prevent the
happening of any event of the kind described in Sections 6(a)(2)(D) and (E).
TeraComm may initiate or engage in negotiations with respect to, or consummate,
any transaction (whether or not material to TeraComm), even if the effect
thereof would be cause the happening of an event described in Section
6(a)(2)(F).
(g) A demand registration requested pursuant to this Section 3
will not be deemed to have been effected or complied with unless the
Registration Statement relating thereto has become effective under the
Securities Act and remain continuously effective (except as otherwise permitted
under this agreement) for a period ending on the earlier of the following dates:
(1) the date 120 days after the effective date of that Registration
Statement; and
(2) the date on which all Registrable Securities covered by that
Registration Statement have been sold and the distribution contemplated
thereby has been completed.
(h) TeraComm and any holder of TeraComm's securities that has
registration rights (other than the Holders) may include its securities in any
demand registration effected pursuant to this Section 3, except that if the
managing underwriter or underwriters of any
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Underwritten Offering contemplated in connection with that registration advise
the Holders in writing that the total amount or kind of securities to be include
in that Underwritten Offering is sufficiently large to materially adversely
affect the success of the Underwritten Offering, then TeraComm shall reduce the
amount or kind of securities to be offered for the account of TeraComm or any
other holder to the extent necessary to reduce the total amount or kind of
securities to be included in the contemplated Underwritten Offering to the
amount or kind recommended by the managing underwriter or underwriters.
(i) TeraComm may elect to effect any registration under this
Section 3 on a form permitted by the rules and regulations of the SEC, except
that TeraComm shall use Form S-3 if TeraComm is eligible to use that form.
(j) When in the opinion of counsel for TeraComm registration of
the Registrable Securities is not required by the Securities Act and other
applicable securities laws in connection with a proposed sale of Registrable
Securities, the Holders may not request a demand registration pursuant to this
Section 3 in connection with that proposed sale and TeraComm shall promptly
provide to the transfer agent and the Holder's or Holders' broker or brokers in
connection with any sale transaction an opinion of counsel for TeraComm to the
effect set forth above, on condition that the Holder or Holders provide
representation letters in customary form to counsel for TeraComm rendering that
opinion.
4. Piggyback Registration. If TeraComm at any time proposes to file a
registration statement with respect to any class of its equity securities,
whether for its own account (other than a registration statement on Form S-4 or
S-8, or any successor or substantially similar form, or a registration statement
covering (A) an employee stock option, stock purchase or compensation plan or
securities issued or issuable pursuant to any such plan, or (B) a dividend
reinvestment plan) or for the account of one or more holders of securities of
TeraComm (other than the Holders) pursuant to demand registration rights granted
by TeraComm (each such holder, a "Requesting Securityholder"), then TeraComm
shall in each case give written notice of the proposed filing to all Holders at
least 20 Business Days before the anticipated filing date of the registration
statement by TeraComm, which notice must offer to all Holders the opportunity to
have any or all of the Registrable Securities included in that registration
statement, subject to the terms of this agreement. Each Holder that wishes to
have any of its Registrable Securities registered under this Section 4 must so
advise TeraComm within 10 Business Days after the date of its receipt of that
notice, specifying how many of its Registrable Securities it wishes to have so
registered, and subject to Section 4(b) TeraComm shall include in that
Registration Statement all Registrable Securities that Holders have requested be
included therein, except that in the event that Registration Statement is for an
Underwritten Offering, the Holders included therein must join in the
underwriting on the same terms and conditions as TeraComm or the Requesting
Securityholders (except that the Holders will not be required to give any
representations relating to TeraComm in their capacity as the Holders), and
shall execute any underwriting agreement, "lock-up" letters or other customary
agreements or documents executed by TeraComm or the Requesting Securityholders
in connection with that Underwritten Offering.
(b) If the managing underwriter or underwriters of any such
proposed public offering advise TeraComm in writing that the total amount or
kind of securities that the Holders, TeraComm, any Requesting Securityholders
and any other Persons intended to be included in
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that proposed public offering is sufficiently large to materially adversely
affect the success of that proposed public offering, then TeraComm may, upon
written notice to all Holders, reduce pro rata the number of Registrable
Securities and the amount or kind of securities to be offered for the accounts
of any other Persons requesting registration of securities pursuant to rights
similar to the rights of the Holders under this Section 4 to the extent
necessary to reduce the total amount or kind of securities to be included in
that proposed public offering to the amount or kind recommended by that managing
underwriter or underwriters before the securities offered by TeraComm or any
Requesting Securityholder are so reduced.
(c) Neither the giving of notice by TeraComm nor any request by
the Holders to register Registrable Securities pursuant to Section 4(a) will in
any way obligate TeraComm to file a Registration Statement with the SEC.
TeraComm may at any time prior to its effective date determine not to offer the
securities to which a Registration Statement relates or withdraw that
Registration Statement from the SEC, all without incurring any liability to the
Holders.
(d) When in the opinion of counsel for TeraComm registration of
the Registrable Securities is not required by the Securities Act and other
applicable securities laws in connection with a proposed sale of Registrable
Securities, the Holders may not request a piggyback registration pursuant to
this Section 4 in connection with that proposed sale and TeraComm shall promptly
provide to the transfer agent and the Holder's or Holders' broker or brokers in
connection with any sale transaction an opinion of counsel for TeraComm to the
effect set forth above, on condition that the Holder or Holders provide
representation letters in customary form to counsel for TeraComm rendering that
opinion.
5. Limitations on Subsequent Registration Rights. TeraComm may not
without the consent of the Holders owning a majority of the Registrable
Securities enter into with any Person any other agreement granting registration
rights that are, in the reasonable judgment of Holders owning a majority of the
Registrable Securities, superior to the rights granted in this Agreement, unless
TeraComm grants the Holders rights comparable to those that it proposes to grant
in that other agreement..
6. Registration Procedures and Other Agreements. (a) In connection with
TeraComm's registration obligations pursuant to Section 3 and, to the extent
applicable thereto, Section 4, TeraComm shall do the following:
(1) prepare and file with the SEC a new Registration Statement or such
amendments and post-effective amendments to an existing Registration
Statement as may be necessary to keep that Registration Statement
effective, except that no Registration Statement need remain in effect
after all Registrable Securities covered by that Registration Statement
have been sold and distributed as contemplated by that Registration
Statement;
(2) notify each selling Holder promptly of the following:
(A) when a new Registration Statement, amendment thereto, Prospectus
or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to any new Registration Statement
or post-effective amendment, when it has become effective;
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(B) of any request by the SEC for amendments or supplements to any
Registration Statement or Prospectus or for additional
information;
(C) of the issuance by the SEC of any comments with respect to any
filing;
(D) of any stop order suspending the effectiveness of any
Registration Statement or the initiation or threatening of any
proceedings for that purpose;
(E) of any suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
(F) of the happening of any event that makes any statement of a
material fact made in any Registration Statement, Prospectus or
any document incorporated therein by reference untrue or that
requires the making of any changes in any Registration
Statement, Prospectus or any document incorporated therein by
reference in order to make the statements therein (in the case
of any Prospectus, in the light of the circumstances under which
they were made) not misleading; and make every reasonable effort
to obtain as promptly as practicable the withdrawal of any order
or other action suspending the effectiveness of any Registration
Statement or suspending the qualification or registration (or
exemption therefrom) of the Registrable Securities for sale in
any jurisdiction;
(3) furnish to each selling Holder, without charge, at least one manually
signed or "edgarized" copy and as many conformed copies as that Holder
reasonably requests, of the then-effective Registration Statement and
any post-effective amendment thereto, and one copy of all financial
statements and schedules, all documents incorporated therein by
reference and all exhibits thereto (including those incorporated by
reference);
(4) deliver to each selling Holder, without charge, as many copies of the
then-effective Prospectus (including each prospectus subject to
completion) and any amendments or supplements thereto as that Holder
reasonably requests;
(5) use best efforts to register or qualify under the securities or blue
sky laws of such jurisdictions as the selling Holders reasonably
request in writing and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in those jurisdictions
of the Registrable Securities covered by the then-effective
Registration Statement, except that TeraComm will not be required to
(A) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify or (B) subject itself to general
taxation in any such jurisdiction;
(6) upon the occurrence of any event contemplated by Section 6(a)(2)(F), as
promptly as practicable (in light of the circumstances causing the
occurrence of that event) prepare a supplement or post-effective
amendment to the Registration Statement or the related Prospectus or
any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
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(7) use reasonable efforts to cause all Registrable Securities covered by
the Registration Statement to be listed on each securities exchange (or
quotation system operated by a national securities association) on
which identical securities issued by TeraComm are then listed, and
enter into customary agreements including, if necessary, a listing
application and indemnification agreement in customary form;
(8) if the registration is in connection with an Underwritten Offering,
enter into an underwriting agreement with respect to the Registrable
Securities containing provisions that are customary in connection with
underwritten secondary offerings, including representations, opinions
of counsel, letters of accountants and indemnification provisions with
underwriters that acquire Registrable Securities;
(9) otherwise use its best efforts to comply in all material respects with
all applicable rules and regulations of the SEC relating to such
registration and the distribution of the securities being offered and
make generally available to its securities holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and
complying with Rule 158 of the SEC thereunder;
(10) cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.; and
(11) make available for inspection by a representative of selling Holders
and any attorney or accountant retained by such selling Holders all
financial and other records, pertinent corporate documents and
properties of TeraComm and cause TeraComm's officers, directors and
employees to supply all information reasonably requested by, and to
cooperate fully with, any such representative, underwriter, attorney or
accountant in connection with such registration, and otherwise to
cooperate fully in connection with any due diligence investigation;
provided that such representatives, underwriters, attorneys or
accountants enter into a confidentiality agreement, in form and
substance reasonably satisfactory to TeraComm, prior to the release or
disclosure to them of any such information, records or documents.
(b) Each selling Holder shall furnish to TeraComm, upon request,
in writing such information and documents as, in the opinion of counsel to
TeraComm, is reasonably necessary to prepare properly and file that Registration
Statement in accordance with the applicable provisions of the Securities Act.
7. Registration Expenses. Whether or not any Registration Statement
becomes effective, TeraComm will be responsible for all expenses incident to
TeraComm's performance of or compliance with this agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
one counsel in connection with blue sky qualifications or registrations (or the
obtaining of exemptions therefrom) of the Registrable Securities), the
reasonable fees and disbursements of one counsel retained by the Holders,
printing expenses (including expenses of printing Prospectuses), messenger and
delivery expenses, internal expenses (including all salaries and expenses of its
officers and employees performing legal or accounting duties), fees and
disbursements of its counsel and its independent certified public accountants
(including the
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expenses of any special audit or "comfort" letters required by or incident to
such performance or compliance), securities acts liability insurance (if
TeraComm elects to obtain such insurance), fees and expenses of any special
experts retained by TeraComm in connection with any registration hereunder and
the fees and expenses of any other Person retained by TeraComm (all such fees
and expenses being referred to as "Registration Expenses"). Not included in
Registration Expenses are underwriting discounts, commissions or fees and any
stock transfer taxes, attributable to the sale of the Registrable Securities.
8. Suspension of Sales under Certain Circumstances. (a) Upon receipt of
any notice from TeraComm that dispositions under the then-current Prospectus
must be discontinued and suspended, whether as a result of an event described in
Section 6(a)(2)(D), (E) or (F) or otherwise, each Holder shall forthwith
discontinue and suspend disposition of Registrable Securities pursuant to that
Prospectus until (1) the Holders are advised in writing by TeraComm that a new
Registration Statement covering the offer of Registrable Securities has become
effective under the Securities Act, or (2) the Holders receive copies of a
supplemented or amended Prospectus contemplated by Section 6, or (3) the Holders
are advised in writing by TeraComm that they may resume use of the Prospectus.
(b) If at any time following the date hereof any shares of Common
Stock are to be sold pursuant to an Underwritten Offering (other than in
connection with a registration statement on Form S-4 or S-8, or any successor or
substantially similar form, or a registration statement covering (A) an employee
stock option, stock purchase or compensation plan or securities issued or
issuable pursuant to any such plan, or (B) a dividend reinvestment plan), then
for the period commencing 15 days prior to, and expiring 90 days after, the
effective date of such Underwritten Offering, none of the Holders may effect any
public sale or distribution of any Registrable Securities or any other shares of
Common Stock of TeraComm then owned by the Holders, other than pursuant to that
Underwritten Offering (if any Registrable Securities are included in such
Underwritten Offering).
9. Indemnification. (a) TeraComm shall indemnify, to the full
extent permitted by law, but without duplication, each Holder, any of their
respective officers and directors, if any, and each Person who controls any
Holder within the meaning of the Securities Act against all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation
and reasonable legal fees and expenses) resulting from any untrue statement of a
material fact in, or any omission of a material fact required to be stated in,
any Registration Statement or in any preliminary or final Prospectus, or any
amendment or supplement thereto, or necessary to make the statements therein (in
the case of a Prospectus in light of the circumstances under which they were
made) not misleading, except that TeraComm will not be liable in any such case
to the extent that any such loss, claim, damage, liability or expense (A) arises
out of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to TeraComm by or on behalf of the Holders
specifically for inclusion therein or (B) is caused by any untrue statement or
omission, or any alleged untrue statement or omission, made in a Prospectus but
eliminated or remedied in a subsequent Prospectus if TeraComm shall have timely
furnished copies thereof to the relevant Holder in accordance with this
agreement and a copy of the Prospectus was required pursuant to the Securities
Act to be sent or given by that Holder or on its
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behalf to the Person asserting that loss, claim, damage, liability or expense at
or prior to the sale of those Registrable Securities to that Person and was not
so sent or given.
(b) In connection with any Registration Statement covering
Registrable Securities of any Holder, that Holder shall furnish to TeraComm in
writing such information as TeraComm reasonably requests for use in connection
with any such Registration Statement or Prospectus and shall indemnify, to the
full extent permitted by law, but without duplication, TeraComm, its officers,
directors, stockholders, employees, advisors and agents, and each Person who
controls TeraComm (within the meaning of the Securities Act), against any
losses, claims, damages, liabilities and expenses resulting from any untrue
statement of a material fact in, or any omission of a material fact required to
be stated in, the Registration Statement or in any preliminary or final
Prospectus, or any amendment or supplement thereto, or necessary to make the
statements therein (in the case of a Prospectus in light of the circumstances
under which they were made) not misleading, but only to the extent that such
untrue statement or omission is contained in any information so furnished in
writing by that Holder to TeraComm specifically for inclusion therein. If the
offering to which the Registration Statement relates is an Underwritten
Offering, each Holder shall enter into an underwriting agreement in customary
form with the underwriters and indemnify the underwriters, their officers and
directors, if any, and each Person who controls the underwriters within the
meaning of the Securities Act to the same extent as each Holder is required to
indemnify TeraComm.
(c) Any Person entitled to indemnification hereunder must (1)
give prompt notice to the indemnifying party of any claim with respect to which
it seeks indemnification, and (2) permit the indemnifying party to assume the
defense of that claim with counsel reasonably satisfactory to the indemnified
party, except that the indemnified party may employ separate counsel and
participate in, but not control, the defense of that claim. The indemnified
party will be responsible for the fees and expenses of such counsel, unless (A)
the indemnifying party fails to assume the defense of that claim and employ
counsel reasonably satisfactory to the indemnified party in a timely manner, or
(B) in the reasonable judgment of the indemnified party, based upon written
advice of its counsel, a conflict of interest may exist between the indemnified
party and the indemnifying party with respect to that claim (in which case, if
the indemnified party notifies the indemnifying party in writing that it elects
to employ separate counsel at the expense of the indemnifying party, the
indemnifying party may not assume the defense of any claim as to which that
conflict of interest may exist). The indemnifying party will not be subject to
any liability for any settlement made without its consent. No indemnified party
will be required to consent to the entry of any judgment or enter into any
settlement that does not require that the claimant or plaintiff give the
indemnified party a release from all liability in respect of that claim or
litigation. An indemnifying party who is not entitled to, or elects not to,
assume the defense of the claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by that
indemnifying party with respect to that claim, as well as one local counsel in
each relevant jurisdiction.
(d) If for any reason indemnification provided for in Section
9(a) or 9(b) is unavailable to an indemnified party or insufficient to hold it
harmless as contemplated by Sections 9(a) and 9(b), then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of the loss, claim, damage, liability or expense for which it is entitled
to indemnification in such proportion as is appropriate to reflect not only the
relative
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benefits received by the indemnifying party and the indemnified party, but also
the relative fault of the indemnifying party and the indemnified party, as well
as any other relevant equitable considerations. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentations.
10. Rule 144. TeraComm shall use its reasonable best efforts to make
publicly available and available to the Holders, pursuant to Rule 144, such
information as is necessary to enable the Holders to make sales of Registrable
Securities pursuant to that Rule. TeraComm shall use its reasonable best efforts
to file timely with the SEC all documents and reports required of TeraComm under
the Exchange Act. TeraComm shall furnish to any Holder, upon request, a written
statement executed on behalf of TeraComm as to compliance with the current
public information requirements of Rule 144.
11. Amendments and Waivers. The provisions of this agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, without the written consent of TeraComm
and Holders of a majority of the Registrable Securities.
12. Notices. Every notice or other communication required or
contemplated by this agreement must be in writing and sent by one of the
following methods: (1) personal delivery, in which case delivery is deemed to
occur the day of delivery; (2) certified or registered mail, postage prepaid,
return receipt requested, in which case delivery is deemed to occur the day it
is officially recorded as delivered to the intended recipient; or (3) next-day
delivery by a recognized overnight delivery service such as Federal Express, in
which case delivery is deemed to occur one business day after being sent. In
each case, a notice or other communication sent to a party must be directed to
the address for that party set forth below, or to another address designated by
that party by written notice:
If to a Holder, at the most current address for that Holder as it
appears on the books of TeraComm; and
If to TeraComm, to:
TeraComm Research, Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
with a copy to:
Ireland, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
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▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Esq.
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13. Successors and Assigns. This agreement inures to the benefit of and
is binding upon the successors, transferees and assigns of the parties hereto,
except that (1) no transferee in any transfer made in reliance on Rule 144 under
the Securities Act will have any rights as a Holder under this agreement, and
(2) no Person to whom Registrable Securities are transferred will have any
rights under this agreement as a Holder unless that Person agrees to be bound by
the terms and conditions of this agreement.
14. Governing Law. This agreement is governed by the laws of the State
of New York, without giving effect to principles of conflict of laws.
15. Jurisdiction; Service of Process. Any action or proceeding seeking
to enforce any provision of, or based on any right arising out of, this
agreement may be brought against any of the parties in the courts of the State
of New York, or, if it has or can acquire jurisdiction, in the United States
District Court for the Southern District of New York, and each of the parties
consents to the jurisdiction of those courts (and of the appropriate appellate
courts) in any such action or proceeding and waives any objection to venue laid
therein. Process in any such action or proceeding may be served by sending or
delivering a copy of the process to the party to be served at the address and in
the manner provided for the giving of notices in Section 12. Nothing in this
Section 15, however, affects the right of any party to serve legal process in
any other manner permitted by law.
16. Entire Agreement. This agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersede all
prior agreements, understandings, negotiations and discussions, whether oral or
written, of the parties.
Atlantic and TeraComm are executing this agreement on the date stated
in the introductory clause.
TERACOMM RESEARCH, INC.
By:____________________________________
▇▇▇▇▇▇▇ ▇. PuzeyPresident
ATLANTIC TECHNOLOGY VENTURES, INC.
By:____________________________________
A. ▇▇▇▇▇▇ ▇▇▇▇▇▇
President
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