REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "Agreement") is entered into as of
October 1, 1997 by Rocky Mountain Internet, Inc., a Delaware corporation
("RMII"), and Xxxxxxx X. Xxxxxx (the "Shareholder").
Recitals
RMII and the Shareholder have entered into a Stock Purchase Agreement, of
even date herewith, pursuant to which, among other things, RMII agreed to issue
to the Shareholder 1,225,000 shares (the "Shares") of its common stock, $0.001
par value per share ("Common Stock") and to enter into a Warrant Agreement
pursuant to which RMII will agree to issue to the Shareholder warrants to
purchase 4,000,000 additional shares of Common Stock, subject to adjustment (the
"Warrants"). The Shareholder also has entered into separate stock purchase
agreements (the "Insider Stock Purchase Agreements") with four current
shareholders of RMII pursuant to which the Shareholder has agreed to purchase an
aggregate of 275,000 shares of Common Stock from said shareholders (the "Insider
Shares").
The Shares, the Warrants, the shares of Common Stock underlying the
Warrants, and the Insider Shares have not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), or the securities laws of any
state.
In consideration of the purchase of the Shares and the Warrants and to
induce the Shareholder to enter into the Stock Purchase Agreement, RMII has
agreed to undertake to register the Registrable Securities, as hereinafter
defined, under the Securities Act and applicable state securities laws.
Agreement
1. REGISTRATION OF REGISTRABLE SECURITIES BY RMII.
(a) Not later than 30 days after the closing of the transactions
contemplated by the Stock Purchase Agreement, RMII will use its commercially
reasonable best efforts ("Best Efforts") to prepare and file a registration
statement on Form S-1, or on any other form for the general registration of
securities to be resold for cash (together with all exhibits and financial
statements and schedules filed therewith and documents incorporated by reference
therein, a "Registration Statement") with the Securities and Exchange Commission
(the "Commission") to cover the Shares, the Warrants, the shares of Common Stock
underlying the Warrants, and the Insider Shares, together with any other shares
of capital stock of RMII issued or issuable in respect of such securities as a
result of stock splits, stock dividends, reclassification, recapitalizations,
mergers, consolidations, or similar events (collectively, the "Registrable
Securities").
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(b) RMII will use its Best Efforts to cause the Registration
Statement to become effective and to effect the registration of the Registrable
Securities under the Securities Act such that the Registrable Securities may be
offered and sold by the Shareholder on a delayed or continuous basis in
accordance with Rule 415 under the Securities Act. In connection with the
preparation and filing of the Registration Statement and any amendments or
supplements thereto, RMII will furnish to the Shareholder copies of all
documents proposed to be filed, which documents will be subject to the
Shareholder's review and reasonable approval with respect to any information
contained therein concerning the Shareholder.
(c) RMII will pay all expenses of the registration incurred by RMII,
including without limitation legal and accounting fees and disbursements, blue
sky fees and expenses, printing costs and related expenses arising out of the
preparation, filing, amending and supplementing of the Registration Statement
and any prospectus a part thereof, and not including fees and disbursements of
counsel, accountants and other advisors for the Shareholder and underwriting
commissions and discounts, brokerage commissions, agents fees and transfer taxes
relating to the offer and sale of the Registrable Securities.
2. REGISTRATION OF REGISTRABLE SECURITIES IN UNDERWRITTEN OFFERING. RMII
agrees that, at the option of the Shareholder and upon receipt of written notice
from the Shareholder as hereinafter required, it will include the Registrable
Securities in any underwritten public offering of RMII equity securities for
which a registration statement is filed within one year after the close of the
transactions contemplated by the Stock Purchase Agreement and the Warrant
Agreement. RMII will provide the Shareholder with at least 30 business days'
written notice prior to the filing of a Registration Statement relating to any
such underwritten offering. The Shareholder shall have 20 business days from
the receipt of such notice from RMII within which to notify RMII in writing of
an election to participate in the underwritten offering. If the Shareholder
does not notify RMII of such election within such period, RMII shall have no
further obligation to the Shareholder under this Section 2. Such inclusion
shall be prior to the inclusion of any shares of RMII Common Stock held by any
person other than the Shareholder and other than shareholders who received
rights to register their shares of Common Stock prior to the date of this
Agreement; provided, if, in the written opinion of the managing underwriter or
underwriters, if any, for such offering, the inclusion of the Registrable
Securities, when added to the securities being registered by RMII or the selling
stockholder(s), will exceed the maximum amount of RMII's securities that can be
marketed (i) at a price reasonably related to their then current market value,
or (ii) without materially and adversely affecting the entire offering, RMII
shall nevertheless register all or any portion of the Registrable Securities
required to be so registered but such securities shall not be sold by the
Shareholder until such time after the offering has become effective as shall be
agreed by and between the Shareholder and the managing underwriter or
underwriters; provided further that, if any securities are registered for sale
on behalf of other stockholders in such offering and such stockholders have not
agreed to defer such sale until the expiration of such delay period, the number
of securities to be sold by all stockholders in such public offering during such
delay period shall be apportioned PRO RATA among all such selling shareholders,
including the Shareholder, according to the total number of securities of RMII
owned by said selling stockholders, including the Shareholder. Nothing in this
Agreement shall diminish or otherwise adversely affect the rights of any
shareholder or any
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other person who holds rights with respect to RMII's Common Stock under any
existing contract or other arrangement.
3. POSTPONEMENT OF REGISTRATION UNDER CERTAIN CIRCUMSTANCES. RMII shall
be entitled to postpone for a reasonable period of time, not to exceed 90 days
after providing notice to the Shareholder thereof, the filing of any
Registration Statement under Section 1, if (i) at any time prior to the filing
of such Registration Statement RMII determines, in its reasonable business
judgment, that such registration and offering could interfere with or otherwise
adversely affect any financing, acquisition, corporate reorganization, or other
material transaction or development involving RMII or any of its subsidiaries or
require RMII to disclose matters that otherwise would not be required to be
disclosed at such time and (ii) RMII gives the Shareholder written notice of
such postponement.
4. REGISTRATION PROCEDURES.
(a) Subject to the provisions of Section 3, in connection with the
registration of the Registrable Securities, RMII will, as expeditiously as
possible:
(i) subject to Section 4(b), prepare and file with the
Commission such amendments and supplements to the Registration Statement and the
prospectus a part thereof (a "Prospectus," which term shall for all purposes of
this Agreement include any amendments or supplements to such Prospectus) as are
necessary to maintain the effectiveness of such Registration Statement and to
comply with the provisions of the Securities Act and the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), with respect to the disposition of the
Registrable Securities until all of the Registrable Securities have been
disposed of in accordance with the intended methods of disposition of the
Shareholder, as set forth in the Registration Statement, or until counsel for
RMII has in writing advised RMII and the Shareholder that such counsel is of the
opinion that the Shareholder has no further obligation to comply with the
registration requirements of the Securities Act or to deliver a Prospectus
meeting the requirements of Section 10(a) of the Securities Act in connection
with further sales of Registrable Securities by the Shareholder, but in no event
shall RMII be required to maintain the effectiveness of any Registration
Statement for a period of more than one year after the effective date thereof;
(ii) furnish to the Shareholder two conformed copies of each
Registration Statement and of each related amendment and supplement and in each
case including all exhibits, a number of copies of the related Prospectus
(including any related preliminary prospectus and summary prospectus), in
conformity with the requirements of the Securities Act, and such other documents
as the Shareholder reasonably requests to facilitate the disposition of the
Registrable Securities;
(iii) use its best reasonable efforts to register or qualify
the Registrable Securities under the securities or blue sky laws of those
jurisdictions within the United States which the Shareholder reasonably
requests, provided that RMII reserves the right, in its sole discretion, not to
register or qualify the Registrable Securities in any jurisdiction where the
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Registrable Securities do not meet such jurisdiction's requirements for
registration or qualification or where RMII would be required to consent to
service of process;
(iv) notify the Shareholder promptly (A) when a Registration
Statement becomes effective; and (B) at any time when a Prospectus is required
to be delivered under the Securities Act, of (I) the happening of any event as a
result of which such Prospectus, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements made, in the light of the
circumstances then existing, not misleading; (in which event RMII, at the
request of the Shareholder, shall prepare, file with the Commission and furnish
to the Shareholder a reasonable number of copies of a supplement to or an
amendment of such Prospectus, so that, as thereafter delivered to the purchasers
of such Registrable Securities, such Prospectus does not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements made, in the light of the
circumstances then existing, not misleading), (II) any request by the Commission
for any amendment of or supplement to a Registration Statement or any Prospectus
relating thereto or for additional information, (III) the issuance by the
Commission of a stop order suspending the effectiveness of a Registration
Statement or the initiation of proceedings for such purpose, and (IV) the
receipt by RMII of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation of proceedings for
such purpose; and
(v) use its best reasonable efforts to list the Registrable
Securities on the automated quotation system and/or securities exchanges upon
which RMII's Common Stock is listed generally.
(b) Notwithstanding any provision contained herein to the contrary,
if at any time after the filing of a Registration Statement or after it is
declared effective by the Commission, RMII determines, in its reasonable
business judgment, that such registration and offering could interfere with or
otherwise adversely affect any financing, acquisition, corporate reorganization,
or other material transaction or development involving RMII or any of its
subsidiaries or require RMII to disclose matters that otherwise would not be
required to be disclosed at such time, then RMII may require the suspension by
the Shareholder of the distribution of the Registrable Securities by giving
written notice to the Shareholder of such circumstance. In the event such
notice is given, then until RMII has determined, in its reasonable business
judgment, that such registration and offering would no longer interfere with the
matters described in the preceding sentence and has given written notice thereof
to the Shareholder, RMII's obligations under Section 1, if the Registration
Statement has not been declared effective, or under Section 4(a)(i), if the
Registration Statement has become effective, will be suspended. In the event of
a suspension pursuant to this Section 4(b) after a Registration Statement has
been declared effective, the applicable period of effectiveness of such
Registration Statement referred to in Section 4(a)(i) will be extended by a
number of days equal to the total number of days for which the distribution of
Registrable Securities included in such Registration Statement has been
suspended pursuant to this Section 4(b).
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5. CONDITIONS TO REGISTRATION. The Shareholder's right to have
Registrable Securities included in a Registration Statement shall be subject to
the following conditions or limitations:
(a) The Shareholder shall furnish RMII in a timely manner with all
information required by the applicable rules and regulations of the Commission,
including without limitation the proposed method of sale or other disposition of
the Registrable Shares, the identity of and compensation to be paid to any
person to be employed in connection therewith, and all other information as RMII
may reasonably require;
(b) In the event that the Shareholder desires to sell and distribute
Registrable Securities over a period of time, or from time to time, at then
prevailing market prices, the Shareholder shall execute and deliver to RMII
those written undertakings which RMII and its counsel may reasonably require in
order to assure full compliance with relevant provisions of the Securities Act
and the Exchange Act;
(c) Upon the written request of RMII and the managing underwriter or
underwriters, if any, of an underwritten offering of equity securities or debt
securities convertible into equity securities of RMII, the Shareholder shall not
sell publicly or otherwise transfer or dispose of any Registrable Securities or
other equity securities of RMII held by the Shareholder during the period
starting up to 45 days prior to RMII s good faith estimate of the date of filing
with the Commission of, and ending on a date up to 60 days (or up to 90 days if
so requested by the managing underwriter or underwriters) after the effective
date of, a registration statement relating thereto, provided that RMII is
actively employing in good faith all reasonable efforts to cause such
registration statement to become effective;
(d) To the extent that any Registrable Securities are included in an
underwritten offering, the Shareholder shall execute an underwriting agreement
containing customary terms including, without limitation, indemnification
provisions, and such other agreements as may be reasonably requested by RMII and
the managing underwriter or the underwriters; and
(e) Upon written notice from RMII of the occurrence of any of the
events specified in clause (B) of Section 4(a)(iv) or that, as set forth in
Section 4(b), the suspension by the Shareholder of the distribution of any of
the Registrable Securities is required, then the Shareholder shall cease
offering or distributing the Registrable Securities until such time as RMII
shall notify the Shareholder in writing that offering and distribution of the
Registrable Securities may recommence.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY RMII. RMII will, to the extent permitted by
law, indemnify and hold harmless the Shareholder, each other person, if any, who
participates as an underwriter, broker or dealer in the offering or sale of the
Registrable Securities by the Shareholder, and each other person, if any, who
controls any such participating person within the meaning of the Securities Act,
against any losses, claims, demands, damages or liabilities, joint
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or several, to which such indemnified person may become subject under the
Securities Act or otherwise, insofar as the losses, claims, demands, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (a) any untrue statement or alleged untrue statement of any material
fact contained or incorporated by reference in a Registration Statement, a
Prospectus or a preliminary or summary prospectus contained therein, any
amendment or supplement thereto, or any document (or part thereof) incorporated
by reference therein, or (b) the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading; and RMII will reimburse each indemnified person for all
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, demand, damage, liability,
action or proceeding, except that RMII will not be liable in any such case to
the extent that the loss, claim, demand, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made or incorporated by reference in such Registration
Statement, Prospectus or preliminary or summary prospectus, amendment or
supplement in reliance upon and in conformity with information furnished to RMII
by or on behalf of the Shareholder or the indemnified person. This indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of an indemnified person and shall survive the transfer of Registrable
Securities by the Shareholder.
(b) INDEMNIFICATION BY SHAREHOLDER. The Shareholder will, to the
extent permitted by law, indemnify and hold harmless RMII, each director of
RMII, each officer of RMII who signs a Registration Statement, and each other
person, if any, who controls RMII, against any losses, claims, demands, damages
or liabilities, joint or several, to which RMII or such director, officer or
controlling person may become subject under the Securities Act or otherwise,
insofar as the losses, claims, demands, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of any material fact contained or
incorporated by reference in a Registration Statement, Prospectus or preliminary
or summary prospectus contained therein, any amendment or supplement thereto, or
any document (or part thereof) incorporated by reference therein, or (b) 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, which
untrue statement or alleged untrue statement or omission or alleged omission has
been made or incorporated therein in reliance upon and in conformity with
information furnished to RMII by or on behalf of the Shareholder. The
Shareholder will reimburse RMII and each director, officer and controlling
person for all legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, demand, damage, liability,
action or proceeding. This indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of RMII or such director,
officer or controlling person and shall survive the transfer of Registrable
Securities by the Shareholder.
(c) NOTICES OF CLAIMS. Promptly after receipt by an indemnified
party of a demand or notice of the commencement of any action or proceeding
involving losses, claims, demands, damages or liabilities referred to in Section
6(a) or 6(b) (each, an "Indemnified Claim"), the indemnified party will, if a
claim for indemnification is to be made against an indemnifying party, give
written notice to the indemnifying party of the Indemnified Claim;
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provided that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under Section
6(a) or 6(b), except to the extent that the indemnifying party is materially
prejudiced by the failure to give notice. Unless in the reasonable judgment of
counsel for an indemnifying party a conflict of interest exists between such
indemnifying party and the indemnified party or parties with respect to the
Indemnified Claim, each indemnified party agrees to permit the indemnifying
party to assume the defense of the Indemnified Claim with counsel reasonably
satisfactory to the indemnified party or parties. If the indemnifying party is
not entitled to, or elects not to, assume the defense of an Indemnified Claim,
it will not be obligated to pay the fees and expenses of more than one counsel
for such indemnified party or parties with respect to the Indemnified Claim. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term the giving by the
claimant or plaintiff to the indemnified party of a release from all liability
in respect of the Indemnified Claim.
(d) CONTRIBUTION. If the indemnification provided for in Section
6(a) or 6(b) from the indemnifying party is unavailable to an indemnified party
in respect of any losses, claims, demands, damages or liabilities referred to
therein, then each indemnifying party, in lieu of indemnifying the indemnified
party, shall contribute to the amount paid or payable by each indemnified party
as a result of such losses, claims, demands, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of such indemnifying
party on the one hand and of the indemnified party or parties on the other 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 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 or alleged 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.
The parties agree that it would not be just and equitable if contribution
pursuant to this Section 6 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. No person
liable for fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not liable for such fraudulent misrepresentation.
(e) JURISDICTION; SERVICE OF PROCESS. Any action or proceeding by
either party seeking to enforce any provision of, or based on any right arising
out of, this Agreement may be brought against the other party in the courts of
the State of Colorado, City and County of Denver, or, if it has or can acquire
jurisdiction, in the United States District Court for the District of Colorado,
and each of the parties consents to the jurisdiction of such courts (and of the
appropriate appellate courts) in any such action or proceeding and waives any
objection to venue laid therein. Process in any action or proceeding referred
to in the preceding sentence may be served on any party anywhere in the world.
Each party agrees that a final judgment in any action
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or proceeding so brought shall be conclusive and may be enforced by suit on the
judgment or in any other manner provided by law or at equity.
7. EXPENSES. Except as otherwise specifically provided in this Agreement,
each party shall pay his or its own expenses incident to the performance or
enforcement of this Agreement, including all fees and expenses of his or its
counsel for all activities of counsel undertaken pursuant to this Agreement.
8. NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by registered or certified
mail, postage prepaid, sent by telecopier, or otherwise delivered by hand or by
a nationally-recognized overnight courier, addressed (a) if to the Purchaser, at
the Purchaser's address or telecopier number set forth below, or at such other
address or telecopier number as the Purchaser shall have furnished to the
Company in writing, or (b) if to the Company, one copy should be sent to its
address or telecopier number set forth below and addressed to the attention of
the Corporate Secretary, or at such other address or telecopier number as the
Company shall have furnished to the Purchaser. Such notices and communications
shall be sent or delivered as follows:
If to RMII, to: Rocky Mountain Internet, Inc.
0000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
telephone: 303/000-0000
telecopy 303/672-0711
With a Copy to:
Xxxxxx Xxxxx, Esq.
Xxxxxxx & Xxxxxx, L.L.C.
000 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
telephone: 303/000-0000
telecopy: 303/298-0940
If to the Shareholder, to: Xxxxxxx X. Xxxxxx
0000 Xxxx Xxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
telephone: 303/000-0000
telecopy: 303/777-4314
With a Copy to:
Xxx X. Xxxxx, Esq.
Minor & Xxxxx, P.C.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
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Xxxxxx, Xxxxxxxx 00000
telephone: 303/000-0000
telecopy: 303/320-6330
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given (x) in the case of
personal delivery or delivery by telecopier, on the date of such delivery and
verified, in the case of telecopier transmission, by confirmation of such
transmission, (y) in the case of a nationally-recognized overnight courier, on
the day such delivery is confirmed by such courier or by the recipient, and (z)
in the case of mailing, on the third business day following that on which the
piece of mail containing such communication has been deposited in a regularly
maintained receptacle for the deposit of the United States mail, addressed and
mailed as aforesaid.
Any notice shall be deemed to be given when so mailed. Any notice so sent
by rapid transmission shall be deemed to be given when transmitted, if such
transmission is confirmed by mailing (by first class or express mail, postage
prepaid) written confirmation at substantially the same time as the rapid
transmissions and any communication so delivered in person shall be deemed to be
given when receipted for by, or actually received by, the party (or its agent)
to whom it is given.
9. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties with respect to its subject matter and supersedes all prior
agreements and understandings between them as to its subject matter.
10. WAIVERS AND FURTHER AGREEMENTS. A waiver of any of the terms or
conditions of this Agreement shall be in writing and shall not operate as a
waiver of any other breach of such terms or conditions or any other term or
condition, nor shall any failure to enforce any provision hereof operate as a
waiver of such provision or of any other provision. No such written waiver
shall be construed to effect a continuing waiver of the provision being waived,
unless it specifically provides to the contrary, and no such waiver in any
instance shall constitute a waiver in any other instance or for any other
purpose or impair the right of the party against whom such waiver is claimed in
all other instances or for all other purposes to require full compliance with
such provision. Each of the parties agrees to execute all further instruments
and documents and to take all further action as the other parties may reasonably
require in order to effectuate the purposes and intent of this Agreement.
11. AMENDMENTS. This Agreement may not be amended nor shall any waiver,
change, modification, consent or discharge be effected except by an instrument
in writing executed by or on behalf of the party or parties against whom
enforcement of any amendment, waiver, change, modification, consent or discharge
is sought.
12. ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement and the rights
provided hereunder shall be binding upon and shall inure to the benefit of the
parties and their respective assigns, successors, heirs, executors and legal
representatives.
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13. RESTRICTIONS ON TRANSFER OF REGISTRABLE SECURITIES. The Shareholder
acknowledges that the Registrable Securities have not been registered under the
Securities Act or the securities laws of any jurisdiction and may not be sold or
transferred unless they are registered or RMII receives an opinion of counsel
reasonably satisfactory to RMII that an exemption from applicable registration
requirements is available. The certificates representing the Registrable
Securities will bear a restrictive legend to the foregoing effect until such
time as such Registrable Shares are the subject of an effective Registration
Statement or until they are resold pursuant to a valid exemption from the
registration requirements of the Securities Act and other applicable laws. The
Shareholder agrees not to sell or otherwise transfer any Registrable Securities
except in compliance with the Securities Act and other applicable laws and the
provisions hereof. The Shareholder may pledge his Registrable Securities,
provided the pledgee agrees in writing not to sell or otherwise transfer pledged
Registrable Securities except in compliance with the Securities Act and other
applicable laws.
14. SEVERABILITY. Except as provided in Section 6(d), which shall not be
severable from this Agreement, if any provision of this Agreement is held or
deemed to be, or in fact is, invalid, inoperative or unenforceable for any
reason, this Agreement shall be construed as though such invalid, inoperative or
unenforceable provision had never been contained in this Agreement.
15. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Colorado, regardless of the
laws which might otherwise be applicable under principles of conflicts of law.
16. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed in
two or more counterparts, each of which need not be executed by each of the
parties and each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The parties hereby
acknowledge and agree that execution of a facsimile copy of this Agreement by
either party and delivery of a copy this Agreement bearing the facsimile
signature of either party shall constitute the valid and binding execution and
delivery of this Agreement, and facsimile copies of this Agreement bearing the
facsimile signature of either party shall constitute an original document
enforceable against such party.
17. SECTION HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SHAREHOLDER
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
COMPANY
Rocky Mountain Internet, Inc., a Delaware corporation
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Xxxxx X. Xxxxx
Title: Executive Vice President
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