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EXHIBIT 4.4
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement") is executed effective as of
October 27, 1997, by and among XXX XXXXXXXXX ("Purchaser") and GLOBENET
INTERNATIONAL I, INC., a Delaware corporation (the "Corporation").
W I T N E S S E T H.
WHEREAS, the Corporation desires to sell and Purchaser desires to
purchase (a) One Million (1,000,000) shares (the "Shares") of the $.001 par
value common stock ("Common Stock") of the Corporation pursuant to the terms and
conditions set forth in this Agreement; and
WHEREAS, the Corporation desires to sell and Purchaser desires to
purchase warrants in the form attached hereto as Exhibit "A" and incorporated
herein by reference (the "Warrants") to purchase One Million (1,000,000) shares
of the Common Stock of the Corporation pursuant to the terms and conditions set
forth in this Agreement.
NOW THEREFORE, in consideration of the premises, the mutual covenants
and agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties covenant
and agree as follows:
1. Sale and Purchase of the Shares and the Warrants. The Corporation
hereby agrees to sell and issue to Purchaser the Shares and the Warrants, and
Purchaser agrees to purchase such Shares and Warrants on the terms and
conditions set forth herein.
2. Purchase Price and Payment. The purchase price (the "Purchase
Price") which Purchaser agrees to pay to the Corporation for the Shares and
Warrants is an aggregate purchase price of One Million Two Hundred and Fifty
Thousand Dollars ($1,250,000.00) at the Closing (as defined below). The Purchase
Price shall be paid as follows:
(a) The payment of One Million Dollars ($1,000,000.00) by cashiers's
check, wire transfer or other readily available funds to the Corporation at the
Closing; and
(b) Effective as of the Closing, the cancellation of that certain
promissory note in original principal amount of Two Hundred Fifty Thousand
Dollars ($250,000.00) payable by Royal Bodycare, Inc., a subsidiary of the
Corporation, to the order of Purchaser dated November 18, 1994 (the "Note").
3. Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place on such date on or before October 29,
1997, as determined by Purchaser upon notice to the Corporation. At the Closing
the Corporation shall deliver to Purchaser a certificate representing the Shares
(or if the Certificate is not available at Closing, then the Certificate shall
be delivered as soon as practicable after Closing) and the Warrants in the form
attached hereto as Exhibit "A", and Purchaser shall deliver to the Corporation
the cash portion of the Purchase Price, and Purchaser shall surrender the
original Note to the Corporation for cancellation.
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4. Representations and Warranties of the Corporation. The Corporation
represents, warrants, and covenants to purchaser as follows:
(a) The Corporation is a corporation duly organized, validly
existing and in good standing under the laws of the state of Delaware,
and has all requisite corporate power and authority to execute and
deliver this Agreement and to carry out the provisions of this
Agreement.
(b) All corporate action on the part of the Corporation
necessary for the authorization, execution and delivery of this
Agreement, the performance of the all obligations of the Corporation
hereunder and the authorization, issuance of delivery of the Shares have
been taken, and this Agreement, when executed and delivered, will
constitute valid and legally binding obligation of the Corporation,
enforceable in accordance with its terms, except as limited by
applicable bankruptcy, insolvency, reorganization, moratorium and other
laws of general application affecting creditor's rights generally, and
as limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
(c) The Shares when sold and issued in accordance with the
terms of this Agreement will be duly and validly issued, fully paid and
nonassessable.
(d) As of the date hereof, the Corporation has 50,000,000
shares of Common Stock authorized, of which 12,261,627 are issued and
outstanding.
5. Representations and Warranties of Purchaser. Purchaser represents,
warrants and covenants to the Corporation as follows:
(a) Purchaser has the full power and authority to make and
enter into this Agreement.
(b) There is no agreement or understanding of any sort which
prohibits Purchaser from entering into or carrying out this Agreement.
(c) Purchaser (i) is acquiring the Shares and Warrants for his
own account for investment, not as nominee or agent, and not with a
view to or for sale in connection with any distribution or any part
thereof and (ii) has no present intention of selling, granting
participation in, or otherwise distributing the same. Purchaser
understands that the Shares have not been registered under the
Securities Act of 1933, as amended (the "Securities Act") by reason of
the reliance by the Corporation on exemptions from the registration
requirement of the Securities Act pursuant to Section 4(2) thereof or
under any "Blue Sky" law of any state by reason of the reliance by the
Corporation on exemptions thereunder, and that the Corporation's
reliance is predicated in part on Purchaser's
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representations set forth herein. By reason of his business and
financial experience, purchaser has the capacity to protect his own
interests in connection with the transactions contemplated hereby and
is able to bear the economic risk thereof.
(d) Purchaser is an accredited investor as such term is
defined in Regulation D.
(e) Purchaser acknowledges that he has been given an
opportunity to examine such instruments, documents and other
information relating to the Corporation as he has deemed necessary or
advisable in order to make an informed decision relating to his
purchase of the Shares and the Warrants, that he has been afforded an
opportunity to ask questions and to obtain any additional information
necessary in order to verify the accuracy of the information furnished
and that he has in fact, asked all such questions and reviewed all such
instruments, documents and other information as he deems necessary
under the circumstances.
(f) Purchaser understands that the Shares and Warrants (and
any Common Stock issued on exercise thereof) may not be sold,
transferred, or otherwise disposed of without registration under
applicable securities laws or an exemption therefrom, and that in the
absence of an effective registration statement covering the Shares and
the Warrants (or the Common Stock issued on exercise thereof) or an
available exemption from registration under applicable securities laws,
the Shares and Warrants (and any Common Stock issued on exercise
thereof) must be held indefinitely.
(g) To the extent applicable, each certificate or other
document evidencing any of the Shares and the Warrants or any Common
Stock issued upon exercise thereof shall be endorsed with the legend
set forth below:
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD.
TRANSFERRED, ASSIGNED, PLEDGED, OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER SUCH ACT, OR UNLESS THE COMPANY HAS
RECEIVED AN OPINION OF COUNSEL OR OTHER EVIDENCE, SATISFACTORY
TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT
REQUIRED.
(h) The Corporation shall be obligated to reissue promptly
unlegended certificates at the request of any holder thereof if the
holder shall have obtained an opinion of counsel at such holder's
expense (which counsel may be counsel for the Corporation) reasonably
acceptable to the Corporation to the effect that the securities
proposed to be disposed of may lawfully be so disposed of without
registration, qualification or legend.
6. The corporation's conditions Precedent. The obligations of the
Corporation hereunder are subject to the representations and warranties of
Purchaser contained herein being true and correct as of Closing.
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7. Purchaser's Conditions Precedent. The obligations of Purchaser
hereunder are subject to the representations and warranties of the Corporation
contained herein being true and correct as of Closing.
8. Registration Rights.
(a) Certain Definitions. As used in this Paragraph 8, the following
terms shall have the meanings set forth below:
(i) "Commission" shall mean the Securities and Exchange
commission or any other federal agency at the time administering the
Securities Act.
(ii) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any similar successor federal statute and the
rules and regulations thereunder, all as the same shall be in effect
from time to time.
(iii) "Holder" shall mean the Purchaser and any holder of
Registrable Securities to whom the registration rights conferred by
this Agreement have been transferred in compliance with Paragraph
8(h) hereof.
(iv) "Initiating Holders" shall mean any Holder or Holders who
in the aggregate hold not less than fifty percent (50%) of the
outstanding Registrable Securities.
(v) "Other Stockholders" shall mean persons other than Holders
who, by virtue of agreements with the Corporation, are entitled to
include their securities in certain registrations hereunder.
(vi) "Registrable Securities" shall mean (A) the Shares, (B)
shares of Common Stock issued or issuable pursuant to the exercise
of the Warrants and (C) any Common Stock issued as a dividend or
other distribution with respect to or in exchange for or in
replacement of the shares referenced in (A) or (B) above, provided,
however, that Registrable Securities shall not include any shares of
Common Stock which have previously been registered or which have
been sold to the public either pursuant to a registration statement
or Rule 144, or which have been sold in a private transaction in
which the transferor's rights under this Agreement are not assigned.
(vii) The terms "register," "registered" and "registration"
shall refer to a registration effected by preparing and filing a
registration statement in compliance with the Securities Act and
applicable rules and regulations thereunder, and the declaration or
ordering of the effectiveness of such registration statement.
(viii) "Registration Expenses" shall mean all expenses incurred
in effecting any registration pursuant to this Agreement, including,
without limitation,
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all registration, qualification, and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Corporation,
blue sky fees and expenses, and expenses of any regular or special
audits incident to or required by any such registration, but shall
not include Selling Expenses, fees and disbursements of counsel for
the Holders or the compensation of regular employees of the
Corporation, which compensation shall be paid in any event by the
Corporation.
(ix) "Restricted Securities" shall mean any Registrable
Securities required to bear the legend set forth in Paragraph 5(g)
hereof.
(x) "Rule 144" shall mean Rule 144 as promulgated by the
Commission under the Securities Act, as such Rule may be amended
from time to time, or any similar successor rule that may be
promulgated by the Commission.
(xi) "Rule 145" shall mean Rule 145 as promulgated by the
Commission under the Securities Act, as such Rule nay be amended
from time to time, or any similar successor rule that may be
promulgated by the commission.
(xii) "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time
to time.
(xii) "Selling Expenses" shall mean all underwriting discounts,
selling commissions and stock transfer taxes applicable to the sale
of Registrable Securities.
(b) Requested Registration.
(i) Request for Registration. If the Corporation shall receive
from Initiating Holders at any time or times not later than five
(5) years after the date of this Agreement a written request that
the Corporation effect any registration with respect to all or a
part of the Registrable Securities having an aggregate offering
price, net of underwriting discounts and expenses, equal to or
exceeding $4.00 per share of Common Stock (as adjusted for any stock
dividends, combinations or splits with respect to such shares) and
the aggregate proceeds of which (after deduction for underwriter's
discounts and expenses related to the issuance) exceed $7,500,000,
the Corporation will:
(A) promptly give written notice of the proposed
registration to all other Holders; and
(B) as soon as practicable, use its best efforts to
effect such registration (including, without limitation,
filing post-effective amendments, appropriate qualifications
under applicable blue sky or other state securities laws, and
appropriate compliance with the
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Securities Act) and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable
Securities as are specified in such request, together with all
or such portion of the Registrable Securities of any Holder or
Holders joining in such request as are specified in a written
request received by the Corporation within twenty (20) days
after such written notice from the Corporation is mailed or
delivered.
The Corporation shall not be obligated to effect, or to take
any action to effect, any such registration pursuant to this
Paragraph 8(B):
(I) In any particular jurisdiction in which
the Corporation would be required to execute a
general consent to service of process in effecting
such registration, qualification, or compliance,
unless the Corporation is already subject to service
in such jurisdiction and except as may be required by
the Securities Act;
(II) After the Corporation has initiated two
such registrations pursuant to this Paragraph 8(b);
(III) During the period starting with the
date sixty (60) days prior to the Corporation's good
faith estimate of the date of filing of, and ending
on a date one hundred eighty (180) days after the
effective date of, a Corporation-initiated
registration; provided that the Corporation is
actively employing in good faith all reasonable
efforts to cause such registration statement to
become effective;
(IV) If the Initiating Holders propose to
dispose of shares of Registrable Securities which may
be immediately registered on Form S-3 pursuant to a
request made under Paragraph 8(c) hereof;
(V) If the Initiating Holders do not request
that such offering be firmly underwritten by
underwriters selected by the Initiating Holders
(subject to the consent of the Corporation, which
consent will not be unreasonably withheld); or
(VI) If the Corporation and the Initiating
Holders are unable to obtain the commitment of the
underwriter described in clause (V) above to firmly
underwrite the offer.
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(ii) Subject to the foregoing clauses (I) through (VI), the
Corporation shall file a registration statement covering the
Registrable Securities so requested to be registered as soon as
practicable after receipt of the request or requests of the
Initiating Holders; provided, however, that if (A) in the good faith
judgment of the Board of Directors of the Corporation, such
registration would be seriously detrimental to the Corporation and
the Board of Directors of the Corporation concludes, as a result,
that it is essential to defer the filing of such registration
statement at such time, and (B) the Corporation shall furnish to
such Holders a certificate signed by the President of the
Corporation stating that in the good faith judgment of the Board of
Directors of the Corporation, it would be seriously detrimental to
the Corporation for such registration statement to be filed in the
near future and that it is, therefore, essential to defer the filing
of such registration statement, then the Corporation shall have the
right to defer such filing (except as provided in clause (III)
above) for a period of not more than one hundred eighty (180) days
after receipt of the request of the Initiating Holders, and,
provided further, that the Corporation shall not defer its
obligation in this manner more than twice in any twelve-month
period.
(iii) Underwriting. The right of any Holder to registration
pursuant to Paragraph 8(b) shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless
otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder with respect to such
participation and inclusion) to the extent provided herein. A Holder
may elect to include in such underwriting all or a part of the
Registrable Securities he holds.
(c) Registration on Form S-3.
(i) The Corporation shall use its best efforts to qualify for
registration on Form S-3 or any comparable or successor form or
forms. After the Corporation has qualified for the use of the Form
S-3, in addition to the rights contained in the foregoing provisions
of this Paragraph 8, the Holders of Registrable Securities shall
have the right to request registrations on Form S-3 (such requests
shall be in writing and shall state the number of shares of
Registrable Securities to be disposed of and the intended methods of
disposition of such shares by such Holder or Holders), provided,
however, that the Corporation shall not be obligated to effect any
such registration if (A) the Holders, together with the holders of
any other securities of the Corporation entitled to inclusion in
such registration, propose to sell Registrable Securities and such
other securities (if any) on Form S-3 at an aggregate price to the
public of less than $1,000,000, or (B) in the event that the
Corporation shall furnish the certification described in Paragraph
8(b)(i)(B) (but subject to the limitations set forth therein) or (C)
in a given twelve-month period, the Corporation has effected one (1)
such registration in such period or (D) it is to be effected more
than five (5) years after the date of this Agreement.
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(ii) If a request complying with the requirements of Paragraph
8(c) hereof is delivered to the Corporation, the provisions of
Paragraphs 8(b)(i)(A) and (B) and 8(b)(ii) hereof shall apply to
such registration. If the registration is for an underwritten
offering, the provisions of Paragraph 8(b)(iii) hereof shall apply
to such registration.
(d) Registration Procedures. In the case of each registration
effected by the Corporation pursuant to this Paragraph 8, the
Corporation will keep each Holder advised in writing as to the
initiation of each registration and as to the completion thereof. At
its expense, the Corporation will use its best efforts to:
(i) Keep such registration effective for a period of one hundred
twenty (120) days or until the Holder or Holders have completed the
distribution described in the registration statement relating
thereto, whichever first occurs; provided, however, that such
120-day period shall be extended for a period of time equal to the
period the Holder refrains from selling any securities included in
such registration at the request of an underwriter of Common Stock
(or other securities) of the Corporation;
(ii) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used
in connection with such registration statement as may be necessary
to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration
statement;
(iii) Furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the
prospectus, as a Holder from time to time may reasonably request;
(iv) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar
securities issued by the Corporation are then listed;
(v) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a
CUSIP number for all such Registrable Securities, in each case not
later than the effective date of such registration;
(vi) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Paragraph 8(b) hereof, the
Corporation will enter into an underwriting agreement in form
reasonably necessary to effect the offer and sale of Common Stock,
provided such underwriting agreement contains customary underwriting
provisions and provided further that if the underwriter so requests
the underwriting agreement will contain customary contribution
provisions.
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(e) Indemnification.
(i) The Corporation will indemnify each Holder, each of its
officers, directors and partners, legal counsel, and accountants and
each person controlling such Holder within the meaning of Section 15
of the Securities Act, with respect to which registration,
qualification, or compliance has been effected pursuant to this
Paragraph 8, and each underwriter, if any, and each person who
controls within the meaning of Section 15 of the Securities Act any
underwriter, against all expenses, claims, losses, damages, and
liabilities (or actions, proceedings, or settlements in respect
thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus,
offering circular, or other documents (including any related
registration statement, notification, or the like) 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 not misleading, or any violation by the Corporation of the
Securities Act or any rule or regulations thereunder applicable to
the Corporation and relating to action or inaction required of the
Corporation in connection with any such registration, qualification,
or compliance and will reimburse each such Holder, each of its
officers, directors, partners, legal counsel, and accountants and
each person controlling such Holder, each such underwriter, and each
person who controls any such underwriter, for any legal and any
other expenses reasonably incurred in connection with investigating
and defending or settling any such claim, loss, damage, liability,
or action, provided that the Corporation 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 based upon written information furnished to
the Corporation by such Holder or underwriter and stated to be
specifically for use therein. It is agreed that the indemnity
agreement contained in this Paragraph 8(e)(i) shall not apply to
amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the
consent of the Corporation (which consent has not been unreasonably
withheld).
(ii) Each Holder will, if Registrable Securities held by such
Holder are included in the securities as to which such registration,
qualification, or compliance is being effected, indemnify the
Corporation, each of its directors, officers, partners, legal
counsel, and accountants and each underwriter, if any, of the
Corporation's securities covered by such a registration statement,
each person who controls the Corporation or such underwriter within
the meaning of Section 15 of the Securities Act, each other such
Holder and Other Stockholder, and each of their officers, directors,
and partners, and each person controlling such Holder or Other
Stockholder, against all 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
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omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse the Corporation and such Holders, Other Stockholders,
directors, officers, partners, legal counsel, and accountants, 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 Corporation by such Holder and stated to be
specifically for use therein; provided, however, that the obligations
of such Holder hereunder shall not apply to amounts paid in settlement
of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of
such Holder (which consent shall not be unreasonably withheld); and
provided that in no event shall an indemnity under this Paragraph 8(e)
exceed the gross proceeds from the offering received by such Holder.
(iii) Each party entitled to indemnification under this
Paragraph 8(e) (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, and shall permit the Indemnifying Party
to assume the defense of such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such party's expense, and provided
further that the failure of any Indemnified Party to give notice as
provided herein shall not relieve the Indemnifying Party of its
obligations under this Paragraph 8, to the extent such failure is not
prejudicial. 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 that 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. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as
an Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and
litigation resulting therefrom.
(iv) If the indemnification provided for in this Paragraph
8(e) is held by a court of competent jurisdiction to be unavailable to
an Indemnified Party with respect to any loss, liability, claim,
damage, or expense referred to therein, then the Indemnifying Party, in
lieu of indemnifying such Indemnified Party hereunder, shall contribute
to the amount paid or payable by such Indemnified Party as a result of
such loss, liability, claim, damage, or expense in such proportion as
is appropriate to reflect the relative fault of the Indemnifying Party
on the one hand
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and of the Indemnified Party 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 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.
(v) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the
underwriting agreement entered into in connection with the underwritten
public offering are in conflict with the foregoing provisions, the
provisions in the underwriting agreement shall control.
(f) Information by Holder. Each Holder of Registrable Securities shall
furnish to the Corporation such information regarding such Holder and the
distribution proposed by such Holder as the Corporation may reasonably request
in writing and as shall be reasonably required in connection with any
registration, qualification, or compliance referred to in this Paragraph 8.
(g) Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission that may permit the sale of the
Restricted Securities to the public without registration, the Corporation agrees
to use its best efforts to:
(i) Make and keep public information regarding the Corporation
available as those terms are understood and defined in Rule 144 under
the Securities Act;
(ii) File with the Commission in a timely manner all reports
and other documents required of the Corporation under the Securities
Act and the Exchange Act at any time after it has become subject to
such reporting requirements;
(iii) So long as a Holder owns any Restricted Securities,
furnish to the Holder forthwith upon written request a written
statement by the Corporation 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
Corporation, and such other reports and documents so filed as a Holder
may reasonably request in availing itself of any rule or regulation of
the Commission allowing a Holder to sell any such securities without
registration.
(h) Transfer or Assignment of Registration Rights. The rights to cause
the Corporation to register securities granted to a Holder by the Corporation
under this Paragraph 8 may be transferred or assigned by a Holder only to a
transferee or assignee
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of not less than 250,000 shares of Registrable Securities (as presently
constituted and subject to subsequent adjustments for stock splits, stock
dividends, reverse stock splits, and the like), provided that the Corporation is
given written notice at the time of or within a reasonable time after said
transfer or assignment, stating the name and address of the transferee or
assignee and identifying the securities with respect to which such registration
rights are being transferred or assigned, and, provided further, that the
transferee or assignee of such rights assumes in writing the obligations of such
Holder under this Paragraph 8.
(i) "Market Stand-Off" Agreement. If requested by the Corporation and
an underwriter of Common Stock (or other securities) of the Corporation, a
Holder shall not sell or otherwise transfer or dispose of any Common Stock (or
other securities) of the Corporation held by such Holder (other than those
included in the registration) during the one hundred eighty (180) day period
following the effective date of a registration statement of the Corporation
filed under the Securities Act, provided that:
(i) such agreement shall only apply to the first such
registration statement of the Corporation, including securities to be
sold on its behalf to the public in an underwritten offering; and
(ii) all officers and directors of the Corporation and holders
of at least one percent (1%) of the Corporation's voting securities are
bound by and have entered into similar agreements.
The obligations described in this Paragraph 8(i) shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar form
that may be promulgated in the future. The Corporation may impose stop-transfer
instructions with respect to the shares of Common Stock (or other securities)
subject to the foregoing restriction until the end of said one hundred eighty
(180) day period.
(j) Allocation of Registration Opportunities. In any circumstance in
which all of the Registrable Securities and other shares of Common Stock of the
Corporation (including shares of Common Stock issued or issuable upon exercise
of the Warrants) with registration rights (the "Other Shares") requested to be
included in a registration on behalf of the Holders or other selling
stockholders cannot be so included as a result of limitations of the aggregate
number of shares of Registrable Securities and Other Shares that may be so
included, the number of shares of Registrable Securities and Other Shares that
may be so included shall be allocated among the Holders and other selling
stockholders requesting inclusion of shares pro rata on the basis of the number
of shares of Registrable Securities and Other Shares that would be held by such
Holders and other selling stockholders, assuming conversion; provided, however,
that such allocation shall not operate to reduce the aggregate number of
Registrable Securities and Other Shares to be included in such registration, if
any Holder or other selling stockholder does not request inclusion of the
STOCK PURCHASE AGREEMENT - Page 12
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maximum number of shares of Registrable Securities and Other Shares allocated to
him pursuant to the above-described procedure, the remaining portion of his
allocation shall be reallocated among those requesting Holders and other selling
stockholders whose allocations did not satisfy their requests pro rata on the
basis of the number of shares of Registrable Securities and Other Shares which
would be held by such Holders and other selling stockholders, assuming
conversion, and this procedure shall be repeated until all of the shares of
Registrable Securities and Other Shares which may be included in the
registration on behalf of the Holders and other selling stockholders have been
so allocated. The Corporation shall not limit the number of Registrable
Securities to be included in a registration pursuant to this Agreement in order
to include shares held by stockholders with no registration rights.
(k) Delay of Registration. No Holder shall have any right to take any
action to restrain, enjoin, or otherwise delay any registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Paragraph 8.
(l) Termination of Registration Rights.
(i) Except as set forth in subparagraph (ii) below, the right of
any Holder to request registration or inclusion in any registration
pursuant to Paragraph 8(b), 8(c) or 8(d) shall terminate on such date
as all shares of Registrable Securities held or entitled to be held
upon exercise by such Holder may immediately be sold under Rule 144
during any 90-day period.
(ii) The provisions of subparagraph (i) above shall not apply
to any Holder who owns more than one percent (1%) of the Corporation's
outstanding stock until the earlier of (x) such time as such Holder
owns less than one percent (1%) of the outstanding stock of the
Corporation, or (y) the expiration of five (5) years after the date of
this Agreement.
(iii) The right of any Holder to request registration or inclusion
in any registration pursuant to Paragraph 8(b), 8(c) or 8(d) shall not
apply if the Holders propose to dispose of Shares that may be disposed
of under Rule 144.
9. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered or mailed by certified mail, postage prepaid, return receipt requested
and addressed as follows:
If to Purchaser: Xxx Xxxxxxxxx
000 Xxxxxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
If to the Corporation: 00000 Xxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, President
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Any party may change his respective address by written notice thereof
to the other parties pursuant to this Paragraph.
10. Counterparts. This Agreement may be executed in two or more
identical counterparts. Each such counterpart shall be deemed an original, but
together all such counterparts shall constitute one in the same instrument.
11. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED UNDER AND IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
12. Amendment. This Agreement contains the entire agreement between the
parties hereto and cannot be amended or altered except in writing executed by
the parties hereto.
13. Entire Agreement. This Agreement constitutes the sole, complete and
only agreement between the parties hereto as to the subject matter hereof, and
supersedes any prior understandings or written or oral agreements between the
parties respecting the within subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day first written above.
GLOBENET INTERNATIONAL, INC.
/s/ XXX XXXXXXXXX By: /s/ XXXXXXX X. XXXXXX
------------------------------- ---------------------------------------
XXX XXXXXXXXX Name: Xxxxxxx X. Xxxxxx
-------------------------------------
Title: President
------------------------------------
STOCK PURCHASE AGREEMENT - Page 14
