Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of October 15, 1999, by and
between Imperial Bank, a California banking corporation (the "Stockholder"), and
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U.S. Audiotex Corporation, a Delaware corporation (the "Company").
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WHEREAS, the Stockholder has been instrumental in the incorporation
and organization of the Company;
WHEREAS, the Stockholder owns, on the date hereof, eighty percent
(80%) of the outstanding shares of common stock, par value $0.01 per share (the
"Common Stock"), of the Company;
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WHEREAS, the Company and the Stockholder wish to provide for certain
demand and piggy-back registration rights under the Securities Act of 1933, as
amended (the "Securities Act") with respect to the securities of the Company
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owned by the Stockholder;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties to this Agreement hereby agree as
follows:
1. Definitions and Interpretation. (a) As used in this Agreement,
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the following terms shall have the following meanings:
(i) "Affiliate" shall have the meaning ascribed to such term in
Rule 405 promulgated under the Securities Act.
(ii) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, or any successor statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
(iii) "Holder" shall mean any person who owns of record
Registrable Securities.
(iv) "Initial Public Offering" shall mean an initial public
offering of equity securities of the Company pursuant to a registration
statement declared effective under the Securities Act.
(v) "IPO Date" shall mean the earlier to occur of (A) the date on
which there shall have first become effective a registration statement under the
Securities Act filed by the Company relating to an underwritten Initial Public
Offering, or (B) the date on which the Company shall register a class of
securities under Section 12 of the Exchange Act.
(vi) "Majority" shall mean greater than fifty (50%) percent.
(vii) "Registration Expenses" shall have the meaning ascribed to
such term in Section 4(f) hereof.
(viii) "Registrable Securities" shall mean any of the shares of
Common Stock now owned or hereafter acquired by the Stockholder; provided,
however, that Registrable Securities shall cease to be Registrable Securities
when they cease to be Restricted Securities.
(ix) "Restricted Securities" shall have the meaning ascribed to
such term in Section 1(b).
(x) "SEC" and "Commission" shall mean the Securities and Exchange
Commission.
(b) For the purposes of this Agreement, all Registrable Securities
are "Restricted Securities" until the earliest to occur of the time when (i) a
registration statement covering such Registrable Securities has been declared
effective and such Registrable Securities have been disposed of pursuant to such
effective registration statement, and (ii) such Registrable Securities may be
sold pursuant to Rule 144(k) under the Securities Act or any successor rule then
in force.
(c) In this Agreement, (A) words in the singular include the
plural and vice versa, (B) the words "include" or "including" shall mean
"including without limitation," (C) the word "person" shall mean and include an
individual, partnership, corporation, joint venture, limited liability company
or partnership, trust or other legal entity, (D) the word business day shall
mean any day other than a Saturday, Sunday or a day which is a statutory holiday
under the laws of the United States or the State of New York, and (E) when
calculating a period of time within which or following which any act is to be
done or step taken, the date which is the reference day in calculating such
period shall be excluded and, if the last day of such period is not a business
day, the period shall end on the next day that is a business day.
2. Demand Registration. (a) The Stockholder or any subsequent
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Holder of a Majority of the Registrable Securities may make a written request
for registration under the Securities Act pursuant to this Section 2 of all or
part of their Registrable Securities (the "Demand Registration"), provided,
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however, that the Company shall be required to effect no more than four (4)
Demand Registrations under this Section 2, and provided further that the Company
shall not be required to effect a Demand Registration under this Section 2 at
any time prior to the thirtieth day following the IPO Date. Upon receipt of a
request for a Demand Registration, the Company shall (i) as soon as reasonably
practicable, cause to be filed, and use all reasonable efforts to cause to be
declared effective, a registration statement (the "Demand Registration
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Statement"), on such appropriate form as the Company in its discretion shall
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determine, providing for the sale of all of such Registrable Securities by such
Stockholder or Holder, as the case may be, and (ii) promptly give written notice
to all other Holders of Registrable Securities that such Demand Registration is
to be effected and shall include in the Demand Registration Statement such
additional Registrable Securities with respect to which it
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has received written requests for registration from any such other Holder within
15 days after the date on which the Company gave such notice. A Holder's request
must specify the aggregate number of Registrable Securities proposed to be
registered and sold and must also specify the intended method of disposition
thereof. The Company agrees to use its best efforts to keep the Demand
Registration Statement continuously effective and usable for resale of
Registrable Securities for a period of not less than nine (9) months. The
Company will pay all Registration Expenses in connection with any Demand
Registration.
(b) A registration will not count as a Demand Registration until a
Demand Registration Statement has become effective; provided, however, that if a
Demand Registration Statement does not become effective solely by reason of any
act or omission on the part of a Holder or Holders whose Registrable Securities
are included in the Demand Registration Statement, such registration shall
nevertheless count as a Demand Registration unless the Holders of such
Registrable Securities reimburse the Company for all Registration Expenses
reasonably incurred by the Company which are attributable to such registration.
(c) If the Holder or Holders initially requesting registration so
elect, the offering of the Registrable Securities pursuant to a Demand
Registration shall be in the form of an underwritten offering. In such event,
if the managing underwriter of such offering advise the Company and the Holders
in writing that in its opinion the aggregate number of securities requested to
be included in the Demand Registration is sufficiently large to materially and
adversely affect the success or offering price of the offering, then the Company
will include in the Demand Registration only the aggregate number of securities
which in the opinion of such managing underwriter can be sold without any such
material adverse effect, and such securities shall be allocated pro rata among
the Holders of Registrable Securities based on the number of Registrable
Securities requested to be included in such Demand Registration by the
respective Holders (before any such securities are allocated to the Company or
any holder of securities other than Registrable Securities).
(d) The Company agrees (i) not to effect any public or private
sale, distribution or purchase of any of its securities which are the same as or
similar to the Registrable Securities, including a sale pursuant to Regulation D
under the Securities Act, during the 30-day period prior to, and during the 90-
day period beginning on, the closing date of an underwritten offering under a
Demand Registration Statement, and (ii) to use its reasonable best efforts to
cause each holder of its securities (other than securities purchased in a
registered public offering) to agree not to effect any public sale or
distribution of any such securities during such period, including a sale
pursuant to Rule 144 under the Securities Act.
(e) The Company may postpone for a reasonable period of time, not
to exceed 60 days, the filing or the effectiveness of any Demand Registration
Statement if the Board of Directors of the Company in good faith determines that
(A) the Demand Registration can be reasonably expected to have a material
adverse effect on any plan or proposal by the Company with respect to any
financing, acquisition, recapitalization, reorganization or other material
transaction, or (B) the Company is in possession of material non-public
information that, if publicly disclosed, could result in a material disruption
of a major corporate
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development or transaction then pending or in progress or in other material
adverse consequences to the Company.
(f) If at any time the Holder of a Majority of the Registrable
Securities to be covered by a Demand Registration Statement desires to sell
Registrable Securities in an underwritten offering, such Holder shall have the
right to select any nationally recognized investment banking firm to administer
the offering, subject to the approval of the Company, which approval will not be
unreasonably withheld, and the Company shall enter into an underwriting
agreement with the underwriter of such offering, which agreement shall contain
such representations and warranties by the Company, and such other terms,
conditions and indemnities, as are at the time customarily contained in
underwriting agreements for similar offerings.
3. Piggy-Back Registration. If at any time the Company proposes to
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register (a "Piggy-Back Registration") any of its securities (the "Initially
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Proposed Shares") under the Securities Act for sale, whether or not for its own
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account and whether or not pursuant to an underwritten offering (other than (i)
a registration statement filed in connection with an Initial Public Offering;
(ii) a registration statement on Form S-4 or S-8 or successor forms thereto; or
(iii) a registration statement filed in connection with an exchange offer or an
offering of securities solely to the Company's then existing stockholders or
employees), the Company will promptly give written notice (a "Piggy-Back
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Registration Notice") to the Holders of its intention to effect a Piggy-Back
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Registration (such Piggy-Back Registration Notice to specify, where applicable,
among other things, the proposed offering price, the kind and number of
securities proposed to be registered and the distribution arrangements,
including identification of the underwriter), and the Holders shall be entitled
to include in such Piggy-Back Registration, as a part of such underwritten
offering and on the same terms and conditions as the Initially Proposed Shares,
such number of Registrable Securities to be sold for the account of the Holders
as shall be specified in a request in writing delivered to the Company within
twenty (20) days after the date of the Piggy-Back Registration Notice. The
Company will pay all Registration Expenses in connection with such Piggy-Back
Registration.
The Company's obligations to include Registrable Securities in a
Piggy-Back Registration pursuant to this Section 3 is subject to the following
limitations, conditions and qualifications:
(i) Notwithstanding anything to the contrary contained in the
provisions of this Section 3, the Company shall have the right at any time
after it shall have given a Piggy-Back Registration Notice (irrespective of
whether a written request for inclusion of any Registrable Securities shall
have been made) to elect not to effect the proposed Piggy-Back Registration
or to withdraw the same after the filing but prior to the effective date
thereof.
(ii) If, in the written opinion of the managing underwriter of a
Piggy-Back Registration, the aggregate number of securities requested to be
included in the Piggy-Back Registration is sufficiently large to materially
and adversely affect the
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success or offering price of the offering, then the number of shares all
prospective sellers (other than the Company and security holders exercising
demand registration rights) intended to distribute through the Piggy-Back
Registration shall be reduced pro rata based on the number of securities
requested to be included in such offering by such prospective sellers. In
no event shall the number of Initially Proposed Shares to be sold by the
Company or the number of securities to be sold by any security holder
exercising demand registration rights be reduced until all securities to be
sold by prospective sellers (other than the Company and security holders
exercising demand registration rights) have been cut back to zero as a
result of the preceding sentence. If, as a result of the cutback provisions
of the preceding sentence, any Holder is not entitled to include in such
Piggy-Back Registration all of the Registrable Securities requested to be
included therein by such Holder, such Holder may elect to withdraw its
request to be included in such Piggy-Back Registration.
4. Registration Procedures. (a) Whenever any Holder has requested
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the registration of any Registrable Securities under the Securities Act pursuant
to the terms and conditions of Section 2(a) or 3 (such Registrable Securities
being hereinafter referred to as "Subject Shares"), the Company will, subject to
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the provisions of Section 2 and 3 (to the extent applicable), use all reasonable
efforts to effect the registration of the Subject Shares in accordance with the
intended method of disposition thereof. Without limiting the generality of the
foregoing, the Company will, subject to the provisions of Section 2 and 3 (to
the extent applicable), as soon as practicable:
(i) prepare and file with the Commission a registration statement
with respect to the Subject Shares in form and substance reasonably
satisfactory to the Holders of the Subject Shares, and use all reasonable
efforts to cause such registration statement to become effective as
promptly as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period of not less than nine (9) months or for
such shorter period which will terminate when all of the Subject Shares
covered by such registration statement have been sold (but not before the
expiration of the applicable period referred to in Section 4(3) of the
Securities Act and Rule 174 thereunder), and comply with the provisions of
the Securities Act with respect to the disposition of all securities
covered by such registration statement during such period in accordance
with the intended methods of disposition by the sellers thereof set forth
in such registration statement;
(iii) furnish the Holders covered by such registration
statement, without charge, such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such reasonable number of copies of
the prospectus included in such registration statement (including any
preliminary prospectus), such documents incorporated by reference in such
registration statement or prospectus, and such other documents as such
Holders may reasonably request;
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(iv) use all reasonable efforts to register or qualify the
Subject Shares covered by such registration statement under the securities
or blue sky laws of such jurisdictions as the managing underwriter shall
reasonably recommend or, in the case of an offering that is not an
underwritten offering, as the Holders may reasonably request, and do any
and all other acts and things which may be reasonably necessary or
advisable to enable the Holders to consummate the disposition in such
jurisdictions of the Subject Shares covered by such registration statement,
except that the Company shall not for any such purpose be required to (A)
qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not otherwise required to be so qualified, (B)
subject itself to taxation in any jurisdiction wherein it is not so
subject, or (C) consent to general service of process in any such
jurisdiction or otherwise take action that would subject it to the general
jurisdiction of the courts of any jurisdiction to which it is not so
subject;
(v) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and to cause the Subject Shares covered by
such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the Holders thereof or the
underwriter to consummate the disposition of the Subject Shares;
(vi) furnish, at the Company's expense, unlegended certificates
representing ownership of the Subject Shares being sold in such
denominations and registered in such names as the Holders may reasonably
request and instruct the transfer agent to release any stop transfer orders
with respect to the Subject Shares being sold;
(vii) at any time when a prospectus relating to the Subject
Shares is required to be delivered under the Securities Act, notify each
Holder of the happening of any event as a result of which the prospectus
included in such registration statement contains any untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and the Company
will, as promptly as practicable thereafter, prepare and file with the SEC
and furnish to the Holders a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of Subject Shares, such
prospectus will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading;
(viii) enter into customary agreements (including an
underwriting agreement in customary form in the case of an underwritten
offering) containing such representations and warranties to the Holders and
underwriters as in form and substance and scope are customarily made by
issuers to underwriters in underwritten offerings and including customary
covenants, indemnifications and conditions, and take such other actions as
the Holders or the managing underwriter or agent, if any, reasonably
require in order to expedite or facilitate the disposition of such Subject
Shares;
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(ix) make available for inspection by the Holders, any
underwriter or agent participating in any disposition pursuant to such
registration statement, and any attorney, accountant or other similar
professional advisor retained by any such Holders or underwriter
(collectively, the "Inspectors"), all financial and other records,
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corporate documents and properties of the Company (collectively, the
"Records") as shall be reasonably necessary to enable the Inspectors to
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exercise their due diligence responsibility, and cause the Company's
officers, directors and employees to supply all Records and information
reasonably requested by any such Inspector in connection with such
registration statement. The Holders agree that Records and other
information which the Company determines, in good faith, to be confidential
and of which determination the Inspectors are so notified shall not be
disclosed by the Inspectors unless (A) the disclosure of such Records or
information is necessary to avoid or correct a misstatement or omission in
the registration statement, (B) the release of such Records is ordered
pursuant to a subpoena, court order or regulatory or agency request, or (C)
the information in such Records has been generally disseminated to the
public. Each Holder agrees that it will, upon learning that disclosure of
such Records is sought by a court of competent jurisdiction or by a
governmental agency, give notice to the Company and allow the Company, at
the Company's expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(x) in the event of an underwritten offering, obtain for delivery
to the Company and the underwriter or agent, with copies to the Holders, a
"cold comfort" letter, dated as of the effective date of the registration
statement covering the Subject Shares, and a bring-down "cold comfort"
letter, dated as of the date of the sale of the Subject Shares to the
underwriter, from the Company's independent public accountants in customary
form and covering such matters of the type customarily covered by "cold
comfort" letters as the Holders of a Majority of the Subject Shares or the
managing underwriter reasonably request;
(xi) in the event of an underwritten offering, obtain for
delivery to the Holders and the underwriter or agent an opinion of counsel
for the Company, dated as of the date of the sale of the Subject Shares to
the underwriter, in customary form and covering matters of the type
customarily covered by such opinion and reasonably satisfactory to the
Holders and the underwriters or agent and their counsel;
(xii) make available to its security holders earnings statements
(which need not be audited) satisfying the provisions of Section 11(a) of
the Securities Act no later than 90 days after the end of the 12-month
period beginning with the first month of the Company's first quarter
commencing after the effective date of a registration statement covering
the Subject Shares, which earnings statements shall cover said 12-month
period;
(xiii) make every reasonable effort to prevent the issuance of
any stop order suspending the effectiveness of the registration statement
covering the Subject Shares or of any order preventing or suspending the
use of any related prospectus or
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suspending the qualification of the Subject Shares for sale in any
jurisdiction, and, if any such order is issued, to obtain its withdrawal at
the earliest possible moment;
(xiv) cooperate with the Holders and the managing underwriter,
if any, or any other interested party (including any interested broker-
dealer) in making any filings or submission required to be made, and the
furnishing of all appropriate information in connection therewith, with the
National Association of Securities Dealers, Inc. ("NASD");
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(xv) cause its subsidiaries to take action necessary to effect
the registration of the Subject Shares, including filing any required
financial information;
(xvi) effect the listing of the Subject Shares on such national
securities exchange or quotation system on which the shares of Common Stock
shall then be traded or listed for quotation; and
(xvii) take any and all other steps reasonably necessary or
advisable to effect the registration of the Subject Shares in accordance
with this Agreement.
(b) The Holders of the Subject Shares shall provide (in writing
and signed by the Holders and stated to be specifically for use in the related
registration statement, preliminary prospectus, prospectus or other document
incident thereto) all such information and materials and take all such action as
may be reasonably required in order to permit the Company to comply with all
applicable requirements of the SEC and any applicable state securities laws and
to obtain any desired acceleration of the effective date of any registration
statement prepared and filed by the Company pursuant to this Agreement.
(c) Each Holder of the Subject Shares shall, if requested by the
Company or the managing underwriter in connection with any proposed registration
and distribution pursuant to this Agreement, (i) agree to sell the Subject
Shares on the basis provided in any underwriting arrangements entered into in
connection therewith, and (ii) complete and execute all questionnaires, powers
of attorney enabling the Company to negotiate the offering price of the Subject
Shares with the managing underwriter within a range previously agreed upon by
the Company and such Holder, indemnities (but only with respect to written
information relating to such Holder furnished by such Holder specifically in
connection with such registration) underwriting agreements and other documents
customary in similar offerings.
(d) Each Holder of Subject Shares who desires to sell and
distribute such Securities over a period of time, or from time to time, at then
prevailing market prices, shall execute and deliver to the Company such written
undertakings as the Company and its counsel may reasonably require in order to
assure full compliance with the relevant provisions of the Securities Act.
(e) Each Holder of Subject Shares agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 4(a)(vii) hereof, such Holder will forthwith discontinue the disposition
of Subject Shares held
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by such Holder pursuant to the registration statement covering such Subject
Shares until such Holder receives the supplemented or amended prospectus
contemplated by Section 4(a)(vii) hereof, and, if so directed by the Company,
such Holder will deliver to the Company (at the Company's expense) all copies
(other than permanent file copies) of the prospectus covering such Subject
Shares in such Holder's possession at the time of receipt of such notice. In the
event the Company shall give any such notice, the Company shall extend the
period during which the registration statement covering the Subject Shares shall
be maintained effective pursuant to this Agreement (including the period
referred to in Section 4(a)(ii)) by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
4(a)(vii) hereof to and including the date when each Holder of Subject Shares
covered by such registration statement shall have received the copies of the
supplemented or amended prospectus contemplated by Section 4(a)(vii) hereof.
(f) All reasonable expenses incident to the Company's
performance of or compliance with this Agreement, including all registration
and filing fees, all expenses incident to filing with the NASD, all fees and
expenses of compliance with securities or blue sky laws (including reasonable
fees and disbursements of counsel in connection with blue sky qualifications
of the Subject Shares), rating agency fees, printing expenses, messenger and
delivery expenses, internal expenses (including all salaries and expenses of
its officers and employees performing legal or accounting duties), the fees
and expenses incurred in connection with the listing of the Subject Shares on
such national securities exchange on which the shares of Common Stock are then
listed or, if not so listed, on the National Market of The Nasdaq Stock Market,
Inc., reasonable fees and disbursements of counsel for the Company and its
independent certified public accountants (including the expenses of any
special audit or "comfort" letters required by or incident to such
performance), premiums for securities acts liability insurance (if the Company,
in its sole discretion, elects to obtain such insurance), the reasonable fees
and expenses of any special experts retained by the Company in connection with
such registration, the reasonable fees and expenses of other persons retained
by the Company (or the agents who manage their accounts) and the reasonable
fees and disbursements of one counsel for the Holders of the Subject Shares in
connection with the Demand Registration which fees and disbursements shall not
exceed $75,000 (all such expenses being herein called "Registration Expenses"),
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shall be borne by the Company. Registration Expenses shall not include any fees
or disbursements of counsel to the Holders of the Subject Shares except as
otherwise provided above, or any underwriting discounts or commissions that are
applicable to the Subject Shares held by such Holders that are to be registered
under the Securities Act pursuant to Section 2(a) or Section 3 hereof. The
foregoing expenses that are excluded from Registration Expenses shall be borne
by each Holder of Subject Shares on a pro rata basis, based on the number of
Subject Shares of all Holders included in a registration statement covering the
Subject Shares.
5. Rule 144 Requirements. From time to time after the IPO Date, the
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Company will use its best efforts to make publicly available and available to
the Holders of Registrable Securities such information as shall be necessary to
enable the Holders of Registrable Securities to make sales of Registrable
Securities pursuant to Rule 144 under the Securities Act. The Company shall, at
the request of any Holder of Registrable Securities,
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upon receipt from such Holder of a certificate certifying (i) that at least two
(2) years have elapsed since the later of the date such Registrable Securities
were acquired from the Company or an affiliate of the Company (computed in
accordance with Rule 144(d), including the provisions thereof regarding
"tacking"), and (ii) that such Holder has not been an affiliate (as defined in
Rule 144) of the Company within the 90-day period preceding the date of such
Holder's certificate, remove from the stock certificate representing such
Registrable Securities any restrictive securities law legend.
6. Notices. Any notice or other communication required or permitted
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to be given hereunder to any party shall be in writing and shall be effective
(a) if delivered on a business day during normal business hours where such
notice is to be received, upon hand delivery or delivery by telecopy or
facsimile to such party at the address or number designated below, (b) if
delivered other than on a business day during normal business hours where such
notice is to be received, on the first business day following hand delivery or
delivery by telecopy or facsimile to such party at the address or number
designated below, or (c) on the first business day following the date of mailing
by overnight courier service, or on the fifth (5th) business day following the
date of mailing by certified or registered mail, fully prepaid, to such party at
the address designated below, or upon actual receipt of such mailing, whichever
shall first occur. The addresses for such communications shall be:
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If to the Company, to it at:
2333 San Ramon Valley Boulevard, Suite 450
San Ramon, California 94583
Attn: Thomas R. Evans
Facsimile No.: (925) 838-7996
With a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
Attn: Dennis J. Block
Facsimile No.: (212) 504-6666
If to the Stockholder, to it at:
9920 South La Cienega Boulevard
Inglewood, California 90301
Attn: General Counsel
Facsimile No.: (310) 417-5695
With a copy to:
Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, NY 10038
Attn: Dennis J. Block
Facsimile No.: (212) 504-6666
If to any other Holder, to such name and such address or number for
such Holder as appears on the Company's records or as such Holder shall have
indicated in a written notice delivered to the other parties to this Agreement.
Any party hereto may from time to time change its address or number
for notices under this Section 6 by giving at least 10 days' notice of such
changes to the other parties hereto. The Company shall notify all Holders of
Registrable Securities of any change of address or number received by it.
7. Waivers. No waiver by any party of any default with respect to
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any provision, condition or requirement hereof shall be deemed to be a
continuing waiver in the future thereof or a waiver of any other provision,
condition or requirement hereof; nor shall any delay or omission of any party to
exercise any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter.
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8. Headings. The headings herein are for convenience only, do not
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constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
9. Successors and Assigns; Amendments. This Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, including and without the need for an express
assignment, each subsequent Holder of any Registrable Securities. Except for an
assignment or transfer of Registrable Securities by a Holder to a subsequent
Holder, neither the Company nor any Holder shall assign this Agreement or any
rights hereunder without the prior written consent of the other parties hereto.
The assignment by a party of this Agreement or any rights hereunder shall not
affect the obligations of such party hereunder. This Agreement may not be
amended except by a written instrument executed by the parties hereto.
10. No Third Party Beneficiaries. This Agreement is intended for the
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benefit of the parties hereto and their respective successors and permitted
assigns and is not for the benefit of, nor may any provision hereof be enforced
by, any other person.
11. Governing Law. This Agreement shall be governed by and construed
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and enforced in accordance with the internal laws of the State of New York
without regard to the principles of conflicts of laws.
12. Remedies. Each Holder of Registrable Securities, in addition to
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being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement and injunctions to prevent breaches of the covenants contained in this
Agreement.
13. Severability. In the event that any one or more of the
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provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby.
14. Entire Agreement. This Agreement is intended by the parties as a
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final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no representations, promises,
warranties or undertakings regarding such subject matter, other than those set
forth herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
15. Execution. This Agreement may be executed in two or more
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counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party, it being understood that both parties need not
sign the same counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the date hereof.
IMPERIAL BANK
By /s/ Richard M. Baker
---------------------
Name: Richard M. Baker
Title: Senior Vice President, General Counsel
and Secretary
U.S. AUDIOTEX CORPORATION
By /s/ Thomas Evans
----------------
Name: Thomas R. Evans
Title: Chairman and Chief Executive Officer
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