REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("Agreement") is made and entered into
as of November 4, 1998, between Ironwood Telecom LLC, a Colorado limited
liability company ("Lender"), and Incomnet, Inc., a California corporation (the
"Company").
R E C I T A L S
A. Lender is providing a bridge loan with proceeds of up to $3 million to
the Company (the "Bridge Loan") and committing to fund a term loan with proceeds
of up to $20 million (the "Term Loan").
B. Pursuant to the Bridge Loan, the Company has agreed to issue to Lender
warrants to purchase 500,000 shares of the Company's common stock ("Common
Stock").
C. Pursuant to the Term Loan, the Company plans to issue to Lender
additional warrants to purchase 3,000,000 shares of the Company's Common Stock,
subject to adjustment.
D. Lender is requiring and the Company is willing to grant Lender
registration rights with respect to the Company's common stock ("Common Stock")
underlying the warrants issued under the Bridge Loan and Term Loan ("Warrants").
NOW, THEREFORE, in consideration of the foregoing and intending to be
legally bound, the parties agree as follows:
1. Registration Rights.
Lender shall have the registration rights set forth below in respect of
the shares of Common Stock underlying the Warrants issued to Lender under the
Bridge Loan and Term Loan (the "Registrable Securities"). These registration
rights are granted to Lender and may not be transferred to any other person
without the prior written consent of the Company.
1.1 Shelf Registration.
Upon the written request of Lender at any time and provided that the
Company is eligible to use Form S-3 (or a comparable form permitting substantial
incorporation by reference), the Company shall file a "shelf" registration
statement on any appropriate form pursuant to Rule 415 (or similar rule that may
be adopted by the SEC) under the Securities Act (a "Shelf Registration") for all
of the then Registrable Securities.
The Company hereby agrees to file such Shelf Registration as
promptly as practicable following the request therefor and thereafter to use its
best efforts to cause such Shelf Registration to become effective and thereafter
to keep it continuously effective for three years from the effective date of
such Shelf Registration Statement, or such shorter period as shall terminate on
the date on which all the Registrable Securities covered by the Shelf
Registration have been sold pursuant to such Shelf Registration or otherwise.
The Company shall only be obligated to file one Shelf Registration. The Company
shall have no further obligation to register such Registrable Securities once
the Company has registered the Registrable Securities on a Shelf Registration.
The Company further agrees to supplement or make amendments to the
Shelf Registration, if required by the rules, regulations or instructions
applicable to the registration form utilized by the Company or by the Securities
Act or rules and regulations thereunder for shelf registration or any
underwriter of the Registrable Securities.
If the Company determines in its good faith judgment that the filing
of a Shelf Registration under this Section 1.1 hereof or the use of any related
prospectus would require the disclosure of material information that the Company
has a bona fide business purpose for preserving as confidential or the
disclosure of which would impede the Company's ability to consummate a
significant transaction, and that the Company is not otherwise required by
applicable securities laws or regulations to disclose, upon written notice of
such determination by the Company, the rights of Lender to offer, sell or
distribute any Registrable Securities pursuant to a Shelf Registration or to
require the Company to take action with respect to the registration or sale of
any Registrable Securities pursuant to a Shelf Registration shall be suspended
until the date upon which the Company notifies Lender in writing that suspension
of such rights for the grounds set forth in this Section 1.1 is no longer
necessary, and the Company agrees to give such notice as promptly as practicable
following the date that such suspension of rights is no longer necessary;
provided, however, that the Company shall not be permitted to suspend a Shelf
Registration under this Section 1.1 for more than 90 days in any calendar year
in which the Shelf Registration is effective.
If Lender so elects, the offering of Registrable Securities pursuant
to a Shelf Registration shall be in the form of an registration in which the
Registrable Securities are sold to an underwriter (an "Underwritten Offering").
If the managing underwriter or underwriters of such offering advise the Company
and Lender in writing that in their opinion the number of shares of Registrable
Securities requested to be included in such offering is too large and would
adversely affect the success of such offering, the Company will include in such
offering the aggregate number of Registrable Securities which in the opinion of
such managing underwriter or underwriters can be sold without any such material
adverse effect and the amount to be offered shall be reduced to the amount
recommended by such managing underwriter or underwriters. Unless Lender
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consents in writing, no other party, including the Company, shall be permitted
to offer securities in any such offering.
1.2 Incidental Registration.
If at any time prior to the expiration of the term of the Warrants,
the Company proposes to file a registration statement under the Securities Act
(other than in connection with the Shelf Registration, or a Registration
Statement on Form S-4 or S-8, or any form substituting therefor) with respect to
an offering of any class of security by the Company for its own account or for
the account of any of its security holders, then the Company shall give written
notice of such proposed filing to Lender as soon as practicable (but in no event
less than thirty days before the anticipated filing date), and such notice shall
offer to Lender the opportunity to register such number of Registrable
Securities as Lender may request. Lender shall so advise the Company in writing
within 20 days after the date of receipt of such notice from the Company (which
request shall set forth the number of Registrable Securities for which
registration is requested). The Company shall include in such Registration
Statement all such Registrable Securities so requested to be included therein,
and, if such registration is an Underwritten Registration, the Company shall use
its best efforts to cause the managing underwriter or underwriters to permit the
Registrable Securities requested to be included in the Registration Statement
for such offering to be included (on the same terms and conditions as similar
securities of the Company included therein to the extent appropriate); provided,
however, that if the managing underwriter or underwriters of such offering
deliver a written opinion to the Lender that the total number of securities that
are proposed to be included in such offering is such that the success of the
offering would be materially and adversely affected by inclusion of the
securities requested to be included, then the amount of securities to be offered
for the accounts of the Company, the Lender and other holders registering
securities pursuant to registration rights shall be allocated as follows:
(i) if such registration has been initiated by the Company as a
primary offering, first to the securities sought to be included by the Company,
second to the Registrable Securities sought to be included by Lender and third
to the securities sought to be included by other holders of registration rights;
and
(ii) if such registration has been initiated by a holder of
registration rights (other than Lender), first to the securities sought to be
included by such holder, second to the securities sought to be included by the
Company, and third to the Registrable Securities sought to be included by Lender
and to all other securities sought to be included by other holders of
registration rights, pro rata, on the basis of the number of securities owned by
each such holder.
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2. Hold-Back Agreements.
2.1 Restrictions on Public Sale by Holder of Registrable Securities.
Lender agrees, if requested by the managing underwriters in an
Underwritten Offering, not to effect any public sale or distribution of
securities of the Company of the same class as the securities included in such
Registration Statement, including a sale pursuant to Rule 144 under the
Securities Act (except as part of such Underwritten Registration), during the
10-day period prior to the filing of a Registration Statement with respect to
such Underwritten Offering, and during the 90-day period beginning on the
closing date of each Underwritten Offering made pursuant to such Registration
Statement, to the extent timely notified in writing by the Company or the
managing underwriters.
2.2 Restrictions on Sale of Securities by the Company.
The Company agrees not to effect any public sale or distribution of
any securities similar to those being registered, or any securities convertible
into or exchangeable or exercisable for such securities (except pursuant to a
registration statement on Form S-4 or S-8, or any substitute form that may be
adopted by the SEC) during the ten days prior to the filing of a registration
statement with respect to such Underwritten Offering, and during the 90-day
period beginning on the effective date of any Registration Statement (except as
part of such registration statement (x) where Lender consents or (y) where
Lender is participating in such registration statement pursuant to Section 1.2
hereof and such registration statement was filed by the Company).
3. Registration Procedures.
In connection with the Company's registration obligations pursuant to
Section 1 hereof, the Company will use its best efforts to effect such
registration to permit the sale of such Registrable Securities in accordance
with the intended method or methods of distribution thereof, and pursuant
thereto the Company will as expeditiously as possible take the actions described
below.
3.1 Preparation of Registration Statement.
The Company shall prepare and file with the SEC, as soon as
practicable, a Registration Statement relating to the applicable registration on
any appropriate form under the Securities Act, which forms shall be available
for the sale of the Registrable Securities in accordance with the intended
method or methods of distribution thereof and shall include all financial
statements of the Company, and use its best efforts to cause such Registration
Statement to become effective; provided that before filing a Registration
Statement or Prospectus or any amendments or supplements thereto, including
documents incorporated by reference after the initial filing of the Registration
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Statement, the Company will furnish one counsel selected by Lender, and the
underwriters, if any, copies of all such documents proposed to be filed, which
documents will be subject to the review of such counsel and underwriters, and
the Company will not file any Registration Statement or amendment thereto or any
prospectus or any supplement thereto (including such documents incorporated by
reference) to which such counsel or the underwriters, if any, shall reasonably
object.
3.2 Preparation of Amendments.
The Company shall prepare and file with the SEC such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective for the applicable period, or such
shorter period which will terminate when all Registrable Securities covered by
such Registration Statement have been sold. The Company shall cause the
prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act and
comply with the provisions of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method or
methods of distribution by Lender set forth in such Registration Statement or
supplement to the prospectus the Company shall not be deemed to have used its
best efforts to keep a Registration Statement effective during the applicable
period if it voluntarily takes any action that would result in Lender not being
able to sell such Registrable Securities during that period unless such action
is required under applicable law; provided that the foregoing shall not apply to
actions taken by the Company in good faith and for valid business reasons,
including, without limitation, a merger or the acquisition or sale of assets, so
long as the Company promptly thereafter complies with the requirements of
Section 3 hereof, if applicable.
3.3 Notification of Filings.
The Company shall notify the Lender and the managing underwriters,
if any, promptly, and confirm such advice in writing, (1) when the prospectus or
any prospectus supplement or post-effective amendment has been filed, and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective, (2) of any request by the SEC for amendments or
supplements to the registration statement or the prospectus or for additional
information, (3) of the issuance by the SEC of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any proceedings
for that purpose, (4) if at any time the representations and warranties of the
Company contemplated by Section 3.14 below cease to be true and correct, (5) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose and (6) of the
happening of any event which makes any statement made in the Registration
Statement, the prospectus or any document incorporated therein by reference
untrue or which requires
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the making of any changes in the Registration Statement, the prospectus or any
document incorporated therein by reference in order to make the statements
therein not misleading.
3.4 Prevent Suspension.
The Company shall make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement at the earliest possible moment.
3.5 Underwriters' Request.
If reasonably requested by the managing underwriter or underwriters
or a Lender, the Company shall promptly incorporate in a prospectus supplement
or post-effective amendment such information as the managing underwriters and
the Lender agree should be included therein relating to the sale of the
Registrable Securities, including, without limitation, information with respect
to the number of Registrable Securities being sold to such underwriters, the
purchase price being paid therefor by such underwriters and with respect to any
other terms of the Underwritten (or best efforts underwritten) Offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such prospectus supplement or
post-effective amendment.
3.6 Provide Documents.
The Company shall promptly prior to the filing of any document which
is to be incorporated by reference into the Registration Statement or the
prospectus (after initial filing of the Registration Statement), make available
representatives of the Company for discussion of such document and make such
changes in such document prior to the filing thereof as counsel for such selling
holders or underwriters may reasonably request.
3.7 Copies of Registration Statement.
The Company shall furnish to Lender and each managing underwriter,
without charge, at least one signed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits (including
those incorporated by reference).
3.8 Prospectus Copies.
The Company shall deliver to Lender and the underwriters, if any,
without charge, as many copies of the prospectus (including each preliminary
prospectus) and any
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amendment or supplement thereto as such persons may reasonably request. The
Company consents to the use of the prospectus or any amendment or supplement
thereto by Lender and the underwriters, if any, in connection with the offering
and sale of the Registrable Securities covered by the prospectus or any
amendment or supplement thereto.
3.9 Blue Sky Compliance.
Prior to any public offering of Registrable Securities, the Company
shall register or qualify or cooperate with the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel in connection
with the registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions as any
seller or underwriter reasonably requests in writing and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the Registration
Statement.
3.10 Certificates.
The Company shall cooperate with Lender and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters may
request at least two business days prior to any sale of Registrable Securities
to the underwriters.
3.11 Other Approvals.
The Company shall cause the Registrable Securities covered by the
applicable Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities.
3.12 Supplement.
Upon the occurrence of any event contemplated by Section 3.3(6)
above, subject to Section 1.1, the Company prepare a supplement or
post-effective amendment to the Registration Statement or the related prospectus
or any document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, the prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein
not misleading.
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3.13 Listing.
The Company shall cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange on which similar
securities issued by the Company are then listed.
3.14 Sales Facilitation.
The Company shall enter into such agreements (including an
underwriting agreement) and take all such other actions in connection therewith
in order to expedite or facilitate the disposition of such Registrable
Securities and in connection therewith, whether or not an underwriting agreement
is entered into and whether or not the registration is an Underwritten
Registration, (1) make such representations and warranties to the holders of
such Registrable Securities and the underwriters, if any, in form, substance and
scope as are customarily made by issuers to underwriters in primary underwritten
offerings; (2) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and Lender, covering the
matters customarily covered in opinions requested in Underwritten Offerings and
such other matters as may be reasonably requested by such holders and
underwriters); (3) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to Lender and the
underwriters, if any, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters by underwriters in
connection with primary Underwritten Offerings; (4) if an underwriting agreement
is entered into, the same shall set forth in full the indemnification provisions
and procedures of Section 5 hereof with respect to all parties to be indemnified
pursuant to said Section; and (5) the Company shall deliver such documents and
certificates as may be requested by Lender and the managing underwriters, if
any, to evidence compliance with clause (1) above and with any customary
conditions contained in the underwriting agreement or other agreement entered
into by the Company. The above shall be done at each closing under such
underwriting or similar agreement or as and to the extent required thereunder.
3.15 Financial Records.
The Company shall make available for inspection by Lender, any
underwriter participating in any disposition pursuant to such registration, and
any attorney or accountant retained by Lender or underwriter, all financial and
other records, pertinent corporate documents and properties of the Company and
cause the Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such registration; provided that any records,
information or documents that are designated by the Company
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in writing as confidential shall be kept confidential by such Persons unless
disclosure of such records, information or documents is required by court or
administrative order.
3.16 Compliance with Rules.
The Company shall otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of 12 months, beginning within three months after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of section 11(a) of the Securities Act.
3.17 NASD Filings.
The Company shall cooperate with Lender and each underwriter
participating in the disposition of such Registrable Securities and their
respective counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD").
The Company may require Lender to furnish to the Company such
information regarding the distribution of such securities as the Company may
from time to time reasonably request in writing.
Lender agrees by acquisition of such Registrable Securities that,
upon receipt of any notice from the Company of the happening of any event of the
kind described in Section 3.12 hereof, Lender will forthwith discontinue
disposition of Registrable Securities until Lender's receipt of the copies of
the supplemented or amended prospectus contemplated by Section 3.12 hereof, or
until it is advised in writing (the "Advice") by the Company that the use of the
prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the prospectus, 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 then in such
holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice.
4. Registration Expenses.
All expenses incident to the Company's performance of or compliance
with this Agreement, including without limitation: all registration and filing
fees; fees with respect to filings required to be made with the NASD; fees and
expenses of compliance with securities or blue sky laws (including fees and
disbursements of counsel for the underwriters of Registrable Securities in
connection with blue sky qualifications of the Registrable Securities and
determination of their eligibility for investment under the laws of such
jurisdictions as the managing underwriters or Lender may designate); printing
expenses, messenger, telephone and delivery expenses; fees and disbursements of
counsel
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for the Company and customary fees and expenses for independent certified public
accountants retained by the Company (including the expenses of any comfort
letters or costs associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters requested pursuant to Section
3.14 hereof); fees and disbursements of one counsel for the Lender and all other
holders of registration rights; all internal expenses of the Company (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties); the expense of any annual audit; the
fees and expenses incurred in connection with the listing of the securities to
be registered on each securities exchange on which similar securities issued by
the Company are then listed; and the fees and expenses of any person, including
special experts, retained by the Company (all such expenses being herein called
"Registration Expenses") will be borne by the Company regardless of whether the
Registration Statement becomes effective. The Company shall not have any
obligation to pay any underwriting discounts, commissions or similar fees
attributable to the sale of Registrable Securities.
5. Indemnification: Contribution.
5.1 Indemnification by the Company.
The Company agrees to indemnify and hold harmless Lender and its
members, managers, and their respective partners, officers, directors, employees
and agents, and each person who controls such person (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) against all
losses, claims, damages, liabilities and expenses arising out of or based upon
any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, prospectus or preliminary prospectus or 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, except insofar as
the same are caused by or contained in any information furnished in writing to
the Company by Lender expressly for use therein. The Company will also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers and directors
and each person who controls such persons (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) to the same extent as
provided above with respect to the indemnification of Lender, if requested.
5.2 Indemnification by Lender.
Lender agrees to indemnify and hold harmless the Company and its
directors, officers, employees and agents, and each person who controls the
Company (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue statement of a material fact or any omission of a
material fact required to be stated
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in the Registration Statement or prospectus or preliminary prospectus or
necessary to make the statements therein not misleading, to the extent, but only
to the extent, that such untrue statement or omission is contained in any
information or affidavit so furnished in writing by Lender to the Company
specifically for inclusion in such Registration Statement or prospectus. In no
event shall the liability of Lender hereunder be greater in amount than the
dollar amount of the proceeds received by Lender upon the sale of the
Registrable Securities giving rise to such indemnification obligation. The
Company shall be entitled to receive indemnities from underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above with
respect to information so furnished in writing by such persons specifically for
inclusion in any prospectus or Registration Statement.
5.3 Conduct of Indemnification Proceedings.
Any Person entitled to indemnification hereunder will (i) give
prompt notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the indemnified
party; provided, however , that any person entitled to indemnification hereunder
shall have the right to employ separate counsel and to participate in the
defense of such claim, but the fees and expenses of such counsel shall be at the
expense of such person unless (a) the indemnifying party has agreed to pay such
fees or expenses, (b) the indemnifying party shall have failed to assume the
defense of such claim and employ counsel reasonably satisfactory to such person
or (c) based upon written advice of counsel to such person, there shall be one
or more defenses available to such person that are not available to the
indemnifying party or there shall exist conflicts of interest pursuant to
applicable rules of professional conduct between such person and the
indemnifying party (in which case, if the person notifies the indemnifying party
in writing that such person elects to employ separate counsel at the expense of
the indemnifying party, the indemnifying party shall not have the right to
assume the defense of such claim on behalf of such person), in each of which
events the fees and expenses of such counsel shall be at the expense of the
indemnifying party. The indemnifying party will not be subject to any liability
for any settlement made without its consent (but such consent will not be
unreasonably withheld), but if settled with its written consent, or if there be
a final judgment for the plaintiff in any such action or proceeding, the
indemnifying party shall indemnify and hold harmless the indemnified parties
from and against any loss or liability (to the extent stated above) by reason of
such settlement or judgment. No indemnified party will be required to consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability in respect to such claim or
litigation.
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5.4 Contribution.
If for any reason the indemnification provided for in the preceding
Sections 5.1 and 5.2 is unavailable to an indemnified party or insufficient to
hold it harmless as contemplated by the preceding Sections 5.1 and 5.2, then the
indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnified party and the indemnifying party, but also the relative fault
of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations, provided, that Lender shall not be required
to contribute an amount greater than the dollar amount of the proceeds received
by Lender with respect to the sale of the Registrable Securities giving rise to
such indemnification obligation. The relative fault of the Company on the one
hand and of Lender on the other 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 such party, and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentations.
6. Participation in Underwritten Registrations
6.1 Selection of Underwriter.
If any of the Registrable Securities covered by the Shelf
Registration are to be sold in an Underwritten Offering, the investment banker
or investment bankers and manager or managers that will administer the offering
will be selected by Lender; provided that such investment bankers and managers
must be reasonably satisfactory to the Company.
6.2 Commitment to Sell; Cooperation.
Lender shall not participate in any underwritten registration
hereunder pursuant to Section 1.2 unless Lender (i) agrees to sell on the basis
provided in any underwriting arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
Nothing in this Section 6 shall be construed to create any additional rights
regarding the registration of Registrable Securities.
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7. Successors and Assigns.
Each covenant and representation of this Agreement shall inure to the
benefit and be binding upon each of the parties, their personal representatives,
assigns and other successors in interest.
8. Entire Agreement.
This Agreement constitutes the entire agreement between the parties and
supersedes all other agreements, representations, warranties, statements,
promises and undertakings whether oral or written with respect to the subject
matter of this Agreement. This Agreement may be modified only by written
agreement signed by all parties.
9. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Colorado, except that no doctrine of choice of law shall be
used to apply the laws of any other state or jurisdiction.
10. Counterparts.
This Agreement may be executed simultaneously in any number of
counterparts, each of which counterpart shall be deemed to be an original and
such counterpart shall constitute one and the same instrument.
11. Further Acts of the Parties.
The parties to this Agreement hereby agree to execute any other documents,
to take further actions which are reasonably necessary and appropriate in order
to implement the transactions contemplated by this Agreement.
12. Authorized Signatures.
Each of the parties to this Agreement hereby represents that the person
signing below are authorized to execute this Agreement on behalf of their
respective party.
13. Fees and Costs.
The Borrower shall pay to the Lender on demand all costs and
expenses that the Lender pays or incurs in connection with the negotiation,
preparation, consummation, administration, enforcement, and termination of this
Agreement, including, without limitation reasonable attorneys' and paralegals'
fees and disbursements of counsel to the Lender.
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IN WITNESS WHEREOF, this Agreement has been entered into as of the date
first written above.
"COMPANY"
INCOMNET, INC.
By: /s/ Denis Richard
---------------------------------------
Denis Richard
President and Chief Executive Officer
"LENDER"
IRONWOOD TELECOM LLC
By: /s/ Donald V. Berlanti
---------------------------------------
Donald V. Berlanti
Member
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