Exhibit 5
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REGISTRATION RIGHTS AGREEMENT
by and between
▇▇▇▇▇.▇▇▇ CORPORATION
and
AMERICA ONLINE, INC.
Dated: June 8, 1999
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REGISTRATION RIGHTS AGREEMENT
AGREEMENT, dated as of June 8, 1999, by and between ▇▇▇▇▇.▇▇▇
CORPORATION (the "Issuer"), a corporation organized and existing under
the laws of the Cayman Islands, and AMERICA ONLINE, INC. (the
"Subscriber"), a corporation organized and existing under the laws of the
State of Delaware, U.S.A.
WHEREAS, simultaneously with the execution and delivery of
this Agreement, the Subscriber is entering into a subscription agreement
("Subscription Agreement"), between the Issuer and the Subscriber with
respect to the purchase of ten percent (10%) of the Issuer's Class A
common shares (the "Class A Shares"), par value US$0.001 per share, on a
fully diluted basis;
WHEREAS, simultaneously with the execution and delivery of
this Agreement, the Issuer has granted to the Subscriber certain warrants
with respect to the purchase of additional Class A Shares on a fully
diluted basis; and
WHEREAS, pursuant to the terms of the Subscription Agreement
and this Agreement, the Issuer wishes to extend registration rights to
the Subscriber with respect to the public offering of Class A Shares
pursuant to registration statements filed by the Issuer with the
Commission (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
SECTION 1.1 Definitions. The following terms, as used
herein, have the following meanings:
"Affiliate" of any Person means any other Person directly or
indirectly controlling or controlled by or under common control with such
Person. For the purposes of this definition, "control" when used with
respect to any Person, means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies
of such Person, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing,
"Commission" means the United States Securities and Exchange
Commission.
"Effective Demand Registration" means a registration statement
that has been declared or ordered effective in accordance with the rules
of the Commission with respect to the Requested Registration.
"Effective IPO Registration" means the registration statement
that has been declared or ordered effective in accordance with the rule
of the Commission with respect to the initial public offering of the
Class A Shares.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended.
"Initial Public Offering" means the first time a registration
statement filed by the Issuer under the Securities Act in respect of a
firm commitment underwritten public offering of Class A Shares is
declared effective by the Commission and the sale of Class A Shares by
the Issuer in such offering is consummated (other than a registration
statement filed on Form F-4 or Form S-8, or any successor form thereto,
with respect to the issuance of Class A Shares granted or to be granted
to employees or directors of the Issuer).
"Person" means an individual or a corporation, partnership,
association, trust, or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"Piggy-Back Registration" means a Piggy-Back Registration as
defined in Section 2.1.
"Registrable Securities" means any Class A Shares held by the
Subscriber until (i) a registration statement covering such Class A Shares
has been declared effective by the Commission and such Class A Shares
have been disposed of pursuant to such effective registration statement, (ii)
such Class A Shares are sold under circumstances in which all of the
applicable conditions of Rule 144 (or any similar provisions then in
force) under the Securities Act are met or under which they may be sold
pursuant to Rule 144(k) or (iii) such Class A Shares have been otherwise
transferred and may be resold otherwise than pursuant to Section 4 of the
Securities Act without subsequent registration under the Securities Act.
"Registration Rights" means the registration rights applicable
to the Registrable Securities on the terms set forth herein.
"Requested Registration" means the registration of Registrable
Securities pursuant to Section 2.1 herein.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Underwriter" means a securities dealer who purchases any
Registrable Securities as principal and not as part of such dealer's
market-making activities.
ARTICLE II
SECTION 2.1. Registration Rights. (a) Registration Request.
At any time after the completion of the IPO Registration, the Subscriber
shall be entitled to a single, one-time request of the Issuer, in
writing, to effect the registration under the Securities Act of all or
part of the Subscriber's Registrable Securities by specifying the number
of Registrable Securities to be registered and the intended method of
disposition thereof. The Issuer will promptly give written notice (a
"Notice of Requested Registration") of such request to all other holders
of Registrable Securities, and thereupon will use its best efforts to
effect the registration under the Securities Act of
(i) the Registrable Securities which the Issuer has been so
requested to register by the Subscriber, and
(ii) all other Registrable Securities the holders of which
have made written requests to the Issuer for registration thereof within
(30) days after the giving of the Notice of Requested Registration (which
requests shall specify the intended method of disposition thereof),
all to the extent requisite to permit the disposition (in accordance with
the intended methods thereof) of the Registrable Securities so to be
registered. Notwithstanding the foregoing, the Issuer may postpone taking
action with respect to a Requested Registration for a reasonable period
of time after receipt of the original request (not exceeding one hundred
eighty (180) days) if, in the good faith opinion of the Issuer's Board of
Directors, effecting the registration would adversely affect a material
financing, acquisition, disposition of assets or stock, merger or other
comparable transaction or would require the Issuer to make public
disclosure of information the public disclosure of which would have a
material adverse effect upon the Issuer. Subject to Section 2.3, the
Issuer may include in such registration other securities of the same
class as the Registrable Securities for sale for its own account or for
the account of any other Person.
(b) Limitations on Requested Registration. Notwithstanding
anything herein to the contrary, the Issuer shall not be required to
honor a Subscriber's request for a Requested Registration if:
(i) the Subscriber's Requested Registration has resulted
in an Effective Registration;
(ii) such request is received by the Issuer less than 180
days following the effective date of any previous registration statement
filed in connection with a Piggyback Registration, regardless of whether
any holder of Registrable Securities exercised its rights under this
Agreement with respect to such registration, unless participation in such
previous registration was reduced pursuant to Section 2.3 whereby the
number of Registrable Securities actually included in such registration
was not at least fifty percent (50%) of the number of Registrable
Securities requested to be included in such registration.
(c) Preemption of Requested Registration. Notwithstanding
anything to the contrary contained herein, at any time within sixty (60)
days after receiving a written request for a Requested Registration, the
Issuer may elect to effect an underwritten primary registration in lieu
of the Requested Registration if the Issuer's Board of Directors believes
that such primary registration would be in the best interests of the
Issuer or if the managing Underwriter for the Requested Registration
advises the Issuer in writing that in its opinion, in order to sell the
Registrable Securities to be sold, the Issuer should include its own
securities. If the Issuer so elects to effect a primary registration,
the Issuer shall give prompt written notice to all holders of Registrable
Securities of its intention to effect such a registration and shall
afford the Subscriber of the Registrable Securities rights contained in
Section 2.2 with respect to Piggyback Registrations. In the event that
the Issuer so elects to effect a primary registration after receiving a
request for a Requested Registration, the requests for a Requested
Registration shall be deemed to have been withdrawn and the Issuer shall
pay all Registration Expenses (as defined below) in accordance with
Section 3.1.
SECTION 2.2. Piggy-Back Registration. If (but without
obligation to do so) at any time the Issuer proposes to file a
registration statement under the Securities Act with respect to an
offering by the Issuer for its own account or for the account of any
holder of the Class A Shares (other than a registration statement on Form
F-4 or S-8, or any successor form that may be adopted by the Commission,
or a registration statement filed in connection with an exchange offer or
offering of securities solely to the Issuer's existing securityholders),
then the Issuer shall give written notice of such proposed filing to the
Subscriber as soon as practicable (but in no event less than 20 days
before the anticipated filing date), and such notice shall offer the
Subscriber the opportunity to register such number of Class A Shares of
Registrable Securities as the Subscriber may request (a "Piggy-Back
Registration"). Upon written request of the Subscriber given within 10
days after delivery of such notice, the Issuer shall use its best efforts
to cause the managing Underwriter or Underwriters of a proposed
underwritten offering to permit the Registrable Securities requested by
the Subscriber to be included in a Piggy-Back Registration on the same
terms and conditions as any similar securities of the Issuer included in
such offering.
SECTION 2.3. Reduction of Offering. Notwithstanding anything
contained herein, if the managing Underwriter or Underwriters of an
offering described in Section 2.1 or Section 2.2 shall deliver written
advice to the Subscriber of the Registrable Securities proposed to be
included in such offering that (i) the size of the offering that the
Subscriber, the Issuer and other Persons, if any, participating in such
offering intend to make or (ii) the type of securities that the
Subscriber, the Issuer and such other Persons intend to include in such
offering are such that the success of such offering would be materially
and adversely affected by inclusion of the Registrable Securities
requested to be included, then (A) if the size of the offering is the
basis of such managing Underwriter's or Underwriters' advice, the amount
of securities to be offered for the respective accounts of the
Subscribers and such other Persons shall be reduced pro rata (according
to the amount of Registrable Securities and other securities proposed to
be included in such registration) to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing Underwriter or Underwriters; provided that
no such reduction shall affect the amount of securities to be sold by the
Issuer on a primary basis pursuant to such registration; and provided
further that if securities are being offered for the account of Persons
not contractually entitled to registration, then the amount of securities
to be offered for the account of Persons contractually entitled to
registration (including, without limitation, the Subscriber) shall be
reduced only after the amount of securities to be offered on account of
Persons not contractually entitled to registration is reduced by an
amount equal to the total amount of all securities to be offered by
Persons not contractually entitled to registration; and (B) if the type
of securities to be offered is the basis of such managing Underwriter's
or Underwriters' advice, then (x) the Registrable Securities to be
included in such offering shall be reduced as described in clause (A)
above (subject to the provisos in clause (A)) or, (y) if the actions
described in clause (x) would, in the judgment of the managing
Underwriter or Underwriters, be insufficient to substantially eliminate
the adverse effect that inclusion of the Registrable Securities requested
to be included would have on such offering, such Registrable Securities
will be excluded from such offering.
SECTION 2.4. Termination. (a) The Registration Rights
described in Section 2.1 shall terminate upon the occurrence of an
Effective Demand Registration.
(b) The Registration Rights described in Section 2.2 shall
terminate upon the earlier to occur of (i) the date on which the
Subscriber's equity interest in the Issuer falls below five percent (5%),
or (ii) the date on which the conditions of Rule 144(k) under the
Securities Act are satisfied with respect to the Subscriber.
ARTICLE III
SECTION 3.1 Registration Expenses. In connection with the
inclusion of any Registrable Securities of the Subscriber in any
registration statement filed pursuant to Section 2 hereof, the Issuer
shall pay the following registration expenses incurred in connection
therewith (the "Registration Expenses"): (i) all registration and filing
fees, (ii) 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 Registrable Securities), (iii) printing
expenses, (iv) internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), (v) the fees and expenses incurred in connection with
the listing or quotation of the Registrable Securities, (vi) reasonable fees
and disbursements of counsel for the Issuer (which counsel shall also act
as counsel to the Subscriber in connection with such registration) and
customary fees and expenses for independent certified public accountants
retained by the Issuer and (vii) the reasonable fees and expenses of any
special experts retained by the Issuer in connection with such
registration. Except as provided in Section 2.1(c), the Issuer shall
have no obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities, any fees of separate
counsel or any other advisor of the Subscriber, or any out-of-pocket
expenses of the Subscriber (or the agents who manage their accounts).
SECTION 3.2 Further Obligations of the Issuer. In connection
with the inclusion of any Registrable Securities of the Subscriber in any
registration statement filed pursuant to Article II hereof, the Issuer
shall:
(a) furnish to the Subscriber such number of copies of the
related prospectus, including any preliminary prospectus, relating to
such Registrable Securities as the Subscriber may reasonably request;
(b) promptly notify the Subscriber, at any time when a
prospectus relating to such Registrable Securities is required to be
delivered under the Securities Act and the rules and regulations of the
Commission thereunder, of any event as a result of which the prospectus
included in the registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then existing;
(c) furnish to the Subscriber written notice of the
initiation and completion of each registration of any class of the
Issuer's common or preferred stock pursuant to any registration statement
filed pursuant to Article II hereof;
(d) prepare and file with the Commission such amendments and
supplements to any registration statement filed pursuant to Article II
hereof; and
(e) furnish to the Subscriber, as soon as practicable, after
the end of the 12 month period beginning at the end of the fiscal quarter
of the Issuer during which the "effective date" (as defined in Rule 158
under the Securities Act or any successor rule or regulation) of any
registration statement filed pursuant to Article II hereof occurs, an
earnings statement (which need not be audited) of the Issuer, covering
such 12 month period, which shall satisfy the provisions of Section 11(a)
of the Securities Act or Rule 158 thereunder.
ARTICLE IV
SECTION 4.1. Indemnification by the Issuer. The Issuer
agrees to indemnify and hold harmless the Subscriber, its officers,
directors and agents, and each Person, if any, who controls such
Subscriber within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses,
claims, damages and liabilities caused by any untrue statement or alleged
untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Securities (as
amended or supplemented if the Issuer shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused by 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 such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information furnished in writing to the
Issuer by the Subscriber or on the Subscriber's behalf expressly for use
therein. The Issuer also agrees to indemnify each Underwriter of the
Registrable Securities, their officers and directors and each person who
controls such Underwriter on substantially the same basis as that of the
indemnification of the Subscriber provided in this Section 4.1.
SECTION 4.2 Indemnification by the Subscriber. The
Subscriber agrees to indemnify and hold harmless the Issuer, its
officers, directors and agents and each Person, if any, who controls the
Issuer within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Issuer to the Subscriber, but only with reference to
information related to the Subscriber furnished in writing by the
Subscriber or on the Subscriber's behalf expressly for use in any
registration statement or prospectus relating to the Registrable
Securities, or any amendment or supplement thereto, or any preliminary
prospectus. In case any action or proceeding shall be brought against
the Issuer or its officers, directors or agents or any such controlling
person, in respect of which indemnity may be sought against the
Subscriber, the Subscriber shall have the rights and duties given to the
Issuer, and the Issuer or its officers, directors or agents or such
controlling person shall have the rights and duties given to the
Subscriber, by the preceding paragraph. The Subscriber also agrees to
indemnify and hold harmless each Underwriter of the Registrable
Securities, its officers and directors and each person who controls such
Underwriter on substantially the same basis as that of the
indemnification of the Issuer provided in this Section 4.2.
SECTION 4.3. Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be
sought pursuant to Section 4.1 or 4.2, such person (an "Indemnified
Party") shall promptly notify the person against whom such indemnity may
be sought (the "Indemnifying Party") in writing and the Indemnifying
Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Party, and shall
assume the payment of all fees and expenses. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded
parties) include both the Indemnified Party and the Indemnifying Party
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any
time for all such Indemnified Parties, and that all such fees and
expenses shall be reimbursed as they are incurred. No Indemnifying Party
shall, without the prior written consent of the Indemnified Party, effect
any settlement of any pending or threatened proceeding in respect of with
any Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party, unless such
settlement includes an unconditional release of such Indemnified Party
from all liability arising out of such proceeding.
SECTION 4.4. Contribution. If the indemnification provided
for in this Article IV is unavailable to the Indemnified Parties in
respect of any losses, claims, damages or liabilities referred to herein,
then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or
liabilities (i) as between the Issuer and the Subscriber on the one hand
and the Underwriters, if any, on the other, in such proportion as is
appropriate to reflect the relative benefits received by the Issuer and
the Subscriber on the one hand and the Underwriters on the other from the
offering of the Securities, or if such allocation is not permitted by
applicable law, in such proportion as is appropriate to reflect not only
the relative benefits but also the relative fault of the Issuer and the
Subscriber on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations and (ii) as between the Issuer on the one hand
and the Subscriber on the other, in such proportion as is appropriate to
reflect the relative fault of the Issuer and of the Subscriber in
connection with such statements or omissions, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuer and the Subscriber on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total proceeds
from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Issuer and the Subscriber bear
to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of
the prospectus. The relative fault of the Issuer and the Subscriber on
the one hand and of the Underwriters 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 the Issuer and the
Subscriber or by the Underwriters. The relative fault of the Issuer on
the one hand and of the Subscriber 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.
The Issuer and the Subscriber agree that it would not be just
and equitable if contribution pursuant to this Section 4.4 were
determined by pro rata allocation (even if the Underwriters, if any, were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or
payable by an Indemnified Party as a result of the losses, claims,
damages or liabilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 4.4, no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Class A Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or
alleged omission, and the Subscriber shall not be required to contribute
any amount in excess of the amount by which the total price at which the
Class A Shares of the Subscriber were offered to the public exceeds the
amount of any damages which the Subscriber has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Subscriber's obligations to contribute
pursuant to this Section 4.4 are several in proportion to the proceeds of
the offering received by the Subscriber to the total proceeds of the
offering and not joint.
SECTION 4.5. Conflict. Notwithstanding anything contained
in this Article IV, to the extent that the provisions on indemnification
and contribution contained in any underwriting or similar agreement
entered into connection with an underwritten public offering in which
Registrable Securities are being sold are in conflict with the foregoing
provisions, the provisions in the underwriting or similar agreement shall
control.
ARTICLE V
SECTION 5.1. Participation in Underwritten Registrations. No
Person may participate in any underwritten registration hereunder unless
such Person (a) agrees to sell such Person's securities on the basis
provided in any underwriting arrangements approved by the Issuer and
(b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and this
Agreement.
SECTION 5.2 Rule 144. The Issuer covenants that it will file
any reports required to be filed by it under the Securities Act and the
Exchange Act and that it will take such further action as the Subscriber
may reasonably request, all to the extent required from time to time to
enable the Subscriber to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided
by (a) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (b) any similar rule or regulation hereafter
adopted by the Commission. Upon the request of the Subscriber, the Issuer
will deliver to the Subscriber a written statement as to whether it has
complied with such requirements.
SECTION 5.3. Holdback Agreements. (a) Restrictions on Public
Sale by the Subscriber. To the extent not inconsistent with applicable
law, the Subscriber whose securities are included in a registration
statement agrees not to effect any public sale or distribution of the
issue being registered or a similar security of the Issuer, or any
securities convertible into or exchangeable or exercisable for such
securities, including a sale pursuant to Rule 144 under the Securities
Act, during the 30 days prior to, and during the 180-day period beginning
on, the effective date of such registration statement (except as part of
such registration), if and to the extent requested by the Issuer in the
case of a non-underwritten public offering or if and to the extent
requested by the managing Underwriter or Underwriters in the case of an
underwritten public offering.
(b) Restrictions on Public Sale by the Issuer and
Others. The Issuer and its Affiliates agree (i) if the Subscriber
exercises the registration rights set forth in this Agreement with
respect to any registration statement filed by the Issuer not to effect
any public sale or distribution of any securities similar to those being
registered in accordance with Section 2.1 or Section 2.2 hereof, or any
securities convertible into or exchangeable or exercisable for such
securities, during the 30 days prior to, and during the 180-day period
beginning on, the effective date of any registration statement (except as
part of such registration) or the commencement of a public distribution
of Registrable Securities if and to the extent requested by the managing
Underwriter or Underwriters in the case of an underwritten public
offering or other public distribution; and (ii) that any agreement
entered into after the date of the agreement pursuant to which the Issuer
issues or agrees to issue any privately placed securities shall contain a
provision under which holders of such securities agree not to effect any
public sale or distribution of any such securities during the periods
described in (i) above, in each case including a sale pursuant to Rule
144 under the Securities Act (except as part of any such registration, if
permitted); provided, however, that the provisions of this paragraph (b)
shall not prevent the conversion or exchange of any securities pursuant
to their terms into or for other securities.
SECTION 5.4 Notices. All notices, requests and other
communications hereunder must be in writing and will be deemed to have
been duly given only if delivered personally or by facsimile transmission
or mailed (first class postage prepaid) to the parties at the following
addresses or facsimile numbers:
If to the Issuer
▇▇▇▇▇.▇▇▇ Corporation
20th Floor, Citicorp Centre
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ SAR
Telephone No.: (▇▇▇)▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇▇-▇▇▇▇
Attn: Chief Executive Officer
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III, Esq.
If to the Subscriber
America Online, Inc.
▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇.
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: General Counsel
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given
upon delivery, (ii) if delivered by facsimile transmission to the facsimile
number as provided in this Section, be deemed given upon receipt (and
confirmed by a copy sent the same day in accordance with clause (i) or
(iii), and (iii) if delivered by mail in the manner described above to the
address as provided in this Section, be deemed given upon receipt (in
each case regardless of whether such notice, request or other
communication is received by any other Person to whom a copy of such
notice is to be delivered pursuant to this Section). Any party from time
to time may change its address, facsimile number or other information for
the purpose of notices to that party by giving notice specifying such
change to the other parties hereto.
SECTION 5.5. Entire Agreement. This Agreement supersedes all
prior discussions and agreements between the parties with respect to the
subject matter hereof, and contains the sole and entire agreement between
the parties hereto with respect to the subject matter hereof.
SECTION 5.6. Amendment. This Agreement may be amended,
supplemented or modified only by a written instrument (which may be
executed in any number of counterparts) duly executed by or on behalf of
each of the Issuer and the Subscriber.
SECTION 5.7. Waiver. Subject to Section 5.8, any term or
condition of this Agreement may be waived at any time by the party that
is entitled to the benefit thereof, but no such waiver shall be effective
unless set forth in a written instrument duly executed by or on behalf of
the party waiving such term or condition. No waiver by any party of any
term or condition of this Agreement, in any one or more instances, shall
be deemed to be or construed as a waiver of the same term or condition of
this Agreement on any future occasion.
SECTION 5.8. Consents and Waivers by the Subscriber. Any
consent of a Subscriber and any waiver by a Subscriber of any provision
of this Agreement, shall be in writing (which may be executed in any
number of counterparts), and any such consent or waiver so given or taken
will be binding on any subsequent assignee or transferee of the
Subscriber.
SECTION 5.9. No Third Party Beneficiary. The terms and
provisions of this Agreement are intended solely for the benefit of each
party hereto, their respective successors or permitted assigns and any
other Subscriber of Registrable Securities, and it is not the intention
of the parties to confer third-party beneficiary rights upon any other
Person other than any Person entitled to Indemnification hereunder.
SECTION 5.10. Successors and Assigns. This Agreement is
binding upon, inures to the benefit of and is enforceable by the parties
hereto and their respective successors and assigns.
SECTION 5.11. Headings. The headings used in this Agreement
have been inserted for convenience of reference only and do not define or
limit the provisions hereof.
SECTION 5.12. Invalid Provisions. If any provision of this
Agreement is held to be illegal, invalid or unenforceable under any
present or future law, and if the rights or obligations of any party
hereto under this Agreement will not be materially and adversely affected
thereby, (i) such provision will be fully severable, (ii) this Agreement
will be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part hereof, (iii) the
remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal,
invalid or unenforceable provision, there will be added automatically as
a part of this Agreement a legal, valid and enforceable provision as
similar in terms to such illegal, invalid or unenforceable provision as
may be possible.
SECTION 5.13. Remedies. Except as otherwise expressly
provided for herein, no remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other
remedy, and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or otherwise. The election of
any one or more remedies by any party hereto shall not constitute a
waiver by any such party of the right to pursue any other available
remedies.
SECTION 5.14 Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
SECTION 5.15. Counterparts. This Agreement may be executed
in any number of counterparts, each of which will be deemed an original,
but all of which together will constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
▇▇▇▇▇.▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
Title: Attorney-In-Fact
AMERICA ONLINE, INC.
By:
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Name:
Title: