Registration Rights Agreement - Net2Phone Inc. and Yahoo! Inc.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into as
of March 30, 2000 by and between Net2Phone, Inc., a Delaware corporation (the
"Company"), and Yahoo! Inc, a Delaware corporation (the "Stockholder").
RECITALS
The Company and the Stockholder have entered into a Stock Exchange
Agreement of even date herewith (the "Exchange Agreement"), which provides for
the exchange of 2,777,778 shares of the Company's Common Stock (the "Shares")
for 806,452 shares of the Stockholder's Common Stock. In connection with the
Stockholder's execution of the Exchange Agreement, the Stockholder desires to
obtain and the Company has agreed to grant certain registration rights to the
Stockholder with respect to the Shares.
AGREEMENT
The parties hereby agree as follows:
1. REGISTRATION RIGHTS.
1.1 DEFINITIONS. For purposes of this Section 1:
(a) The terms "register," "registered," and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Securities Act
of 1933, as amended (the "Securities Act"), and the subsequent declaration or
ordering of the effectiveness of such registration statement or document.
(b) The term "Registrable Securities" means:
(i) the Shares; and
(ii) any other shares of Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security which is issued as) a dividend or other distribution
with respect to, or in connection with a stock split, or in exchange for or in
replacement of, the Shares, excluding in all cases, however, any Registrable
Securities sold by a person in a transaction in which his or her rights under
this Agreement are not assigned; provided, however, that Common Stock or other
securities shall only be treated as Registrable Securities if and so long as
they have not been sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction.
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(c) The term "Holder" means the Stockholder, its
successors and assigns.
(d) The term "SEC" means the Securities and Exchange
Commission.
1.2 REQUEST FOR REGISTRATION.
(a) If one or more of the following events shall
occur: (i) the failure of the Company and the Stockholder to enter into on or
before April 30, 2000 a definitive commercial agreement (the "Commercial
Agreement") pursuant to that certain letter of intent of even date herewith
between the parties hereto, in form and substance reasonably satisfactory to
such parties, after negotiating in good faith with the intention of completing
such agreement, (ii) the termination by Yahoo! of the Commercial Agreement
following a breach of such agreement by the Company, in accordance with the
terms and conditions thereof, or (iii) the effective date of a "Change in
Control" of the Company (as defined below), and following such occurrence, the
Holder shall send to the Company a written request that the Company file a
registration statement under the Securities Act covering the registration of any
or all of the Registrable Securities, then the Company shall use its best
efforts to effect as expeditiously as may be practicable the registration under
the Securities Act of all Registrable Securities which the Holder requests to be
registered. Notwithstanding the foregoing, the Company shall not be required to
effect any registration if the Registrable Securities that the Company shall
have been requested to register shall, in the aggregate, have a current market
value of less than (x) $5,000,000 if the Registrable Securities are to be
registered on Form S-1 (or any successor form thereto) or (y) $1,000,000 if the
Registrable Securities are to be registered on Form S-3 (or any successor form
thereto). The Holder shall have the right to only one (1) registration pursuant
to this Section 1.2(a). For purposes of this Agreement, a "Change in Control" of
the Company shall mean the sale, conveyance or other disposition by the Company
of all or substantially all of its property or business or the Company's merger
with or into or consolidation with any other corporation (other than a
wholly-owned subsidiary corporation) or the consummation of any other
transaction or series of related transactions in which more than 50% of the
voting power of the Company is disposed of, or the execution by the Company of
any binding agreement providing for any of the foregoing transactions: provided,
however, that the sale, disposition or conveyance of all or a portion of the
Company's stock or assets to, or the merger or consolidation of the Company
with, AT&T Corp. or any of its wholly owned subsidiaries, or the execution of a
binding agreement providing for the foregoing with AT&T Corp. or any of its
wholly owned subsidiaries, shall not constitute a Change in Control for purposes
of this Section 1.2.
(b) If the Holder intends to distribute the
Registrable Securities covered by their request by means of an underwriting, it
shall so advise the Company as a part of its request made pursuant to this
Section 1.2. The underwriter will be selected by the Holder, subject to the
Company's approval, which shall not be unreasonably
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withheld. Thereafter, the Holder and the Company shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting.
(c) Notwithstanding the foregoing, if the Company
shall furnish to the Holder a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors of the
Company, it would be materially detrimental to the Company and its stockholders
for such registration statement to be filed and it is therefore essential to
defer the filing of such registration statement, the Company shall have the
right to defer such filing for a reasonable period of time (but not more than 90
days) after receipt of the request of the Holder (the "Demand Blackout Period").
The Company shall give the Holder prompt written notice of any such
determination to defer filing in the form of a certificate signed by an
executive officer of the Company. The Company shall promptly notify the Holder
of the expiration or earlier termination of the Demand Blackout Period.
1.3 COMPANY REGISTRATION. If (but without any obligation to do
so) the Company proposes to register (including for this purpose a registration
effected by the Company for any Company stockholder other than the Holder) any
of its stock under the Securities Act in connection with the public offering of
such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Company stock plan or a transaction
covered by Rule 145 under the Securities Act, a registration in which the only
stock being registered is Common Stock issuable upon conversion of debt
securities which are also being registered, or any registration on any form
which does not include substantially the same information as would be required
to be included in a registration statement covering the sale of the Registrable
Securities), the Company shall, at such time, promptly give the Holder written
notice of such registration. Upon the written request of the Holder given within
twenty (20) days after mailing of such notice by the Company, the Company shall,
subject to the provisions of Section 1.5, cause to be registered under the
Securities Act all of the Registrable Securities that the Holder has requested
to be registered. Nothing in this Section 1.3 shall create any liability on the
part of the Company or any other person to the Holder if the Company, for any
reason, decides not to file a registration statement proposed to be filed
pursuant to this Section 1.3 or to withdraw such registration statement
subsequent to its filing (except for the Company's obligation to pay the
expenses in connection therewith as provided in Section 1.11), regardless of any
action whatsoever that the Holder may have taken, whether as a result of the
issuance by the Company of any notice under this Section 1.3. or otherwise.
1.4 OBLIGATIONS OF THE COMPANY. Whenever required under this
Section 1 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration
statement with respect to such Registrable Securities and use its best efforts
to cause such registration
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statement to become effective, and, upon the request the Holder, keep such
registration statement effective for up to 90 days (20 days in the case of a
registration statement filed on Form S-1 under the Securities Act) or such
shorter period during which the Holders complete the distribution described in
the registration statement relating thereto, whichever first occurs.
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement for up to 90 days;
(c) Cause all such Registrable Securities registered
pursuant hereunder to be listed on each securities exchange on which similar
securities issued by the Company are then listed;
(d) Furnish to the Holder participating in the
registration such reasonable number of copies of the registration statement,
preliminary prospectus, final prospectus and such other documents as the Holder
may reasonably request;
(e) Use its best efforts to register and qualify the
securities covered by such registration statement under such securities or Blue
Sky laws of such jurisdictions as shall be reasonably requested by the Holder,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions;
(f) Notify the Holder at any time when a prospectus
relating thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in such
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, and at the request of the Holder, prepare and
furnish to the Holder a reasonable number of copies of a supplement to or an
amendment of such prospectuses as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectuses shall not include
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein no misleading
in light of the circumstances then existing;
(g) Provide a transfer agent and registrar for all
Registrable Securities registered pursuant hereunder not later than the
effective date of such registration.
(h) Use best efforts to cause the transfer agent to
remove restrictive legends on certificates representing the Registrable
Securities covered by a
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registration statement hereunder, as the Company determines to be appropriate,
upon advice of counsel;
(i) In the event of any underwritten public offering
hereunder, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of such
offering. The Holder shall also enter into and perform its obligations under
such an agreement; and
(j) Use its best efforts to furnish, at the request
of the Holder, on the date that the Registrable Securities are delivered to the
underwriters for sale in connection with a registration pursuant to this Section
1, if such securities are being sold through underwriters, or, if such
securities are not being sold through underwriters, on the date that the
registration statement with respect to such securities becomes effective, (i) an
opinion, dated such date, of the counsel representing the Company for the
purposes of such registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holder and (ii) a letter dated such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent certified public accountants to
underwriters in an underwritten public offering, addressed to the underwriters,
if any, and to the Holder.
1.5 UNDERWRITING REQUIREMENTS. In connection with any offering
involving an underwriting of shares of the Company's capital stock, the Company
shall not be required under Section 1.3 to include any of the Holder's
securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Company and the underwriters selected by it (or by
other persons entitled to select the underwriters), and then only in such
quantity as the underwriters determine in their sole discretion will not
jeopardize the success of the offering by the Company. If the total amount of
securities, including Registrable Securities, requested by stockholders to be
included in such offering exceeds the amount of securities sold other than by
the Company that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering (the securities so
included to be apportioned pro rata among the selling stockholders according to
the total amount of securities entitled to be included therein owned by each
selling stockholder or in such other proportions as shall mutually be agreed to
by such selling stockholders). The Holder shall not be entitled to participate
in an underwritten offering unless the Holder enters into, and performs its
obligations under, one or more underwriting agreements and any related
agreements and documents (including an escrow agreement and/or a power of
attorney with respect to the disposition of the Registrable Securities), in the
form that the Holder shall agree to with the lead managing underwriter of the
transaction. If the Holder disapproves of the terms of any underwriting, it may
elect, prior to the execution of any underwriting agreement, to withdraw
therefrom by written notice to the Company and the lead managing underwriter.
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1.6 DELAY OF REGISTRATION. The Holder shall not have any right
to obtain or seek an injunction restraining or otherwise delaying any
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.7 FURNISH INFORMATION. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Section 1
with respect to the Registrable Securities of the Holder that the Holder shall
furnish to the Company such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of the Holder's Registrable
Securities.
1.8 INDEMNIFICATION. In the event any Registrable Securities
are included in a registration statement under this Section 1:
(a) To the extent permitted by law, the Company will
indemnify and hold harmless the Holder and each person, if any, who controls the
Holder within the meaning of the Securities Act or the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), against any losses, claims, damages,
or liabilities (joint or several) to which they may become subject, under the
Securities Act, the Exchange Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any final prospectus contained therein or any amendments or
supplements thereto, (ii) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein not misleading, or (iii) any violation or alleged violation by the
Company of the Securities Act, the Exchange Act, any state securities law or any
rule or regulation promulgated under the Securities Act, the Exchange Act or any
state securities law; and the Company will pay, as incurred, any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this subsection 1.8(a) shall not apply
to amounts paid in settlement of any such loss, claim, damage, liability, or
action if such settlement is effected without the consent of the Company, which
consent shall not be unreasonably withheld, nor shall the Company be liable in
any such case for any such loss, claim, damage, liability, or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder or controlling person.
(b) To the extent permitted by law, the Holder will
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the registration statement, each person, if any, who
controls the Company within the meaning of the Securities Act or the Exchange
Act against any losses, claims, damages,
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or liabilities (joint or several) to which any of the foregoing persons may
become subject, under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages, or liabilities (or actions
in respect thereof) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by such Holder
expressly for use in connection with such registration; and each such Holder
will pay, as incurred, any legal or other expenses reasonably incurred by any
person intended to be indemnified pursuant to this subsection 1.8(b), in
connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.8(b) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability or action if such settlement is effected
without the consent of the Holder, which consent shall not be unreasonably
withheld; provided that in no event shall any indemnity under this subsection
1.8(b) exceed the net proceeds from the offering received by the Holder, unless
such liability arises out of or is based on the willful conduct of the Holder.
(c) Promptly after receipt by an indemnified party
under this Section 1.8 of notice of the commencement of any action (including
any governmental action), such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 1.8,
deliver to the indemnifying party a written notice of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if prejudicial to its ability to defend such
action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.8, but the omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 1.8.
(d) If the indemnification provided in this Section
1.8 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any loss, liability, claim, damage or expense
referred to therein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, liability, claim, damage or
expense in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand and of the indemnified party on the other
in connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be
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determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the indemnified
party and the parties' relative intent, knowledge, access to information, and
opportunity to correct or prevent such statement or omission.
(e) The obligations of the Company and the Holder
under this Section 1.8 shall survive the completion of any offering of
Registrable Securities in a registration statement under this Section 1, and
otherwise.
1.9 REPORTS UNDER SECURITIES EXCHANGE ACT OF 1934. With a view
to making available to the Holder the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit the Holder to sell securities of the Company to the public without
registration, the Company agrees to use its best efforts to:
(a) make and keep public information available, as
those terms are understood and defined in SEC Rule 144, at all times;
(b) file with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the
Exchange Act; and
(c) furnish to the Holder, so long as the Holder owns
any Registrable Securities, forthwith upon request (i) a written statement by
the Company that it has complied with the reporting requirements of SEC Rule
144, the Securities Act and the Exchange Act, (ii) a copy of the most recent
annual or quarterly report of the Company and such other reports and documents
so filed by the Company, and (iii) such other information as may be reasonably
requested in availing the Holder of any rule or regulation of the SEC which
permits the selling of any such securities without registration.
1.10 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause
the Company to register Registrable Securities pursuant to this Section 1 may be
assigned by a Holder to a transferee or assignee of all of the Holder's
Registrable Securities, provided the Company is, within a reasonable time after
such transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Securities Act.
1.11 EXPENSES OF REGISTRATION.
(a) DEMAND REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications pursuant to Section 1.2, including
(without limitation) all registration,
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filing and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the Holder shall be borne by the Company;
provided, however, that the Company shall not be required to pay for any
expenses of any registration proceeding begun pursuant to Section 1.2 if the
registration request is subsequently withdrawn at the request of the Holder,
unless, at the time of such withdrawal, the Holder has learned of a material
adverse change in the condition, business, or prospects of the Company from that
known to the Holder at the time of its request and has withdrawn the request
with reasonable promptness upon obtaining knowledge of such material adverse
change.
(b) COMPANY REGISTRATION. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications of Registrable Securities pursuant to
Section 1.3 for the Holder, including (without limitation) all registration,
filing, and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company and the reasonable fees and
disbursements of one counsel for the Holder selected by it with the approval of
the Company, which approval shall not be unreasonably withheld, shall be borne
by the Company.
1.12 TERMINATION OF REGISTRATION RIGHTS. The rights granted
under this Section 1 shall terminate upon the earlier of (a) two years following
the date of this Agreement, or (b) at such time as the Holder may sell all of
its Registrable Securities in any single three month period pursuant to Rule 144
(or such successor rule as may be adopted).
2. MISCELLANEOUS.
2.1 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended or waived with the written consent of the Company and the Holders of a
majority of the Shares then held by all Holders. Any amendment or waiver
effected in accordance with this Section 2.1 shall be binding upon the parties
and their respective successors and assigns.
2.2 SUCCESSORS AND ASSIGNS. Subject to the provisions of
Section 1.10, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement.
2.3 GOVERNING LAW. This Agreement and all acts and
transactions pursuant hereto and the rights and obligations of the parties
hereto shall be governed, construed and interpreted in accordance with the laws
of the State of New York, without giving effect to principles of conflicts of
law.
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2.4 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
2.5 TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
2.6 NOTICES. Any notice required or permitted by this
Agreement shall be in writing and shall be deemed sufficient upon receipt, when
delivered personally or by courier, overnight delivery service or confirmed
facsimile, or 48 hours after being deposited in the regular mail as certified or
registered mail (airmail if sent internationally) with postage prepaid, if such
notice is addressed to the party to be notified at such party's address or
facsimile number as set forth below (or as subsequently modified by written
notice):
To the Holder: Yahoo! Inc.
3420 Central Expressway
Santa Clara, CA 95051
Attn: Senior Vice President, Corporate Development
Facsimile: (408) 328-7939
With a copy at the same address to the
attention of the General Counsel, and a copy
to:
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
Attn.: Steven J. Tonsfeldt
Keith A. Miller
Facsimile: (415) 233-8386
To the Company: Net2Phone, Inc.
171 Main Street
Hackensack, New Jersey 07601
Attn: Chief Executive Officer
Facsimile: (___) ____________
With a copy to:
Kirkland & Ellis
Aon Center
200 East Randolph Drive
Chicago, Illinois 60601
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Attn: Richard W. Porter
Facsimile: (312) 861-2200
2.7 SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith, in order to maintain the economic
position enjoyed by each party as close as possible to that under the provision
rendered unenforceable. In the event that the parties cannot reach a mutually
agreeable and enforceable replacement for such provision, then (i) such
provision shall be excluded from this Agreement, (ii) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (iii)
the balance of the Agreement shall be enforceable in accordance with its terms.
2.8 ENTIRE AGREEMENT. This Agreement is the product of all of
the parties hereto, and constitutes the entire agreement between such parties
pertaining to the subject matter hereof, and merges all prior negotiations and
drafts of the parties with regard to the transactions contemplated herein. Any
and all other written or oral agreements existing between the parties hereto
regarding such transactions are expressly canceled.
2.9 ADVICE OF LEGAL COUNSEL. Each party acknowledges and
represents that, in executing this Agreement, it has had the opportunity to seek
advice as to its legal rights from legal counsel and that the person signing on
its behalf has read and understood all of the terms and provisions of this
Agreement. This Agreement shall not be construed against any party by reason of
the drafting or preparation thereof.
2.10 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any party to this Agreement, upon any breach
or default of the other party, shall impair any such right, power or remedy of
such non-breaching party nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to any Holder, shall be
cumulative and not alternative.
2.11 THIRD PARTIES. Nothing in this Agreement, express or
implied, is intended to confer upon any party, other than the parties hereto,
and their respective successors and assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement, except as expressly
provided herein.
2.12 PARITY OF RIGHTS. The registration rights granted to the
Holder under this Agreement are not intended by the parties to be senior to any
of the registration
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rights granted to holders of the Company's capital stock under that certain
Series A Preferred Shareholder Registration Rights Agreement dated as of May 13,
1999, but rather to rank on a pari passu basis with such rights. The parties
agree to interpret the terms of this Agreement in a manner consistent with the
foregoing intention.
[Signature Page Follows]
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The parties have executed this Agreement as of the date first above
written.
NET2PHONE, INC.
By: /s/ Howard Balter
Title: Chief Executive Officer
Address: 171 Main Street
Hackensack, NJ 07601
YAHOO! INC.
By: /s/ Jeff Mallett
Title: President and Chief
Operating Officer
Address: 3420 Central Expressway
Santa Clara, CA 95051