Registration Rights Agreement - Open Market Inc. and Theddingworth International Ltd.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of May 25, 2001 between
Theddingworth International Limited ("Purchaser") and Open Market, Inc. (the
"Company").
WHEREAS, simultaneously with the execution and delivery of this
Agreement, the parties shall enter into the Common Stock Purchase Agreement,
dated as of the date hereof, (the "Purchase Agreement") pursuant to which the
Purchaser has committed to purchase up to $40,000,000 of the Company's Common
Stock (terms not defined herein shall have the meanings ascribed to them in the
Purchase Agreement) and the Warrant; and
WHEREAS, the execution and delivery of this Agreement and granting to the
Purchaser of the registration rights set forth herein with respect to the Shares
is a component part of the transaction contemplated under the Purchase
Agreement.
NOW, THEREFORE, the parties hereto mutually agree as follows:
SECTION 1. REGISTRABLE SECURITIES. As used herein the term "Registrable
Security" means all Shares that (i) have not been sold under the Registration
Statement or such other registration statement covering the Registrable
Securities, (ii) have not been sold under circumstances under which all of the
applicable conditions of Rule 144 (or any similar provision then in force) under
the Securities Act ("Rule 144") are met, (iii) have not been otherwise
transferred to persons who may trade such Shares without restriction under the
Securities Act, and the Company has delivered a new certificate or other
evidence of ownership for such Shares not bearing a restrictive legend, or (iv)
may not be sold without any time, volume or manner limitations pursuant to Rule
144(k) (or any similar provision then in effect) under the Securities Act. In
the event of any merger, reorganization, consolidation, recapitalization or
other change in corporate structure affecting the Common Stock, such adjustment
shall be deemed to be made in the definition of "Registrable Security" as is
appropriate in order to prevent any dilution or enlargement of the rights
granted pursuant to this Agreement.
SECTION 2. RESTRICTIONS ON TRANSFER. The Purchaser acknowledges and
understands that in the absence of an effective Registration Statement
authorizing the resale of the Shares as provided herein, the Shares are
"restricted securities" as defined in Rule 144. The Purchaser understands that
no disposition or transfer of the Shares may be made by Purchaser in the absence
of (i) an opinion of counsel to the Purchaser, in form and substance reasonably
satisfactory to the Company, that such transfer may be made without registration
under the Securities Act or (ii) such registration.
With a view to making available to the Purchaser the benefits of Rule
144, the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule 144; and
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(b) file with the Commission in a timely manner all reports and
other documents required to be filed by the Company pursuant to Section
13 or 15(d) under the Exchange Act; and, if at any time it is not
required to file such reports but in the past had been required to or did
file such reports, it will, upon the request of the Purchaser, make
available other information as required by, and so long as necessary to
permit sales of, its Registrable Securities pursuant to Rule 144.
SECTION 3. REGISTRATION RIGHTS WITH RESPECT TO THE SHARES.
(a) The Company agrees that it will use its commercially reasonable
best efforts to prepare and file with the Securities and Exchange
Commission ("Commission") a registration statement (on Form S-3 and/or
S-1, or other appropriate form of registration statement) under the
Securities Act (the "Registration Statement"), at the sole expense of the
Company (except as provided in Section 3(c) hereof), so as to permit a
public offering and resale of the Shares under the Securities Act by
Purchaser.
(b) The Company shall use its commercially reasonable best efforts
to cause the Registration Statement to become effective. The Company will
notify Purchaser of the effectiveness of the Registration Statement
within one Trading Day of such event.
(c) The Company will maintain the Registration Statement or
post-effective amendment filed under this Section 3 hereof effective
under the Securities Act until the earliest of (i) the date that all of
the Registrable Securities have been disposed of pursuant to the
Registration Statement or such other registration statement covering the
Registrable Securities, (ii) the date that all of the Registrable
Securities have been sold pursuant to the Registration Statement or such
other registration statement covering the Registrable Securities, (iii)
the date that all of the Registrable Securities have been otherwise
transferred to persons who may trade such shares without restriction
under the Securities Act, and the Company has delivered a new certificate
or other evidence of ownership for such Shares not bearing a restrictive
legend, or (iv) the date that all of the Registrable Securities may be
sold without any time, volume or manner limitations pursuant to Rule
144(k) or any similar provision then in effect under the Securities Act
in the opinion of counsel to the Company, which counsel shall be
reasonably acceptable to the Purchaser (the "Effectiveness Period").
(d) All fees, disbursements and out-of-pocket expenses and costs
incurred by the Company in connection with the preparation and filing of
the Registration Statement under subparagraph 3(a) and in complying with
applicable securities and Blue Sky laws (including, without limitation,
all attorneys' fees of the Company) shall be borne by the Company. The
Purchaser shall bear the cost of underwriting and/or brokerage discounts,
fees and commissions, if any, applicable to the Shares being registered
and the fees and expenses of its counsel.
(e) The Purchaser and its counsel shall have a reasonable period, to
review the proposed Registration Statement (which reasonable period shall
not exceed five Trading Days) or any amendment thereto (which reasonable
period shall not exceed two
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Trading Days), prior to filing with the Commission, and the Company shall
provide the Purchaser with copies of any comment letters received from
the Commission with respect thereto within two (2) Trading Days of
receipt thereof.
(f) The Company shall make reasonably available for inspection by
Purchaser, any underwriter participating in any disposition pursuant to
the Registration Statement, and any attorney, accountant or other agent
retained by the Purchaser or any such underwriter all relevant financial
and other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and cause the Company's officers, directors
and employees to supply all information reasonably requested by the
Purchaser or any such underwriter, attorney, accountant or agent in
connection with the Registration Statement, in each case, as is customary
for similar due diligence examinations; PROVIDED, HOWEVER, that all
records, information and documents that are designated in writing by the
Company, in good faith, as confidential, proprietary or containing any
material non-public information shall be kept confidential by the
Purchaser and any such underwriter, attorney, accountant or agent, unless
such disclosure is made pursuant to judicial process in a court
proceeding (after first giving the Company an opportunity promptly to
seek a protective order or otherwise limit the scope of the information
sought to be disclosed) or is required by law, or such records,
information or documents become available to the public generally or
through a third party not in violation of an accompanying obligation of
confidentiality. If the foregoing inspection and information gathering
would otherwise disrupt the Company's conduct of its business, such
inspection and information gathering shall, to the maximum extent
possible, be coordinated on behalf of the Purchaser and the other parties
entitled thereto by one firm of counsel designed by and on behalf of the
majority in interest of Purchaser and other parties.
(g) The Company shall qualify any of the Shares for sale in such
states as the Purchaser reasonably designates and shall furnish
indemnification in the manner provided in Section 6 hereof. However, the
Company shall not be required to qualify in any state which will require
an escrow or other restriction relating to the Company and/or the
sellers, or which will require the Company to qualify to do business in
such state or require the Company to file therein any general consent to
service of process.
(h) The Company at its expense will supply the Purchaser with copies
of the Registration Statement and the final prospectus included therein
(the "Prospectus") and other related documents in such quantities as may
be reasonably requested by the Purchaser.
(i) The Company shall not be required by this Section 3 to include
the Purchaser's Shares in any Registration Statement which is to be filed
if, in the opinion of counsel for both the Purchaser and the Company (or,
should they not agree, in the opinion of another counsel experienced in
securities law matters acceptable to counsel for the Purchaser and the
Company) the proposed offering or other transfer as to which such
registration is requested is exempt from applicable federal and state
securities laws and would result in all purchasers or transferees
obtaining securities which are not "restricted securities", as defined in
Rule 144 under the Securities Act.
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(j) If at any time or from time to time after the effective date of
the Registration Statement, the Company notifies the Purchaser in writing
of the existence of a Potential Material Event (as defined in Section
3(k) below), the Purchaser shall not offer or sell any Shares or engage
in any other transaction involving or relating to Shares, from the time
of the giving of notice with respect to a Potential Material Event until
the Purchaser receives written notice from the Company that such
Potential Material Event either has been disclosed to the public or no
longer constitutes a Potential Material Event (the "Suspension Period").
Notwithstanding anything herein to the contrary, if a Suspension Period
occurs at any time during any period commencing on a Trading Day a Draw
Down Notice is deemed delivered and ending ten (10) Trading Days
following the end of the corresponding Draw Down Pricing Period, then the
Company must compensate the Purchaser for any net decline in the market
value of any Shares purchased by the Purchaser pursuant to such recent
Draw Down Period or committed to be purchased by the Purchaser pursuant
to such recent Draw Down Pricing Period through the end of such
Suspension Period. Net decline shall be calculated as the difference
between the highest VWAP during the applicable Suspension Period and the
VWAP on the Trading Day immediately following a properly delivered notice
to the Purchaser that such Suspension Period has ended. If a Potential
Material Event shall occur prior to the date the Registration Statement
is filed, then the Company's obligation to file the Registration
Statement shall be delayed without penalty for not more than thirty (30)
calendar days. THE COMPANY MUST GIVE PURCHASER NOTICE IN WRITING OF THE
EXISTENCE OF A POTENTIAL MATERIAL EVENT PROMPTLY UPON KNOWLEDGE THAT SUCH
AN EVENT EXISTS.
(k) "Potential Material Event" means any of the following: (i) the
possession by the Company of material information that is not ripe for
disclosure in a registration statement, as determined in good faith by
the Chief Executive Officer or the Board of Directors of the Company or
that disclosure of such information in the Registration Statement would
be detrimental to the business and affairs of the Company; (ii) any
material engagement or activity by the Company which would, in the good
faith determination of the Chief Executive Officer or the Board of
Directors of the Company, be adversely affected by disclosure in a
registration statement at such time, which determination shall be
accompanied by a good faith determination by the Chief Executive Officer
or the Board of Directors of the Company that the Registration Statement
would be materially misleading absent the inclusion of such information,
or (iii) pursuant to applicable law, the Company is required to file a
post-effective amendment to the Registration Statement because the
Company experiences a fundamental change, must change the plan of
distribution to the Prospectus, or must update the information included
in the Prospectus pursuant to Section 10(a)(3) of the Securities Act.
Section 4. COOPERATION WITH COMPANY. The Purchaser will cooperate with
the Company in all respects in connection with this Agreement, including timely
supplying all information reasonably requested by the Company (which shall
include all information regarding the Purchaser and proposed manner of sale of
the Registrable Securities required to be disclosed in the Registration
Statement) and executing and returning all documents reasonably requested in
connection with the registration and sale of the Registrable Securities and
entering into and performing its obligations under any underwriting agreement,
if the offering is an underwritten
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offering, in usual and customary form, with the managing underwriter or
underwriters of such underwritten offering. The Purchaser shall consent to be
named as an underwriter in the Registration Statement. Purchaser acknowledges
that in accordance with current Commission policy, the Purchaser will be named
as the underwriter of the Shares in the Registration Statement.
Section 5. REGISTRATION PROCEDURES. If and whenever the Company is
required by any of the provisions of this Agreement to effect the registration
of any of the Registrable Securities under the Securities Act, the Company shall
(except as otherwise provided in this Agreement), as expeditiously as possible,
subject to the Purchaser's assistance and cooperation as reasonably required:
(a) (i) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus as may be
necessary to keep such registration statement effective and to comply
with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration
statement whenever the Purchaser of such Registrable Securities shall
desire to sell or otherwise dispose of the same (including prospectus
supplements with respect to the sales of securities from time to time in
connection with a registration statement pursuant to Rule 415 promulgated
under the Securities Act) and (ii) take all lawful action such that each
of (A) the Registration Statement and any amendment thereto does not,
when it becomes effective, contain 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 not misleading and (B) the
Prospectus, and any amendment or supplement thereto, does not at any time
during the Effectiveness Period 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, in light of the circumstances
under which they were made, not misleading;
(b) (i) prior to the filing with the Commission of any Registration
Statement (including any amendments thereto) and the distribution or
delivery of the Prospectus (including any supplements thereto), provide
draft copies thereof to the Purchaser and reflect in such documents all
such comments as the Purchaser (and its counsel) reasonably may propose
and (ii) furnish to the Purchaser such numbers of copies of the
Prospectus including a preliminary prospectus or any amendment or
supplement to the Prospectus, as applicable, in conformity with the
requirements of the Securities Act, and such other documents, as the
Purchaser may reasonably request in order to facilitate the public sale
or other disposition of the Registrable Securities;
(c) comply with the New York blue sky laws with respect to the
Registrable Securities (subject to the limitations set forth in Section
3(g) above), and do any and all other acts and things which may be
reasonably necessary or advisable to enable the Purchaser to consummate
the public sale or other disposition in such jurisdiction of the
Registrable Securities, except that the Company shall not for any such
purpose be required to: (i) qualify in any state which will require an
escrow or other restriction relating to the
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Company, (ii) qualify to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified or, (iii) to file any general
consent to service of process therein;
(d) list such Registrable Securities on the Principal Market, and
any other exchange on which the Common Stock of the Company is then
listed, if the listing of such Registrable Securities is then permitted
under the rules of such exchange or the Nasdaq Stock Market;
(e) notify the Purchaser at any time when the Prospectus is required
to be delivered under the Securities Act, of the happening of any event
of which it has knowledge as a result of which the Prospectus, 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 the Company shall prepare and file a curative amendment or
curative supplement under Section 5(a) as quickly as commercially
reasonable and the period beginning on the date of notice until the
curative amendment is effective or a curative supplement is filed shall
be deemed a Suspension Period and the Company shall compensate the
Purchaser to the extent provided in Section 3(j) herein;
(f) as promptly as practicable after becoming aware of such event,
notify the Purchaser (or, in the event of an underwritten offering, the
managing underwriters) of the issuance by the Commission or any state
authority of any stop order or other suspension of the effectiveness of
the Registration Statement at the earliest possible time and take all
lawful action to effect the withdrawal, rescission or removal of such
stop order or other suspension;
(g) take all such other lawful actions reasonably necessary to
expedite and facilitate the disposition by the Purchaser of its
Registrable Securities in accordance with the intended methods therefor
provided in the Prospectus which are customary for issuers to perform
under the circumstances;
(h) in the event of an underwritten offering, promptly include or
incorporate in a prospectus supplement or post-effective amendment to the
Registration Statement such information as the managing underwriters
reasonably agree should be included therein and to which the Company does
not reasonably object and make all required filings of such prospectus
supplement or post-effective amendment as soon as practicable after it is
notified of the matters to be included or incorporated in such prospectus
supplement or post-effective amendment; and
(i) maintain a transfer agent for its Common Stock.
Section 6. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless the Purchaser
and each person, if any, who controls the Purchaser within the meaning of
the Securities Act ("Distributing Purchaser") against any losses, claims
(brought by third parties),
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damages or liabilities, joint or several (which shall, for all purposes
of this Agreement, include, but not be limited to, all reasonable costs
of defense and investigation and all reasonable attorneys' fees), to
which the Distributing Purchaser may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, or any related preliminary prospectus, the
Prospectus or amendment or supplement thereto, or arise out of or are
based upon 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; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, preliminary prospectus, the Prospectus or
amendment or supplement thereto in reliance upon, and in conformity with,
written information furnished to the Company by the Distributing
Purchaser specifically for use in the preparation thereof. This Section
6(a) shall not inure to the benefit of any Distributing Purchaser with
respect to any person asserting such loss, claim, damage or liability who
purchased the Registrable Securities which are the subject thereof if the
Distributing Purchaser failed to send or give a copy of the Prospectus to
such person at or prior to the written confirmation to such person of the
sale of such Registrable Securities, where the Distributing Purchaser was
obligated to do so under the Securities Act or the rules and regulations
promulgated thereunder. This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each Distributing Purchaser agrees that it will indemnify and
hold harmless the Company, and each officer or director of the Company or
person, if any, who controls the Company within the meaning of the
Securities Act, against any losses, claims, damages or liabilities (which
shall, for all purposes of this Agreement, include, but not be limited
to, all reasonable costs of defense and investigation and all reasonable
attorneys' fees) to which the Company or any such officer, director or
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
the Registration Statement, or any related preliminary prospectus, the
Prospectus or amendment or supplement thereto, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent
that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, preliminary
prospectus, the Prospectus or amendment or supplement thereto in reliance
upon, and in conformity with, written information furnished to the
Company by such Distributing Purchaser specifically for use in the
preparation thereof. This indemnity agreement will be in addition to any
liability which the Distributing Purchaser may otherwise have.
Notwithstanding anything to the contrary herein, the Distributing
Purchaser shall not be liable under this Section 6(b) for any amount in
excess
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of the net proceeds to such Distributing Purchaser as a result of the
sale of Registrable Securities pursuant to the Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party of
the commencement thereof; but the omission so to notify the indemnifying
party will not relieve the indemnifying party from any liability which it
may have to any indemnified party except to the extent of actual
prejudice demonstrated by the indemnifying party. In case any such action
is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate in, and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, assume the
defense thereof, subject to the provisions herein stated and after notice
from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 6 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation,
unless the indemnifying party shall not pursue the action to its final
conclusion. The indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but
the fees and expenses of such counsel shall not be at the expense of the
indemnifying party if the indemnifying party has assumed the defense of
the action with counsel reasonably satisfactory to the indemnified party;
provided that if the indemnified party is the Distributing Purchaser, the
fees and expenses of such counsel shall be at the expense of the
indemnifying party if (i) the employment of such counsel has been
specifically authorized in writing by the indemnifying party, or (ii) the
named parties to any such action (including any impleaded parties)
include both the Distributing Purchaser and the indemnifying party and
the Distributing Purchaser shall have been advised by such counsel that
there may be one or more legal defenses available to the indemnifying
party different from or in conflict with any legal defenses which may be
available to the Distributing Purchaser (in which case the indemnifying
party shall not have the right to assume the defense of such action on
behalf of the Distributing Purchaser, it being understood, however, that
the indemnifying party shall, in connection with any one such action or
separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances, be liable only for the reasonable fees and expenses of one
separate firm of attorneys for the Distributing Purchaser, which firm
shall be designated in writing by the Distributing Purchaser and be
approved by the indemnifying party). No settlement of any action against
an indemnified party shall be made without the prior written consent of
the indemnified party, which consent shall not be unreasonably withheld.
All fees and expenses of the indemnified party (including reasonable
costs of defense and investigation in a manner not inconsistent with this
Section and all reasonable attorneys' fees and expenses) shall be paid to
the indemnified party, as incurred, within ten (10) Trading Days of
written notice thereof to the indemnifying party; provided, that the
indemnifying party may require such indemnified party to undertake to
reimburse
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all such fees and expenses to the extent it is finally judicially
determined that such indemnified party is not entitled to indemnification
hereunder.
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution under the Securities Act in any case in which (i) the indemnified
party makes a claim for indemnification pursuant to Section 6 hereof but is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that the express provisions of Section 6 hereof provide
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of any indemnified party, then the Company and the
applicable Distributing Purchaser shall contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (which shall, for
all purposes of this Agreement, include, but not be limited to, all reasonable
costs of defense and investigation and all reasonable attorneys' fees), in
either such case (after contribution from others) on the basis of relative fault
as well as any other relevant equitable considerations. The relative fault 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 Company on the one hand
or the applicable Distributing Purchaser on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Distributing Purchaser
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 7. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. 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.
Notwithstanding any other provision of this Section 7, in no event shall
any (i) Purchaser be required to undertake liability to any person under this
Section 7 for any amounts in excess of the dollar amount of the net proceeds to
be received by the Purchaser from the sale of the Purchaser's Registrable
Securities (after deducting any fees, discounts and commissions applicable
thereto) pursuant to any Registration Statement under which such Registrable
Securities are or were to be registered under the Securities Act and (ii)
underwriter be required to undertake liability to any person hereunder for any
amounts in excess of the aggregate discount, commission or other compensation
payable to such underwriter with respect to the Registrable Securities
underwritten by it and distributed pursuant to the Registration Statement.
Section 8. NOTICES. All notices, demands, requests, consents, approvals,
and other communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be delivered as set forth in the
Purchase Agreement.
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SECTION 9. ASSIGNMENT. Neither this Agreement nor any rights of the
Purchaser or the Company hereunder may be assigned by either party to any other
person, except that, with the prior written consent of the Purchaser, the
Company may transfer and assign this Agreement and its rights and obligations
hereunder to a party that requires all or substantially all of the business by
merger, sale of assets or otherwise. Notwithstanding the foregoing, (a) the
provisions of this Agreement shall inure to the benefit of, and be enforceable
by, any transferee of any of the Common Stock purchased by the Purchaser
pursuant to the Purchase Agreement other than through open-market sales, and (b)
upon the prior written consent of the Company, which consent shall not be
unreasonably withheld or delayed in the case of an assignment to an affiliate of
the Purchaser, the Purchaser's interest in this Agreement may be assigned at any
time, in whole or in part, to any other person or entity (including any
affiliate of the Purchaser) who agrees to be bound hereby.
Section 10. COUNTERPARTS/FACSIMILE. This Agreement may be executed in two
or more counterparts, each of which shall constitute an original, but all of
which, when together shall constitute but one and the same instrument, and shall
become effective when one or more counterparts have been signed by each party
hereto and delivered to the other party. In lieu of the original, a facsimile
transmission or copy of the original shall be as effective and enforceable as
the original.
Section 11. REMEDIES AND SEVERABILITY. The remedies provided in this
Agreement are cumulative and not exclusive of any remedies provided by law. If
any term, provision, covenant or restriction of this Agreement is held by a
board of arbitration or a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of those
that may be hereafter declared invalid, illegal, void or unenforceable.
Section 12. CONFLICTING AGREEMENTS. The Company shall not enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the purchasers of Registrable Securities in this Agreement or
otherwise prevents the Company from complying with all of its obligations
hereunder.
Section 13. HEADINGS. The headings in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
Section 14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made in New York by persons domiciled in New York City and without
regard to its principles of conflicts of laws. Any action may be brought as set
forth in the Purchase Agreement. The Company and the Purchaser agree to submit
themselves to the IN PERSONAM jurisdiction of the state and federal courts
situated within the Southern District of the State of New York with
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regard to any controversy arising out of or relating to this Agreement. Any
party shall have the right to seek injunctive relief from any court of competent
jurisdiction in any case where such relief is available. Any dispute under this
Agreement shall be submitted to arbitration under the American Arbitration
Association (the "AAA") in New York City, New York, and shall be finally and
conclusively determined by the decision of a board of arbitration consisting of
three (3) members (hereinafter referred to as the "Board of Arbitration")
selected as according to the rules governing the AAA. The Board of Arbitration
shall meet on consecutive business days in New York City, New York, and shall
reach and render a decision in writing (concurred in by a majority of the
members of the Board of Arbitration) with respect to the amount, if any, which
the losing party is required to pay to the other party in respect of a claim
filed. In connection with rendering its decisions, the Board of Arbitration
shall adopt and follow the laws of the State of New York. To the extent
practical, decisions of the Board of Arbitration shall be rendered no more than
thirty (30) calendar days following commencement of proceedings with respect
thereto. The Board of Arbitration shall cause its written decision to be
delivered to all parties involved in the dispute. The Board of Arbitration shall
be authorized and is directed to enter a default judgment against any party
refusing to participate in the arbitration proceeding within thirty days of any
deadline for such participation. Any decision made by the Board of Arbitration
(either prior to or after the expiration of such thirty (30) calendar day
period) shall be final, binding and conclusive on the parties to the dispute,
and entitled to be enforced to the fullest extent permitted by law and entered
in any court of competent jurisdiction. The prevailing party shall be awarded
its costs, including attorneys' fees, from the non-prevailing party as part of
the arbitration award. Any party shall have the right to seek injunctive relief
from any court of competent jurisdiction in any case where such relief is
available. The prevailing party in such injunctive action shall be awarded its
costs, including attorney's fees, from the non-prevailing party.
[SIGNATURE PAGE FOLLOWS]
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<PAGE>
[SIGNATURE PAGE OF REGISTRATION RIGHTS AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Registration
Rights Agreement to be duly executed, on this 25th day of May, 2001
OPEN MARKET, INC.
By: /s/ EDWARD DURKIN
------------------------------------
Edward Durkin, Chief Financial Officer
THEDDINGWORTH INTERNATIONAL LIMITED
By: /s/ DAVID SIMS
------------------------------------
David Sims, Director
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