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EXHIBIT 10.44
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of __________, 1999, by and between The Xxxxxxxx Companies, a
Delaware corporation ("Xxxxxxxx") and Xxxxxxxx Communications Group, Inc., a
Delaware corporation (the "Company").
This Agreement is made in light of the recapitalization of the Company
providing two series of Common Stock of the Company in preparation of an Initial
Public Offering of Series A Common Stock of the Company. In connection with the
recapitalization, Xxxxxxxx received all of the issued and outstanding shares of
Series B Common Stock of the Company. Pursuant to its Certificate of
Incorporation, upon the sale or other transfer of any Series B Common Stock to
any person which is not a Xxxxxxxx Affiliate, such transferred shares will
automatically be converted into an equal number of Class A Common Stock of the
Company.
The parties hereby agree as follows:
1. DEFINITIONS
1.01 "AFFILIATE" means, with respect to a specified Person, any Person
controlling , controlled by or under common control with such Person.
1.02 "COMMISSION" means the Securities and Exchange Commission.
1.03 "COMMON STOCK" means all the common stock, $.01 par value per
share, of the Company including both Series A and Series B.
1.04 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
1.05 "HOLDER" means a holder of Registrable securities. A person is
deemed to be a Holder of Registrable Securities whenever such person owns
Registrable Securities; provided, however, that unless the Company is otherwise
notified by the Holder of a Registrable Security, the Holder of a Registrable
Security shall be deemed to be that person set forth on the books and record of
the Company or the registrar for such Registrable Securities.
1.06 "INSPECTORS" means collectively any Holder, any underwriter
participating in any disposition pursuant to a Registration Statement and any
attorney, accountant or other professional retained by any such Holder or
underwriter.
1.07 "IPO" means the initial public offering of Common Stock by the
Company that is registered under the Securities Act with the Commission.
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1.08 "MAJORITY HOLDERS" means the holder or holders of a majority of
the Registrable Securities to be registered under a Registration Statement.
1.09 "OTHER SELLING HOLDERS" means all persons and entities other than
Xxxxxxxx who have been granted registration rights by the Company.
1.10 "PERSON" means an individual, a partnership, a corporation, a
limited liability company, a limited liability partnership, an association, a
joint stock company, a trust, a joint venture, an unincorporated organization
and a governmental entity or any department, agency or political subdivision
thereof.
1.11 "RECORDS" means all financial and other records, pertinent
corporate documents and properties of Xxxxxxxx.
1.12 "REGISTRABLE SECURITIES" means all shares of Common Stock held at
the relevant time by Xxxxxxxx or any affiliated transferee or assignee of Common
Stock previously held by Xxxxxxxx (provided that pursuant to such transfer or
assignment Xxxxxxxx has specifically assigned certain of its rights hereunder),
and any other issued or issuable shares of Common Stock held by Xxxxxxxx at the
relevant time, either at the time of initial issuance or subsequently, by way of
a stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to be Registrable
Securities (i) when they have been transferred in a public offering registered
under the Securities Act or in a sale made through a broker, dealer or
market-maker pursuant to Rule 144 under the Securities Act or (ii) when any
Holder requests in writing that such Registrable Securities not be registered
pursuant to the terms of this Agreement.
1.13 "REGISTRATION EXPENSES" means (i) 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, mailing and
delivery 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 of the Registrable Securities, (vi) reasonable fees and disbursements of
counsel for the Company and customary fees and expenses for independent
certified public accountants of a comfort letter or comfort letters), (vii) the
reasonable fees and disbursements of one counsel retained by or for the benefit
of all of the holders of Registrable Securities (determined by the Selling
Holders of such securities in any manner in which they collectively choose),
(viii) the reasonable fees and expenses of any special experts retained by the
Company in connection with such registration and (ix) the reasonable fees and
expenses of any transfer agents and registrars of the Registrable Securities, as
selected by the Company; provided,
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however, the Company shall not have any obligation to pay any underwriting fees,
discounts or commissions attributable to the sale of Registrable Securities, or,
except as provided by clause (ii) above, any out-of-pocket expenses of the
Holders (or the agents who manage their accounts) or the fees and disbursements
of counsel for any underwriter.
1.14 "REGISTRATION STATEMENT" means a registration statement on Form
S-1 or another appropriate form filed by the Company during the period that this
agreement is in effect.
1.15 "RULE 144" means Rule 144 issued under the Securities Act or other
comparable provision that may be adopted by the Commission.
1.16 "SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
1.17 "SELLING HOLDER" means, with respect to any Registration
Statement, any Holder whose securities are included therein.
2. REGISTRATION RIGHTS
2.01 DEMAND REGISTRATION RIGHTS. Upon the written request of a Holder,
the Company shall file with the Commission a Registration Statement (a "Demand
Registration") under the Securities Act covering all or part of then outstanding
Registrable Securities, and shall use its reasonable efforts to cause the
Registration Statement to become effective as soon as practicable; provided,
however, that the number of registrable Securities for which such registration
is sought must exceed 1,000,000 shares of the Company's Common Stock.
(a) NUMBER OF DEMAND REGISTRATIONS. The Company shall be required to
effect, pursuant to this Section 2.01, registrations with respect to
Registrable Securities requested by Xxxxxxxx, so long as Xxxxxxxx
beneficially owns in the aggregate at least three percent of the issued
and outstanding shares of the Company's Class B Common Stock
Registrable Securities, Xxxxxxxx shall have the right to require the
Company to effect Required Registrations provided that the Registrable
Securities included therein have an aggregate Market Value of at least
$50 million.
(b) PRIORITY ON DEMAND REGISTRATIONS. In the event that a Demand
Registration is an underwritten offering, and the managing underwriters
advise Xxxxxxxx in writing that in their opinion the number of
Registrable Securities, the Company's securities, and any other
securities requested to be included exceeds the number that can be sold
in such offering without adversely affecting such underwriters' ability
to effect an orderly distribution of such securities
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(including the price thereof), the Company will include in such
registration: (i) first, the number of Registrable Securities requested
to be included by Xxxxxxxx; (ii) second, the number of Registrable
Securities requested to be included by any other Holder; (iii) third,
if all the Registrable Securities requested to be included are included
in such registration, the number of the Company's securities requested
to be included that, in the opinion of such underwriters, can be sold;
and (iv) fourth, if all Registrable Securities and the Company's
securities requested to be included are included in such registration,
any other securities requested to be included in such registration
that, in the opinion of such underwriters, can be sold. [NOTE TO
READER: SWBell could "piggyback" but would have a fourth priority]
2.02 PIGGYBACK REGISTRATIONS.
(a) RIGHT TO PIGGYBACK. Whenever the Company proposes to register any
of its Common Stock (whether for its own account or the account of
others) under the Securities Act (other than pursuant to a Demand
Registration) an offering and the registration form to be used is
suitable for the registration of Registrable Securities (a "Piggyback
registration"), the Company will give prompt written notice of the
proposed registration to each Holder and, subject to the priority
provisions of Section 2.02(b), will include in such registration all
Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 30 days after receipt of
such notice, provided, however, that (i) the Company will not be
required to effect a Piggyback Registration if it is registering
securities in connection with an employee stock option plan, a merger,
exchange offer or another transaction of the type specified in Rule 145
and (ii) the Company may withdraw any proposed Registration Statement
or offering of securities under this Section at any time without
liability to any Holder, in which case the Company will not be required
to effect a registration, unless such Holder converts its request into
a Demand Registration.
(b) PRIORITY ON PRIMARY REGISTRATIONS. In the event that a Piggyback
Registration is in connection with an underwritten primary offering of
the Company's securities and the managing underwriters advise the
Company in writing that in their opinion the number of securities
requested to be included in such registration exceeds the number that
can be sold in such offering without adversely affecting such
underwriters' ability to effect an orderly distribution of such
securities, will include in such registration: (i) first, the Company's
securities proposed to be sold by the Company; (ii) second, the number
of Registrable Securities requested to be included that, in the opinion
of such underwriters, can be sold, pro rata among the Holders of such
securities on the basis of the amount of Registrable securities then
owned by each such Holder; and (iii) third, if all Registrable
Securities requested to be included are included
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in such registration, any other securities requested to be included in
such registration that, in the opinion of such underwriters, can be
sold.
(c) PRIORITY ON OTHER REGISTRATIONS. In the event that a Piggyback
Registration is in connection with an underwritten offering of the
Company's securities pursuant to the exercise of registration rights by
a stockholder of the Company who is not a Holder hereunder and the
managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in such offering
without adversely affecting such underwriters' ability to effect an
orderly distribution of such securities, the Company will include in
such registration: (i) first, the shares of the Company's Common Stock
requested to be registered by such Company stockholder pursuant to the
exercise of its registration rights, (ii) second, any of the Company's
securities proposed to be sold by the Company in such offering; (iii)
third, the number of Registrable Securities requested to be included
that, in the opinion of such underwriters, can be sold pro rata among
the Holders of such securities on the basis of the amount of
Registrable Securities then owned by each such Holder; and (iv) fourth,
if all Registrable Securities requested to be included are included in
such registration, any other securities requested to be included in
such registration that, in the opinion of such underwriters, can be
sold.
(d) CONDITION TO PIGGYBACK REGISTRATIONS. Registrable Securities and
any other securities registered in a Piggyback Registration shall be
offered to the public at no less than the price at which other
equivalent securities of the company then registered are offered to the
public.
3. HOLDBACK AGREEMENT. To the extent not inconsistent with applicable law,
each Holder agrees not to effect any sale or distribution of any securities of
the issue being registered or any securities similar to those being registered,
or any securities convertible into or exchangeable or exercisable for such
securities, including a sale pursuant to Rule 144, during the ten (10) business
days prior to, and during the 120-day period beginning on, the effective date of
such registration statement (except as part of such registration), if and to the
extent timely notified in writing by the managing underwriter or underwriters in
the case of an underwritten public offering.
4. SELECTION OF UNDERWRITERS. At the option of the Majority Holders, the
offering of Registrable Securities pursuant to Section 2.01 may be in the form
of an underwritten offering; PROVIDED, that the Majority Holders shall be
entitled to select the book-running managing underwriter subject to the approval
of the Company, which approval will not be unreasonably withheld.
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5. REGISTRATION.
5.01 REGISTRATION PROCEDURES. In connection with the offering the
Registrable Securities pursuant to Section 2, the Company shall:
(a) prepare and file the Registration Statement with the Commission on
any form for which the Company then qualifies or which counsel for the
Company shall deem appropriate and which form shall be available for
the sale of the Registrable Securities thereunder in accordance with
the intended method of distribution thereof, and use its reasonable
[best] efforts (subject to Section 2.01(c)) to cause such filed
Registration Statement to become effective as soon as practicable; and
after the filing of the Registration Statement, the Company will
promptly notify each Holder of Registrable Securities covered by the
Registration Statement of any stop order issued or threatened by the
Commission and take all reasonable actions required to prevent the
entry of such stop order or to remove it if entered;
(b) in the event of a Demand Registration, prepare and file with the
Commission such amendments and supplements to the Registration
Statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period of
not less than 270 days or such shorter period which will terminate when
all Registrable Securities covered by such registration statement have
been sold and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by the
Registration Statement during such period in accordance with the
intended methods of disposition by the holders thereof set forth in the
Registration Statement;
(c) furnish to each Holder whose Registrable Securities are to be
included in the Registration Statement, prior to filing the
Registration Statement, if requested, copies of the Registration
Statement as proposed to be filed, and thereafter furnish to such
Holder such number of copies of the Registration Statement, each
amendment and supplement thereto (in each case including all exhibits
thereto), the prospectus included in the Registration Statement
(including each preliminary prospectus) and such other documents as
such Holder may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such Holder;
(d) use its reasonable efforts to register or qualify such Registrable
Securities under such other securities or state blue sky laws of such
jurisdictions as any Holder or managing underwriter reasonably (in
light of the intended plan of distribution) requests and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder or managing underwriter to consummate the
disposition in such jurisdictions of the Registrable Securities owned
by such Holder; provided, however, that Xxxxxxxx will not be required
to (i) qualify generally to do business in any jurisdiction
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where it would not otherwise be required to qualify but for this
Section 5.01(d), (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction;
(e) use its reasonable efforts to cause such Registrable Securities to
be registered with or approved by such other governmental agencies or
authorities as may be necessary by virtue of the business and
operations of Xxxxxxxx to enable the Holder or Holders thereof to
consummate the disposition of such Registrable Securities;
(f) notify each Holder of such Registrable Securities, at any time when
a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of an event requiring the preparation
of a supplement or amendment to such prospectus so that, as thereafter
delivered to the Holders of such Registrable Securities, such
prospectus will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and promptly
making available to each Holder any such supplement or amendment
(g) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition
of such Registrable securities;
(h) make available for inspection by Inspectors all Records as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such
Inspectors in connection with the Registration Statement. Records which
the Company determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in the Registration
Statement or (ii) release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction. Each
Holder of such Registrable Securities agrees that information obtained
by it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Company or its affiliates unless and until such is
made generally available to the public. Each Holder of such Registrable
Securities further agrees that it will, upon learning that disclosure
of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at its expense, to
undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(i) use its reasonable efforts to obtain a comfort letter or comfort
letters from the Company's independent public accounts in customary
form and covering
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such matters of the type customarily covered by comfort letters;
(j) otherwise use its reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make available to its
security holders, as soon as reasonable, practicable, an earnings
statement covering a period of twelve months, beginning within three
months after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(k) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company
are then listed and, if not so listed, to be listed on the NASDAQ
Nation Market ("NASDAQ") and, if listed on the NASDAQ system, use its
reasonable best efforts to secure designation of all such Registrable
Securities covered by such registration statement as a NASDAQ "national
market system security" within the meaning of Rule 11Aa2-1 of the
Commission or, failing that, to secure NASDAQ authorization for such
Registrable Securities and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as
such with respect to such Registrable securities with the National
Association of Securities Dealers, Inc.; and
(1) provide a transfer agent and registrar for all such Registrable
Securities (if the Company does not already have such an agent) not
later than the effective date of such registration statement.
The Company may require each Holder of Registrable Securities to
promptly furnish in writing to the Company such information regarding the
distribution of the Registrable Securities as it may from time to time
reasonably request and such other information as may be legally required in
connection with such registration.
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of any kind described in Section 5.01(f) hereof, such
Holder will forthwith discontinue disposition of Registrable Securities pursuant
to the Registration Statement covering such Registrable securities until such
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 5.01(f) hereof. In the event the Company shall give such
notice, the Company shall extend the period during which the Registration
Statement shall be maintained effective (including the period referred to in
Section 5.01(f) hereof) by the number of days during the period from and
including the date of the giving of notice pursuant to Section 5.01(f) hereof to
the date when the Company shall make available to the Holders of Registrable
Securities covered by the registration Statement a prospectus supplemented or
amended to conform with the requirements of Section 5.01(f) hereof.
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5.02. REGISTRATION EXPENSES. Xxxxxxxx will pay or cause to be paid all
Registration Expenses, including all fees and expenses (including all Blue Sky,
New York Stock Exchange and National Association of Securities Dealers, Inc.,
filing and registration fees, accounting fees and disbursements, printing costs,
attorneys' fees and disbursements), arising out of the preparation, filing,
amending and supplementing of a Registration Statement pursuant to Section 2.01
hereof and to the amount of such fees and expenses that are reasonably allocable
to the Selling Stockholder for a Registration Statement used under Section 2.02
based on the number of shares offered by Holders relative to the number of other
shares offered by the Company or on behalf of any of its other holders. [NOTE TO
READER: Conforms to SWBell Agreement]
6. RULE 144. With a view to making available the benefits of Rule 144
under the Securities Act (or similar rule then in effect) available to each
Holder, the Company shall:
(a) make and keep available adequate current public information with
respect to the Company within the meaning of Rule 144(c) under the
Securities Act (or similar rule then in effect);
(b) furnish to each Holder forthwith upon request (i) a written
statement by the Company as to its compliance with the informational
requirements of Rule 144(c) (or similar rule then in effect or (ii) a
copy of the most recent annual or quarterly report of the Company; and
(c) comply with all other necessary filing and other requirements so as
to enable each Holder to sell Registrable Securities under Rule 144
under the Securities Act (or similar rule then in effect).
7. GRANTING OF REGISTRATION RIGHTS. Without Xxxxxxxx' prior written
consent, the Company shall not in the future grant any rights to any other
person to register any shares of capital stock or other securities of the
Company; provided, however, Xxxxxxxx' consent will no longer be required if and
when Xxxxxxxx' direct or beneficial ownership of the Company's voting securities
is less than 50% of the total outstanding voting securities.
8. INDEMNIFICATION AND CONTRIBUTION.
8.01 INDEMNIFICATION OF HOLDERS: The Company agrees to indemnify and
hold harmless each Holder and each Person, if any, who controls (within the
meaning of Section 15 of the 33 Act and Section 20 of the 34 Act) such Holder (a
"Control Person") against any losses, claims, damages or liabilities, joint or
several, to which such Holder or any such Control Person may become subject,
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
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contained in any preliminary or final registration Statement or prospectus with
respect thereto, or any 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; and the Company will reimburse each Holder and each Control Person
for any legal or other expenses reasonably incurred by such Holder or such
Control Person in connection with investigating or defending any such loss,
claim, damage liability or action; provided, however, that the Company will not
be liable in any 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 from any of such documents in reliance
upon and in conformity with written information furnished by or on behalf of
such Holder or any such Control Person specifically for use in the preparation
thereof.
8.02 INDEMNIFICATION BY HOLDER OR REGISTRABLE SECURITIES. Each Holder
will, severally and not jointly, indemnify and hold harmless the Company and
each of its directors, officers and each Person, if any, who controls (within
the meaning of Section 15 of the 33 Act and Section 20 of the 34 Act) the
Company (a "Company Control Person") to the same extent as set forth in the
foregoing indemnity from the Company to each Holder but only with reference to
written information included in any preliminary or final Registration Statement
or prospectus with respect thereto, or amendment or supplement thereto,
furnished by or on behalf of such Holder specifically for use in the preparation
of such documents; and will reimburse the Company or any such Company Control
Person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any loss, claim, damage, liability or action for
which such Holder is obligated to indemnify the Company or any Company Control
Person.
8.03 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after receipt by
an indemnified party under this Article VIII of notice of any claim or the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to e made against an indemnifying party under Section 8.01 or 8.02
above, notify the indemnifying party of any claim or the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
Section 8.01 or 8.02 above. In case any such action is brought against any
indemnified party and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), 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 in connection with the defense thereof other than reasonable
costs of investigation. No
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indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which 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
on any claims that are the subject matter of such action.
8.04 CONTRIBUTION. If the indemnification provided for in Section 8.01
or 8.02 is unavailable or insufficient in accordance with its terms in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative benefits as well as the relative fault of
the Company on the one hand and the Holder on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable consideration. The relative benefits received by the Company on the
one hand and each Holder on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
on the one hand bears to the total net proceeds received by the Holder from the
offering. 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 fat relates to information
supplied by the Company on the one hand or the Holder on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
8.05 OBLIGATIONS. The obligations of the Company under this Section
shall be in addition to any liability which the Company may otherwise have and
shall extend, upon the same terms and conditions, to each director of any Holder
and to each person, if any, who controls any Holder or any underwriter within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act. The obligations of each Holder under this Section shall be in
addition to any liability which the respective Holder may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed any registration
statement and to each person, if any, who controls the Company or any
underwriter (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act.
9. MISCELLANEOUS.
9.01 NOTICES. All notices and other communications provided for or
permitted hereunder shall be made by hand-delivery or registered first-class
mail:
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(i) HOLDER. If to a Holder of Registrable Securities, at the
most current address, and with a copy to be sent to each additional address
given by such Holder.
(ii) if to the Company:
Xxxxx Xxxxx
Xxxxxxxx Communications
Xxx Xxxxxxxx Xxxxxx
Xxxxx XX 00000
All such notices and communications shall be deemed to have
been duly given when delivered by hand, if personally delivered, or two business
days after being deposited in the mail, postage prepared, if mailed.
9.02 TRANSFER OR REGISTRATION RIGHTS; SUCCESSORS AND ASSIGNS. Xxxxxxxx
may transfer or assign its rights hereunder, in whole or in part, without the
prior approval of the Company. This Agreement and its benefits shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto.
9.03 AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given without the written consent of the Company and the Majority
Holders.
9.04 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
9.05 HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning thereof.
9.06 GOVERNING LAW This Agreement shall be governed by and construed in
accordance with the laws of the State of Oklahoma without regard to principles
of conflicts of law.
9.07 SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in very other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights
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and privileges of each Holder shall be enforceable to the fullest extent
permitted by law.
9.08 SPECIFIC PERFORMANCE. The parties hereto acknowledge that there
would be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement in any
court of the United States or any State thereof having jurisdiction.
9.09 ENTIRE AGREEMENT. This Agreement, together with the Merger
Agreement, is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Agreement and the Merger Agreement (including the exhibits thereto) supersede
all prior agreements and understandings between the parties with respect to
subject matter.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first written above.
XXXXXXXX COMMUNICATIONS GROUP, INC.
By:
---------------------------------------------
Name:
Title:
THE XXXXXXXX COMPANIES, INC.
By:
---------------------------------------------
Name:
Title:
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