Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 12, 2002 (the
"Agreement"), among Emex Corporation, a Nevada corporation (the "Company"),
Sixth Avenue Associates, a Delaware limited liability company ("Sixth Avenue"),
as Secured Party, Thorn Tree Resources LLC, a Delaware limited liability company
("Thorn Tree"), and Universal Equities Consolidated LLC, a Nevada limited
liability company ("Universal," and together with Thorn Tree and Sixth Avenue,
the "Holders").
R E C I T A L S:
- - - - - - - -
WHEREAS, the Company and each of the Holders are parties to and have
entered into that certain Settlement Agreement and Release, dated as of April
12, 2002 (the "Settlement Agreement;" all capitalized terms used herein without
definition have the same meanings herein as in the Settlement Agreement).
WHEREAS, pursuant to and in accordance with Section 1(e) of the Settlement
Agreement, the Company has agreed to grant to Thorn Tree, Universal and Sixth
Avenue the registration rights set forth herein.
In consideration of the mutual agreements and covenants set forth herein
and in the Settlement Agreement, the parties hereby agree as follows:
1. Shelf Registration. Promptly, and in any event within 120 days of the date
hereof, the Company agrees to use its best efforts to file a shelf registration
statement for an offering to be made on a continuous basis pursuant to Rule 415
under the Securities Act of 1933, as amended (the "Securities Act"), covering
(i) the Pledged Shares (which term, as used herein, shall include any Released
Shares) and (ii) the 300,000 Universal Retained Shares (collectively, the
"Shares") to become effective under the Securities Act on the day next following
the Effective Date, or at the earliest possible time thereafter. The foregoing
shelf registration shall be on Form S-3 under the Securities Act or another
appropriate form permitting registration of such Shares for resale by the
Holders in the manner or manners reasonably designated by them (including,
without limitation, one or more underwritten offerings, within the time periods
and otherwise in accordance with the provisions hereof). The Company shall
perform such other procedures as may be necessary to permit the Holders to
effect a "draw-down" at any time or from time to time during the period
described in Section 2 hereof of any Shares registered on such shelf
registration statement.
2. Maintenance and Suspension of Effectiveness. The Company shall use its best
efforts to keep the shelf registration statement continuously effective,
supplemented and amended as required by the provisions of Section 5 hereof to
the extent necessary to ensure that it is available
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for sales of the Shares by the Holders and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Securities and Exchange Commission (the "Commission") as
announced from time to time, for a period expiring on the earlier of (i) the
date that all Holders of the Shares have sold such securities pursuant to the
shelf registration statement or pursuant to the "piggy-back" registration rights
granted by Section 3 hereof and (ii) the date on which the Shares can be sold
without restriction under the Securities Act provided, that the Company shall
have the option of suspending the effectiveness of the shelf registration
statement for periods of up to an aggregate of 60 days in any calendar year if
the board of directors of the Company determines in good faith that compliance
with the disclosure obligations necessary to maintain the effectiveness of the
shelf registration statement at such time could reasonably be expected to have a
material adverse effect on the Company or a pending corporate transaction of the
Company (a "Material Transaction Suspension") and provided further, in the event
that the Company, for its own account, proposes to register shares of Common
Stock on any registration statement on Form X-0, X-0 or S-3, their successor
forms or any other form under the Securities Act appropriate for a primary
public offering by the Company (other than for the purpose of making an
acquisition or in connection with option plans), the Company shall have the
option of suspending the effectiveness of any shelf registration statement for a
period commencing 30 days prior to the effectiveness of such registration
statement and ending 90 days after the effective date thereof (a "Pending
Registration Suspension" and, together with a Material Transaction Suspension, a
"Permitted Suspension"). Notwithstanding the foregoing, the Company's
obligations to the Holders of the Retained Shares and the Released Shares under
this Section 2 shall terminate on the date on which all remaining Retained
Shares and the Released Shares can be sold by Universal in accordance with Rule
144 promulgated under the Securities Act within any successive three-month
period.
3. Piggy-Back Registration. (a) If at any time, the Company proposes to file a
registration statement, other than the Registration Statement on behalf of the
Pledged Shares and the Retained Shares, on Form X-0, X-0 or S-3, their successor
forms or any other form under the Securities Act appropriate for a primary
public offering by the Company (other than for the purpose of making an
acquisition or in connection with option plans) with respect to an underwritten
offering of Common Stock, whether for the account of the Company or any other
person (a "Proposed Registration"), the Company shall advise the Holders by
written notice at least 20 days prior to the filing of any such registration
statement, and such notice shall offer the Holders the opportunity to register
such number of the Pledged Shares, the Retained Shares and the Released Shares,
if any, as such Holder may request (which request shall specify the number of
shares intended to be disposed of by the Holders and the intended method of
distribution thereof) (a "Piggy-Back Registration"). The Company shall use its
best efforts to cause the managing underwriter or underwriters of any Proposed
Registration to permit the Pledged Shares, the Retained Shares and the Released
Shares, if any (collectively, the "Piggy-Back Shares"), requested to be included
in a Piggy-Back Registration to be included on the same terms and conditions as
any similar securities of the Company or any other securityholder included
therein and to permit the sale or other disposition of such Piggy-Back Shares in
accordance with the intended method of distribution thereof, provided, however,
in no event shall the Company
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be required to reduce the number of securities proposed to be sold by the
Company or alter the terms of the securities proposed to be sold by the Company
in order to induce the managing underwriter or underwriters to permit the
Piggy-Back Shares to be included. The Company may withdraw a Proposed
Registration at any time prior to the time it becomes effective; provided that
the Company shall give prompt notice thereof to the Holders. Notwithstanding the
foregoing, the Company shall have no obligations to Universal under this
Agreement with respect to the Released Shares.
(b) Reduction of Offering. (i) If the lead managing underwriter of any
Proposed Registration has informed the Company that it is its view that the
total number of securities which the Company, the Holders and any other persons
desiring to participate in such registration intend to include in such offering
is such as to adversely affect the success of such offering, including the price
at which such securities can be sold, then the number of Piggy-Back Shares to be
offered for the account of the Holders and the number of such securities to be
offered for the account of all such other persons (other than the Company)
participating in such registration shall be reduced or limited pro rata in
proportion to the respective number of securities requested to be registered to
the extent necessary to reduce the total number of securities requested to be
included in such offering to the number of securities, if any, recommended by
such lead managing underwriter.
(ii) If the lead managing underwriter of any Proposed Registration notifies
the Company that the kind of securities that the Holders, the Company and any
other persons desiring to participate in such registration intend to include in
such offering is such as to adversely affect the success of such offering, (x)
the number of Piggy-Back Shares to be offered for the account of the Holders and
the number of such securities to be offered for the account of all such other
persons (other than the Company) to be included in such offering shall be
reduced as described in clause (i) above or (y) if a reduction in the number of
Piggy-Back Shares and the number of such securities held by other persons (other
than the Company) requested to be included, in the judgment of the lead managing
underwriter, would be insufficient to substantially eliminate the adverse effect
that inclusion of the Piggy-Back Shares and securities held by such other
persons requested to be included would have on such offering, such Piggy-Back
Shares and securities held by such other persons will be excluded from such
offering.
(c) Each of the Holders shall have the right to withdraw its request for
inclusion of their Piggy-Back Shares in any Proposed Registration by giving
written notice to the Company of its request to withdraw prior to the
effectiveness of the registration statement (a "Withdrawal Election"); provided,
that a Withdrawal Election shall be made prior to the effectiveness of the
registration statement and shall be irrevocable and, after making a Withdrawal
Election, such Holder shall no longer have any right to include the Piggy-Back
Shares in the Proposed Registration as to which such Withdrawal Election was
made.
4. Provision by the Holders of Certain Information in Connection with
Registration Statements. No Holder of the Shares may include any of its Shares
in any registration statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing,
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within 20 days after receipt of a request therefor, such information specified
in item 507 of Regulation S-K under the Securities Act (or any successor rule or
regulation) for use in connection with any registration statement or prospectus
or preliminary prospectus included therein. Each Holder as to which any
registration statement is being effected agrees to furnish promptly to the
Company, for so long as the registration statement is effective, all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
5. Registration Procedures. The following provisions shall be applicable to any
registration filed pursuant to this Agreement:
(a) The Company will use its best efforts to cause any registration
statement filed pursuant to Section 1 hereof covering all or any portion of the
Shares to become effective in accordance with the requirements set forth herein
and, if any stop order shall be issued by the SEC in connection with any
registration statement filed pursuant to this agreement, to use its best efforts
to obtain the removal of such order. Each Holder who agrees to include its
Shares or Piggy-Back Shares (together, the "Registrable Shares") in any
registration statement (a "Seller") agrees to cooperate in all respects with the
Company in effectuating the foregoing. Following the effective date of any
post-effective amendment or registration, the Company shall, upon the request of
any Seller, forthwith supply such number of registration statements, preliminary
prospectuses and prospectuses meeting the requirements of the Securities Act and
other documents deemed necessary by such Seller to permit such Seller to make a
public distribution of all shares of Common Stock from time to time offered or
sold by it.
(b) The Company shall bear the costs and expenses of any registration of
securities pursuant to this Agreement as set forth in Section 1(e) of the
Settlement Agreement. Notwithstanding the foregoing, each Holder shall pay all
underwriting discounts, commissions and transfer taxes, if any, relating to the
sale or disposition of such Holder's Registrable Shares pursuant to a
registration statement effected pursuant to this Agreement.
(c) The Company shall use its best efforts to register or qualify all the
Registrable Shares covered by any registration statement under such other
securities or blue sky laws of such jurisdictions as the Holders shall
reasonably request, to keep such registration or qualification in effect for so
long as the Company is required to maintain a registration statement in effect
under the Securities Act in accordance with the terms of this Agreement, and
take any other action which may be reasonably necessary or advisable to enable
the Seller to consummate the disposition of the Registrable Shares in such
jurisdictions, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this Section 5(c)
be obligated to be so qualified or to consent to general service of process or
to the imposition of taxes on, or measured by, all or any part of the income of
Company, in any such jurisdiction. The Company shall use its best efforts to
cause the registration or qualification of the Registrable Shares to be offered
and sold under the shelf registration statement described in Section 1 hereof to
become effective under the foregoing securities or blue sky laws on the next day
following the Effective
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Date or at the earliest possible time thereafter.
(d) The Company shall immediately notify the Holders at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, upon discovery that, or upon the happening of any event as a result of
which, the prospectus included in any registration statement covering all or any
part of the Registrable Shares, 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 under which they were made, and at the request of the
Holders promptly prepare and furnish to the Holders a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such securities, such
prospectus 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 not misleading in the light of the circumstances then
existing.
(e) The Company shall use its best efforts to qualify the Registrable
Shares on the principal national securities exchange on which the Common Stock
is admitted to trading or listed, or if not listed or admitted to trading on
such exchange, on The NASDAQ Stock Market, on the day next following the
Effective Date or at the earliest possible time thereafter.
(f) Each Holder agrees by acquisition of the Registrable Shares that, upon
receipt of any notice from the Company of the existence of any fact or the
happening of any event that makes any statement of a material fact made in any
registration statement or prospectus filed pursuant to this Agreement or any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
such registration statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes in such
prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, such Holder will
forthwith discontinue disposition of the Registrable Shares pursuant to the
applicable registration statement until such Holder's receipt of the copies of a
supplemented or amended prospectus, or until it is advised in writing by the
Company that the use of the prospectus may be resumed, and has received copies
of any additional or supplemental filings that are incorporated by reference in
the prospectus. If so directed by the Company, each Holder will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in such Holder's possession, of the prospectus covering such Registrable
Shares that was current at the time of receipt of such notice.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless (i) each Holder, (ii)
each person, if any, who controls a Holder within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") and (iii) the respective officers, directors,
partners, employees, representatives and agents of any Holder or any controlling
person to the fullest extent lawful, from and against any and all losses,
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liabilities, claims, damages and expenses whatsoever (including but not limited
to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any investigation or litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in a registration
statement or prospectus filed pursuant to this Agreement, or in any supplement
thereto or amendment thereof, 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, in the light of the circumstances
under which they were made, not misleading; provided, however, that the Company
will not be liable in any such case to the extent, but only to the extent, that
(i) any such loss, liability, claim, damage or expense arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such Holder expressly
for use therein and (ii) the foregoing indemnity with respect to any untrue
statement contained in or omitted from a registration statement or prospectus
shall not inure to the benefit of any Holder (or any person controlling such
Holder), from whom the person asserting any such loss, liability, claim, damage
or expense purchased any of the Registrable Shares which are the subject thereof
if it is finally judicially determined that such loss, liability, claim, damage
or expense resulted from the fact that the Holder sold such Registrable Shares
to a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the prospectus, as amended or supplemented,
and (x) the Company shall have previously and timely furnished sufficient copies
of the prospectus, as so amended or supplemented, to such Holder in accordance
with this Agreement and (y) the prospectus, as so amended or supplemented, would
have corrected such untrue statement or omission of a material fact. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have, including under this Agreement.
(b) Each Holder, severally and not jointly, agrees to indemnify and hold
harmless (i) the Company, (ii) each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act and (iii) the respective officers, directors, partners, employees,
representatives and agents of the Company or any controlling person, to the
fullest extent lawful, from against any and all losses, liabilities, claims,
damages and expenses whatsoever (including but not limited to attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing or
defending against any investigation or litigation, commenced or threatened, or
any claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or prospectus filed pursuant
to this Agreement, or in any amendment thereof 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
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therein, in the light of the circumstances under which they were made, not
misleading, in each case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Holder for use therein. This
indemnity will be in addition to any liability which a Holder may otherwise
have, including under this Agreement. In no event, however, shall the liability
of any selling Holder hereunder be greater in amount than the dollar amount of
the proceeds received by such Holder upon its sale of the Registrable Shares
giving rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this Section 6 except to the extent that it has been prejudiced
in any material respect by such failure). 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 it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action, or (ii) such indemnifying party
or parties shall have reasonably concluded in good faith that a conflict of
interest exists which makes representation by counsel chosen by the indemnifying
parties not advisable (in which case the indemnifying party or parties shall not
have the right to direct the defense of such action on behalf of the indemnified
party or parties), in any of which events such fees and expenses of counsel
shall be borne by the indemnifying parties; provided, however, that the
indemnifying party under subsection (a) or (b) above, shall only be liable for
the legal expenses of one counsel (in addition to any local counsel) for all
indemnified parties in each jurisdiction in which any claim or action is
brought. Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or action
effected without its prior written consent.
(d) In order to provide for contribution in circumstances in which the
indemnification provided for in this Section 6 is for any reason held to be
unavailable from the Company or is insufficient to hold harmless a party
indemnified thereunder, the Company and each Holder shall contribute to the
aggregate losses, claims, damages, liabilities and expenses of the nature
contemplated by such indemnification provision (including any investigation,
legal and other expenses incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claims asserted, but after
deducting in the case of losses, claims, damages, liabilities and expenses
suffered by the Company, any contribution received by the Company
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from persons, other than the Holders, who may also be liable for contribution,
including persons who control the Company within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act) to which the Company
and any Holder may be subject, in such proportion as is appropriate to reflect
the relative benefits received by the Company from the issuance of Registrable
Shares and any such Holder from its sale of Registrable Shares or, if such
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in this Section 6, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Company and the Holders in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and any Holder shall be deemed to be in the same proportion as (x)
the total value of the Registrable Shares and (y) the total proceeds received by
such Holder upon its sale of Registrable Shares which would otherwise give rise
to the indemnification obligation, respectively. The relative fault of the
Company and of the Holders 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 or the Holders and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section 6 were determined by
pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to above. Notwithstanding the
provisions of this Section 6, (i) no Holder shall be required to contribute, in
the aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of its Registrable Shares exceeds the sum
of (A) the value of the Registrable Shares sold by such Holder plus (B) the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission and (ii) 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. For purposes of this Section 6, (1) each person, if any, who
controls a Holder within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act and (2) the respective officers, directors,
partners, employees, representatives and agents of a Holder or any controlling
person shall have the same rights to contribution as such Holder, and (3) each
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act and (4) the respective officers,
directors, partners, employees, representatives and agents of the Company or any
controlling person shall have the same rights to contribution as the Company,
subject in each case to clauses (i) and (ii) of this Section 6(d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Section
6, notify such party or parties from whom contribution may be sought, but the
failure to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 6 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its prior
written consent.
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(e) If any offering hereunder is underwritten, the Sellers thereunder agree
to enter into customary indemnity arrangements with the underwriters thereunder
similar to those provided in this paragraph 6.
7. Notices. All notices, consents, instructions and other communications
required or permitted under this Agreement shall be effective only if given in
writing and shall be considered to have been duly given when (i) delivered by
hand, (ii) sent by telecopier (with receipt confirmed), provided that a copy is
mailed (on the same date) by certified or registered mail, return receipt
requested, postage prepaid, or (iii) received by the addressee, if sent by
Express Mail, Federal Express or other reputable express delivery service
(receipt requested), or by first class certified or registered mail, return
receipt requested, postage prepaid. Notice shall be sent in each case to the
appropriate addresses or telecopier numbers set forth below (or to such other
addresses and telecopier numbers as a party may from time to time designate as
to itself by notice similarly given to the other parties in accordance herewith,
which shall not be deemed given until received by the addressee). Notice shall
be given:
(i) to Sixth Avenue at:
c/o Keswick Management Inc.
1330 Avenue of the Xxxxxxxx, 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Reade X. Xxxx, Xx., Esq.
Telephone: 000-000-0000
Telecopier: 212-848-7179
(ii) to Universal at:
Twin Bridges Closters Dock Road
Alpine, New Jersey 07620
Attention: Xxxxxxx X. Xxxxxxxx - Xxxxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
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with copies to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: 000-000-0000
Telecopier: 000-000-0000
Xxxxxxxx Xxxxxx & Xxxx
000 Xxxxxxxx Xxxxxxxx
Xxxxxxx Xxxx, Xxx Xxxxxx 00000
Telephone: 000-000-0000
Telecopier:
(iii) to Thorn Tree at:
Thorn Tree Resources LLC
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a copy to:
Kronish Xxxx Xxxxxx & Xxxxxxx LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telephone: 000-000-0000
Telecopier: 000-000-0000
(iv) to the Company at:
00000 Xxxx Xxxxxx Xxxxxx, Xxxxx X-000
Xxxxxxxx, Xxxxxxxx 00000
Attention:
Telephone:
Telecopier:
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with a copy to:
000 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: 000-000-0000
Telecopier: 000- 000-0000
8. Governing Law; Waiver of Jury Trial. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed and to be performed entirely within that State. Any suit
brought herein shall be brought in the state or federal courts sitting in New
York, New York, the parties hereto waiving any claim or defense that such forum
is not convenient or proper. Each party hereby agrees that any such court shall
have in personam jurisdiction over such party and consents to service of process
by any means authorized by New York law. EACH OF THE PARTIES HERETO HEREBY
WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY OR
AGAINST IT ON ANY MATTERS WHATSOEVER, IN CONTRACT OR IN TORT, ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT.
9. Amendments. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions
hereof may not be given unless the Company has obtained the written consent of
the Holders of a majority of the outstanding Shares, except that any amendment
that adversely affects the rights of Universal hereunder shall require the
written consent of Universal, and any amendment that adversely affects the
rights of Sixth Avenue hereunder shall require the written consent of Sixth
Avenue.
10. Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect.
11. Entire Agreement. This Agreement constitutes the entire agreement of the
parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and undertakings (other than the Settlement Agreement), both
written and oral, among the Holders and the Company with respect to the subject
matter hereof.
12. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the
parties hereto and their permitted assigns and nothing herein, express or
implied, is intended to or shall confer upon any other person or entity any
legal or equitable right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.
13. Headings. The descriptive headings contained in this Agreement are included
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
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14. Counterparts. This Agreement may be executed in any number of counterparts,
and by different parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which when taken together
shall constitute one and the same agreement.
15. Assignment. Universal shall not assign its right to register the Retained
Shares under this Agreement. Subject to the preceding sentence, each of the
Holders shall not assign its rights and obligations under this Agreement without
the prior written consent of the Company, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, each of the Holders may
assign its rights under this Agreement without the consent of any other party
hereto in connection with the transfer, conveyance or sale of that number of
Registrable Shares equal to or greater than 10% of all the Registrable Shares.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, and intending to be legally bound thereby, the parties
hereto have duly executed and delivered this Agreement or caused this Agreement
to be duly executed and delivered by their duly authorized officers as of the
date and year first above written.
EMEX CORPORATION
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: President
THORN TREE RESOURCES LLC
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Manager
UNIVERSAL EQUITIES CONSOLIDATED LLC
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Manager
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager
SIXTH AVENUE ASSOCIATES LLC
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Manager
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