Exhibit 6.28
Xxxxxx Capital Corp.
Amended and Restated Nonqualified Stock Option Grant Agreement
--------------------------------------------------------------
Xxxxxx X. Xxxxxxxx
This Amended and Restated Non-Qualified Stock Option Grant Agreement,
dated as of April 5, 2004 (the "Agreement"), is entered into by and between
Xxxxxx Capital Corp., a Nevada corporation (the "Company") and Xxxxxx X.
Xxxxxxxx (the "Participant").
Number of Shares: 500,000
Date of Grant: November 26, 2002
Date of Hire: October 3, 2002
WHEREAS, pursuant to a Non-Qualified Stock Option Grant Agreement by and
between the Company and the Participant, dated November 26, 2002 (the "Prior
Agreement"), the Company previously granted to the Participant an option (the
"Option") to purchase the number of shares stated above (the "Shares") of the
Company's Common Stock, par value $.001 per share (the "Common Stock");
WHEREAS, the Prior Agreement may be amended pursuant to Section 12 thereof
with the consent of the Participant;
WHEREAS, the Company and the Participant now desire to amend and restate
the Prior Agreement in the manner provided below;
Reference is made to the fact that the Participant is, as of the date of
grant, party to an Employment Agreement with the Company, dated as of November
26, 2002 (the "Employment Agreement"), and to the fact that the Option is
granted to the Participant pursuant to the terms of the Employment Agreement and
in consideration of the Participant's services to the Company under the
Employment Agreement.
The Participant hereby accepts the Option, subject to the terms and
conditions set forth in the following terms and conditions:
1. Type of Option. The Option is not intended to, and shall not, be
treated as an "incentive stock option" within the meaning of Section 422 of the
Internal Revenue Code of 1986, as amended (the "Code").
2. Exercise Price. The price at which Shares may be purchased pursuant to
the Option is $0.25 per share.
3. Option Period. The Option expires one (1) day less than ten (10) years
from the Grant Date.
4. Vesting of Right to Exercise. Subject to Section 3, the Participant's
right to exercise the Option shall vest in accordance with the table attached
hereto as Attachment A (the "Vesting Schedule"), with the percentage set forth
in any row of the right hand column of the Vesting Schedule being the maximum
percentage of the Shares which are fully vested shares (the "Vested Shares"), on
a cumulative basis, at any time during the period beginning on the corresponding
date set forth in the left hand column of the Vesting Schedule, so long as such
period has been completed, and, for all but the last row of the Vesting
Schedule, ending on the day immediately preceding the date set forth in the left
hand column of the next row of the Vesting Schedule. Notwithstanding anything to
the contrary herein, (i) in the event of a Change in Control (as defined below)
that is effective during the Participant's employment with the Company, this
Option may be exercised immediately prior to such Change in Control with respect
to all of the Shares that are the subject of this Option, and (ii) in the event
that the Participant's employment is involuntarily terminated by the Company
without Cause (as such term is defined in that certain Employment Agreement,
dated November 26, 2002, by and between the Company and the Participant), this
Option may be exercised with respect to all of the Shares that are the subject
of this Option. A "Change of Control" shall mean and include the following:
(a) a merger or consolidation of the Company with or into any other
corporation or other entity (i) in which the Company is not the surviving entity
or (ii) in which the Company is the surviving entity but in which holders of the
Company's Voting Securities (as defined below) immediately prior to such merger
or consolidation will not continue to hold at least a majority of the
outstanding Voting Securities of the Company;
(b) a sale, lease, exchange or other transfer (in one transaction or
a related series of transactions, but excluding any merger or consolidation not
having an effect described in the preceding clause) of all or substantially all
of the Company's assets;
(c) the acquisition by any person or any group of persons, acting
together in any transaction or related series of transactions, of such quantity
of the Company's Voting Securities as causes such person, or group of persons,
to own beneficially, directly or indirectly, as of the time immediately after
such transaction or series of transactions, 50% or more of the combined voting
power of the Voting Securities of the Company other than as a result of (i) an
acquisition of securities directly from the Company or (ii) an acquisition of
securities by the Company which by reducing the Voting Securities outstanding
increases the proportionate voting power represented by the Voting Securities
owned by any such person or group of persons to 50% or more of the combined
voting power of such Voting Securities; or
(d) the liquidation or dissolution of the Company.
"Voting Securities" means with respect to any corporation or other entity,
securities having the right to vote in an election of the board of directors, or
the equivalent of a board of directors, of such corporation or other entity.
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5. Exercise.
(a) The Option may be exercised from time to time with respect to
all or any part of the Shares as to which it is exercisable at the time;
provided, however, that it may not be exercised as to less than ten percent
(10%) of the Shares at any one time, except with respect to the remaining Shares
then purchasable under the Option, if less than ten percent (10%) of the Shares.
No fractional Shares may be purchased except in combination with a fraction or
fractions under another presently exercisable option, and then only to the
extent that such combination equals a full Share.
(b) To exercise the Option, the Participant (or other person
exercising the Option) must deliver to the Company the following:
1. a completed and signed notice of exercise, in the form of
Attachment B hereto, stating the number of Shares to be purchased. If the
Option is being exercised by a person other than the Participant, the
notice of exercise must be accompanied by proof of the right of such
person to exercise the Option and such other pertinent information as the
Company deems necessary;
2. two (2) signed Stock Restriction Agreements (the "Stock
Restriction Agreement"), in the form attached hereto as Attachment C, and
such other agreements, instruments or documents as the Company may
reasonably require to comply with the requirements of the Securities Act
of 1933, as amended, or any applicable state securities laws. The shares
purchased pursuant to exercise of the Option shall be subject to the
restrictions and limitations set forth in such agreements; and
3. payment in full of the exercise price for the Shares being
purchased in cash or by certified check, bank draft or money order made
payable to the order of the Company.
In addition, the exercise of an Option shall be subject to satisfaction of all
conditions the Company's Board of Directors (the "Board") may impose on the
exercise of such Option pursuant to this Agreement, and any such exercise shall
be effective only after all such conditions have been satisfied.
6. No Rights as Stockholder. The Participant (or any other person entitled
to exercise the Option) shall not be entitled to any rights as a stockholder of
the Company with respect to any Shares covered by the Option until such Shares
shall have been registered on the stock transfer books of the Company in the
name of the Participant (or such other person).
7. Section 16 Requirements. If Participant is subject to Section 16(a) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), any
retention of Shares by the Company to satisfy a tax obligation with respect to
such Participant shall be made in compliance with any applicable requirements of
Rule 16b-3(e) or any successor rule under
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the Exchange Act. Additionally, (i) any Shares offered to a Participant subject
to Section 16 of the Exchange Act (a "Section 16 Participant") may not be sold
for six (6) months after acquisition; (ii) any Shares or other equity security
acquired by a Section 16 Participant upon exercise of an Option may not be sold
for six (6) months after the date of grant of the Option; and (iii) any Option
or other similar right related to an equity security shall not be transferable
except in accordance with the rules under Section 16 of the Exchange Act,
subject to any other applicable transfer restrictions under this Agreement.
8. Compliance with Laws, Regulations and Rules. This Agreement, the Option
and the obligation of the Company to sell and deliver the Shares upon exercise
of the Option are and shall be subject to (a) all applicable laws, government
regulations and rules and (b) all applicable regulations and rules adopted by
the Board. If at any time the Board determines in its discretion that the
listing, registration or qualification, on any securities exchange or under any
federal or state law, of the Shares deliverable upon exercise of the Option, or
the consent or approval of any regulatory body, or compliance with any law, rule
or regulation, is necessary or desirable as a condition of, or in connection
with, the delivery or purchase of Shares, then exercise of the Option shall not
be effective unless such listing, registration, qualification, consent, approval
or compliance shall have been effected or obtained free of any conditions not
acceptable to the Board.
9. Legend on Certificates. Each certificate representing the Shares shall
bear restrictive legends referring to the restrictions on transfer and
repurchase rights of the Company contained in the Stock Restriction Agreement
and the restrictions on transfer imposed by the Securities Act of 1933, as
amended, and any applicable exemption therefrom pursuant to which the Shares may
be issued.
10. No Impairment Of Rights Under Management Agreement; No Employment
Rights. Nothing in the Option or this Option Agreement impairs the right of the
Company to terminate the Management Agreement in accordance with its terms or,
confers upon the Participant any right to continued employment or interferes
with the right of the Company to terminate the Participant's employment.
11. Taxes. As a condition of issuance of Shares under this Option, the
Company shall have the right to require the Participant or other person
exercising the Option to remit to the Company an amount sufficient to satisfy
any federal, state or local withholding tax requirements or make other
arrangements satisfactory to the Company with regard to such taxes.
12. Amendments. The Board may at any time or times amend the Option for
the purpose of satisfying the requirements of any changes in applicable laws or
regulations or for any other purpose which at the time may be permitted by law.
No termination or amendment of the Option shall, without the Participant's
consent, adversely affect the Participant's rights under the Option.
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IN WITNESS WHEREOF, the Company and the Participant have executed this
Agreement as of the date first above written.
THE COMPANY:
Xxxxxx Capital Corp.
By:
----------------------------
Name:
Title:
THE PARTICIPANT:
-------------------------------
(Signature of Participant)
-------------------------------
(Printed Name of Participant)
-------------------------------
(Residence Street Address)
-------------------------------
(City) (State) (Zip Code)
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Attachment A
Vesting Schedule
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Percentage of Shares that are
Date Vested Shares
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Date of hire 0%
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Date of hire plus 1 month 2.7777%
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Date of hire plus 2 months 5.5555%
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Date of hire plus 3 months 8.3333%
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Date of hire plus 4 months 11.1111%
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Date of hire plus 5 months 13.8888%
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Date of hire plus 6 months 16.6666%
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Date of hire plus 7 months 19.4444%
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Date of hire plus 8 months 22.2222%
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Date of hire plus 9 months 25%
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Date of hire plus 10 months 27.7777%
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Date of hire plus 11 months 30.5555%
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Date of hire plus 12 months 33.3333%
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Date of hire plus 13 months 36.1111%
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Date of hire plus 14 months 38.8888%
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Date of hire plus 15 months 41.6666%
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Date of hire plus 16 months 44.4444%
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Date of hire plus 17 months 47.2222%
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Date of hire plus 18 months 50%
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Date of hire plus 19 months 52.7777%
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Date of hire plus 20 months 55.5555%
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Date of hire plus 21 months 58.3333%
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Date of hire plus 22 months 61.1111%
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Date of hire plus 23 months 63.8888%
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Date of hire plus 24 months 66.6666%
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Date of hire plus 25 months 69.4444%
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Date of hire plus 26 months 72.2222%
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Date of hire plus 27 months 75%
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Date of hire plus 28 months 77.7777%
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Date of hire plus 29 months 80.5555%
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Date of hire plus 30 months 83.3333%
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Date of hire plus 31 months 86.1111%
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Date of hire plus 32 months 88.8888%
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Date of hire plus 33 months 91.6666%
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Date of hire plus 34 months 94.4444%
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Date of hire plus 35 months 97.2222%
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Date of hire plus 36 months 100%
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Xxxxxx Capital Corp. Participant
By: By:
---------------------------- ----------------------
Name: Name:
Title:
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Attachment B
Form of Notice of Exercise of Stock Option
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(To be completed and signed only on exercise of Option)
I hereby exercise the stock option (the "Option") granted by Xxxxxx Capital
Corp., a Nevada corporation (the "Company"), to me on _____________, subject to
all the terms and provisions thereof as contained in the Nonqualified Stock
Option Grant Agreement of the same date signed by me concerning such Option, and
notify you of my desire to purchase _______ Shares pursuant to the Option.
Enclosed is my check in the sum of $ __________ in full payment for such Shares
and applicable withholding taxes.
I also enclose completed and signed duplicate Stock Restriction Agreements in
the required form.
DATED: .
----------------
Signature:
-----------------------------
Name:
-----------------------
Attachment C
Xxxxxx Capital Corp.
Stock Restriction Agreement
AGREEMENT (this "Agreement"), dated as of ______________, by and between
Xxxxxx Captial Corp., a Nevada corporation (the "Company"), and
_________________________________ (the "Stockholder"), who is purchasing
________ shares of the Company's Common Stock pursuant to the exercise of an
option (the "Option") (such shares of Common Stock presently owned and any
additional shares which the Stockholder may acquire upon exercise of the Option
or otherwise being hereinafter collectively called the "Shares").
WHEREAS, at or prior to the date of this Agreement, the Stockholder has
purchased all or a portion of the Shares; and
WHEREAS, the Company and the Stockholder believe it is in the best
interests of the Company and of the Stockholder that certain restrictions be
placed upon all of the Shares;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Restrictions on Transfer.
(a) No Transfer. The Stockholder shall not sell, assign, transfer,
pledge, hypothecate or otherwise dispose of, by operation of law or otherwise
(collectively "transfer"), any of the Shares, or any interest therein, unless
such transfer shall be made in compliance with the provisions of Section 2 of
this Agreement.
(b) Investment Representation. The Stockholder hereby represents,
warrants and agrees with the Company that her or she is acquiring the Shares for
his or her own account, for investment and not with a view to or in connection
with any distribution thereof. The Stockholder shall not transfer any Shares
unless either (i) a registration statement under the Securities Act of 1933, as
amended (the "Act"), with respect to the Shares shall have become, and continue
to be, effective, or (ii) the Company receives an opinion of counsel that
registration of such Shares is not required under the Act.
2. Right of First Refusal.
(a) Receipt of Third-Party Offer. If at any time the Stockholder
desires to sell for cash, cash equivalents or any other form of consideration
(including a promissory note) all or any part of the Shares pursuant to an offer
or proposed offer from a third party
(the "Proposed Transferee"), the Stockholder shall provide written notification
to the Company, including a submission of a written offer (the "Offer") to sell
such Shares (the "Offered Shares") to the Company on terms and conditions,
including price, not less favorable to the Company than those on which the
Stockholder proposes to sell such Offered Shares to the Proposed Transferee. The
Offer shall disclose the identity of the Proposed Transferee, the number of
Offered Shares proposed to be sold, the total number of Shares owned by the
Stockholder, the terms and conditions, including price, of the proposed sale,
and any other material facts relating to the proposed sale. The Offer shall
further state that the Company may acquire, in accordance with the provisions of
this Agreement, all or any portion of the Offered Shares for the price and upon
the other terms and conditions, including deferred payment (if applicable), set
forth therein.
(b) Company Notice of Intent to Purchase. If the Company desires to
purchase all or any portion of the Offered Shares, the Company shall give to the
Stockholder written notice of the number of Offered Shares to be purchased by
it, which notice shall be delivered in person or mailed to the Stockholder
within twenty (20) days of the date of the Offer. Such communication shall, when
taken in conjunction with the Offer, be deemed to constitute a valid, legally
binding and enforceable agreement for the sale and purchase of such Offered
Shares. A sale of the Offered Shares to be sold to the Company pursuant to this
Section 2 shall be made at the offices of the Company on the forty-fifth (45th)
day following the date of the Offer (or, if such day is not a business day, then
on the next succeeding business day). Such sale shall be effected by the
Stockholder's delivery to the Company of a certificate or certificates
evidencing the Offered Shares to be purchased by the Company, duly endorsed for
transfer to the Company, against payment to the Stockholder of the purchase
price therefor by the Company by a certified or cashier's check.
(c) Sale to Third Party. Subject to Section 2(e), if, within twenty
(20) days of its receipt of the Offer, the Company fails to deliver written
notice to the Stockholder of its intention to purchase all of the Offered Shares
(the Offered Shares which the Company does not elect to purchase being referred
to as the "Refused Shares"), the Refused Shares not so purchased may be sold by
the Stockholder at any time within ninety (90) days after the date the Offer was
made to the Proposed Transferee, at not less than the price and upon other terms
and conditions, if any, not more favorable to the Proposed Transferee than those
specified in the Offer. If the Refused Shares are not sold within the ninety
(90) day period, they shall continue to be subject to the requirements of a
prior offer pursuant to this Section 2. If the Refused Shares are sold pursuant
to this Section 2 to any purchaser who is not a party to this Agreement, the
Company, may at its option, require the purchaser to execute and deliver a new
Stock Restriction Agreement in substantially the form of this Agreement
containing substantially the same terms as those set forth herein.
(d) Permitted Transfers. Subject to Section 2(e), the Stockholder
shall have the right to make Permitted Transfers of the Stockholder's Shares and
the provisions of subsections (a), (b) and (c) above shall not apply to any such
Permitted Transfer by the Stockholder. For purposes of this Agreement,
"Permitted Transfer" shall mean any
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transfer by the Stockholder during his or her lifetime of all or any portion of
his or her Shares (i) to the Company, (ii) to another holder of issued and
outstanding shares of capital stock of the Company, (iii) to or for the benefit
of any spouse, child or grandchild of the Stockholder, or to a trust for the
benefit of any of the foregoing, including transfers by will or the laws of
descent and distribution; provided, however, that, it shall be a condition of
each such transfer, that (x) the transferee agrees to be bound by the terms of
this Agreement as though no such transfer had taken place, and that (y) the
Stockholder has complied with all applicable law in connection with such
transfer.
(e) Prohibition of Transfer. Notwithstanding the foregoing
provisions of this Section 2, the Company may prohibit transfers of the Shares
to the extent it may do so under the laws of the State of Nevada. If the Company
desires to prohibit the Stockholder from transferring any Offered Shares to a
Proposed Transferee pursuant to Section 2(c), it shall give to the Stockholder
written notice of such prohibition within twenty (20) days of the date of the
related Offer to the Company pursuant to Section 2(a). If the Company delivers
such a notice to the Stockholder with respect to any proposed transfer of
Offered Shares to a Proposed Transferee, the Stockholder shall not be entitled
to transfer the Offered Shares covered by such notice to the Proposed
Transferee.
3. Effect of Prohibited Transfer. The Company shall not be required (a) to
transfer on its books any of the Shares which shall have been sold or
transferred in violation of any of the provisions set forth in this Agreement,
or (b) to treat as owner of such Shares, or to pay dividends to, any transferee
to whom any such Shares shall have been so sold or transferred.
4. Restrictive Legend. All certificates representing Shares shall have
affixed thereto a legend in substantially the following form, in addition to any
other legends that may be required under federal or state securities laws:
The shares of stock represented by this certificate are subject to
restrictions upon transfer set forth in a certain Stock Restriction
Agreement between the Company and the registered owner of this
certificate. The Company will furnish a copy of such Agreement to the
holder of this certificate upon written request and without charge.
5. Section 16 Requirements. If Participant is subject to Section 16(a) of
the Exchange Act, (i) any Shares offered to a Section 16 Participant may not be
sold for six (6) months after acquisition; (ii) any Shares or other equity
security acquired by a Section 16 Participant upon exercise of an Option may not
be sold for six (6) months after the date of grant of the Option; and (iii) any
Option or other similar right related to an equity security shall not be
transferable except in accordance with the rules under Section 16 of the
Exchange Act, subject to any other applicable transfer restrictions under this
Agreement.
6. Adjustments for Stock Splits, Stock Dividends, Etc. If from time to
time while this Agreement shall remain in force and effect there is any stock
split-up, stock dividend,
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stock distribution or other reclassification of the Common Stock of the Company,
any and all new, substituted or additional securities to which the Stockholder
is entitled by reason of his ownership of Shares shall be immediately subject to
the restrictions on transfer and other provisions of this Agreement in the same
manner and to the same extent as such Shares.
7. Miscellaneous.
(a) Termination of Restrictions on Transfer. This Agreement, and the
obligations of the Stockholder and the Company hereunder, shall terminate upon
the earliest to occur of: (i) the effective date of a registration statement
under the Act, with respect to the Shares; (ii) the date on which the Shares
become freely saleable under Rule 144 of the Act; (iii) the sale of all or
substantially all of the shares of capital stock, the assets or business of the
Company, by merger, sale of assets or otherwise; or (iv) the expiration of ten
(10) years from the date of this Agreement. The sale of the Shares pursuant to
any of the transactions described in clauses (i), (ii) and (iii) of the
preceding sentence shall not be subject to the provisions of said Section 1(a)
and Section 2.
(b) Severability; Governing Law. If any provisions of this Agreement
shall be determined to be illegal or unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with their
terms. This Agreement shall be governed by, and construed in accordance with,
the laws of the state of the Company's incorporation.
(c) Injunctive Relief. It is acknowledged that it will be impossible
to measure the damages that would be suffered by the Company if the Stockholder
fails to comply with the provisions of this Agreement and that, in the event of
any such failure, the Company will not have an adequate remedy at law. The
Company shall, therefore, be entitled to obtain specific performance of each of
the Stockholder's obligations hereunder and to obtain immediate injunctive
relief. The Stockholder shall not urge, as a defense to any proceeding for such
specific performance or injunctive relief, that the Company has an adequate
remedy at law.
(d) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns.
(e) Modification or Amendment. Neither this Agreement nor any
provision hereof can be modified, amended, changed, discharged or terminated
except by an instrument in writing, signed by the Stockholder and the Company.
(f) Notices. All notices required or permitted hereunder shall be in
writing and deemed effectively given upon personal delivery, upon deposit with
the United States Post Office, by registered, certified mail, postage prepaid,
or upon deposit with a recognized express overnight courier service, addressed,
if to the Company, to Xxxxxx Capital Corp., 00 Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention:
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President, and if to the Stockholder, to the address shown beneath his or her
respective signature to this Agreement, or at such other address or addresses as
either party shall designate to the other in accordance with this subsection
(f).
(g) Merger Provision. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings, whether
oral or written, of the parties hereto concerning the subject matter hereof.
(h) Waivers. Any provision contained in this Agreement may be
waived, either generally or in any particular instance, by the Board of
Directors of the Company. Waivers will not be unreasonably withheld.
(i) Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and the Stockholder.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE COMPANY:
Xxxxxx Capital Corp.
By:
----------------------------
Name:
Title:
THE STOCKHOLDER:
-------------------------------
(Signature of Stockholder)
-------------------------------
(Printed Name of Stockholder)
-------------------------------
(Residence Street Address)
-------------------------------
(City) (State) (Zip Code)
6
