EXHIBIT 4.8
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made this day
of March, 1999, by and between Innovative Valve Technologies, Inc., a Delaware
corporation ("IVT"), Chase Bank of Texas, National Association, Xxxxx Fargo Bank
(Texas), National Association, Bank of America Texas, N.A., Comerica Bank-Texas,
and National City Bank of Kentucky (each a "MEMBER" and collectively, the "BANK
GROUP").
WHEREAS, concurrently with the execution hereof, IVT is issuing to the
Bank Group Warrants ("WARRANTS") exercisable for an aggregate of 482,262 shares
of IVT's outstanding common stock, par value $0.001 per share (the "WARRANT
SHARES"), subject to adjustment as set forth in the Warrants; and
WHEREAS, IVT desires to grant to the Bank Group certain registration
rights in respect of the Warrant Shares as provided in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, IVT and the Members of the Bank Group hereby agree
as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the meanings specified below, whether or not capitalized or
underlined in the text of the Agreement:
(a) "CHANGE OF CONTROL TRANSACTION" shall mean (1) the acquisition by
any Person (including any syndicate or group deemed to be a "person"
under Section 13(d) or 14(d)(2) of the Exchange Act, or any successor
provision) of beneficial ownership, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of
transactions, of shares of capital stock of the Company entitling such
person to exercise more than 50% of the total voting power of all
shares of capital stock of the Company entitling the holders thereof to
vote generally in elections of directors; or (2) any consolidation of
the Company with, or merger of the Company into, any other Person, any
merger of another Person into the Company, or any sale, lease or
exchange of all or substantially all of the property and assets of the
Company (other than a transaction which (x) does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of capital stock of the Company or (y) is effected primarily to
change the jurisdiction of incorporation of the Company and results in
a reclassification, conversion or exchange or outstanding shares of
Common Stock solely into shares of common stock of the surviving
entity).
(b) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any rulings, regulations, or
interpretations promulgated thereunder by the United States Securities
and Exchange Commission ("SEC").
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(c) "EXEMPT OFFERING" shall mean any offering by IVT of shares of
common stock (i) in connection with or pursuant to any benefit,
compensation, incentive or saving plan or program in which solely the
officers, directors, employees or independent contractors of IVT or any
of its subsidiaries participate, (ii) as consideration in any business
combination or acquisition transaction, (iii) filed in connection with
an exchange offer or offering of common stock or of securities
convertible or exchangeable into common stock made solely to IVT's
existing stockholders in connection with a rights offering, or (iv)
made pursuant to Regulation S under the Securities Act (or any similar
provision then in force).
(d) "IVT" shall mean Innovative Valve Technologies, Inc., a Delaware
corporation, and any corporation or business entity resulting from the
merger, consolidation, or conversion of IVT.
(e) "MAJORITY IN INTEREST" shall mean the holders of greater than 60%
of the then outstanding Warrants and/or Warrant Shares.
(f) "MATERIAL ADVERSE EFFECT" shall mean any material adverse change in
the condition (financial or otherwise), business, operations,
properties, prospects, assets or liabilities of IVT (whether or not
covered by insurance).
(g) "PERSON" shall mean any natural person, sole proprietorship,
corporation, partnership, limited liability company, business trust,
unincorporated organization or association, estate, trust or other
entity.
(h) "REGISTRABLE SHARES" shall mean the Warrant Shares and any
securities issued or issuable with respect to the Warrant Shares by way
of dividend or split or in connection with a combination of shares,
recapitalization, reclassification, merger, consolidation or other
reorganization or otherwise.
(i) "SECURITIES ACT" shall mean the Securities Act of 1933, as amended
from time to time, and any rulings, regulations, or interpretations
promulgated thereunder by the SEC.
2. PIGGYBACK REGISTRATION RIGHTS.
(a) If IVT at any time proposes to file on its behalf and/or on behalf
of any of its stockholders a registration statement under the
Securities Act on any registration form (other than pursuant to an
Exempt Offering) for any class that is the same or substantially
similar to the Registrable Shares, it will give written notice to each
Member, setting forth the terms of the proposed offering and such other
information as Member may reasonably request, at least 21 days before
the initial filing with the SEC of such registration statement, and
offer to include in such filing all or any portion of such Registrable
Shares as each such Member may request. If any Member desires to have
all or any portion of the Registrable Shares registered under this
SECTION 2, each Member shall advise IVT in writing within 15 days after
the date of receipt of such offer from IVT, setting forth the amount of
such Registrable
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Shares for which registration is requested. IVT shall thereupon include
in such registration statement the amount of the Registrable Shares for
which registration is so requested, and shall use its best efforts to
effect registration under the Securities Act of such Registrable
Shares.
(b) Notwithstanding the foregoing, if in the reasonable opinion of the
managing underwriter (or financial advisor of IVT if not an
underwritten public offering) the success of the offering would be
adversely affected by inclusion of the Registrable Shares requested to
be included, then the amount of securities to be offered by the Bank
Group shall be reduced (pro rata among the applicable Members) to the
extent necessary to reduce the total amount of securities to be
included in such offering to the amount recommended by such managing
underwriter (or financial advisor); PROVIDED, that if securities are
being offered for the account of other persons or entities as well as
IVT, then with respect to the Registrable Shares, the proportion by
which the amount of the Registrable Shares is reduced shall not exceed
the proportion by which the amount of such class of securities intended
to be offered by such other persons or entities (other than IVT) is
reduced.
3. DEMAND REGISTRATION RIGHTS.
(a) At any time following the earlier to occur of (i) April 1, 2000, or
(ii) a Change of Control Transaction , a Majority in Interest may
request IVT, by written notice (a "DEMAND NOTICE"), to register under
the Securities Act (a "DEMAND REGISTRATION") all or any portion of the
Registrable Shares held by the Bank Group on terms and conditions
comparable to those normally applicable to offerings of similar
securities in reasonably similar circumstances, including, without
limitation, a continuous or "shelf" registration statement, it being
specifically agreed that the Bank Group shall be allowed only one
Demand Registration. A registration pursuant to this Section 3 shall
not be deemed to have been effected (and it shall not count as a Demand
Registration) unless the registration statement relating to all
Registrable Shares requested to be included has become effective under
the Securities Act; provided, however, if after the registration
statement has become effective, (i) the offering pursuant to
registration is interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court
or (ii) the Bank Group's right to make sales of Registrable Shares is
suspended by IVT as described in Section 3(b), such registration will
not be deemed to have been effected (and it shall not count as a Demand
Registration).
(b) Promptly following receipt of any Demand Notice under this SECTION
3, IVT shall use its best efforts to register under the Securities Act
the Registrable Shares specified in the Demand Notice; provided,
however, that IVT shall not be required to maintain the effectiveness
of any registration statement pursuant to this Agreement for a period
in excess of the lesser of (i) one year or (ii) the completion of the
distribution, in each case exclusive of any period of time during which
the right of the Members to make sales thereunder or the effectiveness
of such registration statement is suspended by IVT as provided in this
SECTION 3. A request shall be considered made only when (i) all of the
Registrable Shares
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requested to be included in any such registration has been so included,
(ii) the corresponding registration statement has become effective
under the Securities Act, and (iii) the public offering has been
consummated on the terms and conditions specified therein or, if not
consummated, such failure was not attributable to an action taken by
IVT. Notwithstanding anything to the contrary contained herein, IVT
shall not be obligated to prepare and file any registration statement
pursuant to this SECTION 3, or prepare or file any amendment or
supplement thereto, and may suspend the Members' right to make sales of
the Registrable Shares pursuant to an effective registration statement,
at any time when IVT, in the good faith judgment of its Board of
Directors, reasonably believes that the filing thereof at the time
requested, or the offering of securities pursuant thereto, would
materially and adversely affect a pending or proposed public offering
of IVT's securities, or an acquisition, merger, recapitalization,
consolidation, reorganization or similar transaction or negotiations,
discussions or pending proposals with respect thereto. The filing of a
registration statement, or any amendment or supplement thereto, by IVT
cannot be deferred, and the Members' right to make sales pursuant to an
effective registration statement cannot be suspended, pursuant to the
provisions of the preceding sentence, for more than 60 days after the
abandonment or consummation of any of the foregoing offerings,
proposals or transactions or, in any event, for more than 90 days after
the date of the Board's determination pursuant to the preceding
sentence of this SECTION 3.
(c) IVT shall not be required by this SECTION 3 to include a Member's
Registrable Shares in any registration statement which is to be filed
if, in the opinion of counsel for such Member and IVT (or, should they
not agree, in the opinion of another counsel experienced in securities
law matters acceptable to counsel (or such Member and IVT)), the
proposed offering or other transfer as to which such registration is
requested is exempt from applicable federal and state securities laws
and would result in all purchasers or transferees obtaining securities
which are not "restricted securities," as defined in Rule 144 under the
Securities Act of 1933, as amended.
4. OBLIGATIONS OF IVT. Whenever required under this Agreement to effect the
registration of all or any portion of the Registrable Shares, IVT shall, as
expeditiously as possible:
(a) Prepare and file with the SEC a registration statement with respect
to such Registrable Shares and use its best efforts to cause such
registration statement to become and remain effective for the period of
distribution as contemplated thereby, including, without limitation,
the period necessary to allow distribution in accordance with any
request for a "shelf" registration as contemplated by SECTION 3(A)
hereof.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with
such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement including, without
limitation, the period necessary to allow distribution in accordance
with any request for a "shelf" registration as contemplated by SECTION
3(A) hereof.
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(c) Furnish to each Member and to each underwriter such numbers of
copies of the registration statement and the prospectus included
therein, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they
may reasonably request in order to facilitate the disposition of the
Registrable Shares owned by such Member.
(d) Immediately notify each Member in writing at any time when a
prospectus relating to any such Member 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
such prospectus will not contain an untrue statement of a material
fact, or omit to state any material fact required to be stated therein
or necessary to make the statement therein not misleading, and promptly
prepare and make available to each such Member any such supplement or
amendment, promptly after such supplement or amendment may be used in
connection with the offer for sale of the Registrable Shares without
thereby violating any federal or state securities laws.
(e) Use its best efforts to register and qualify the Registrable Shares
covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably appropriate
for the distribution of the securities covered by the registration
statement, provided that IVT shall not be required in connection
therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions.
(f) Allow the Bank Group, in its sole discretion, to select an
underwriter or underwriters in connection with any public offering
resulting from its exercise of its right to request a Demand
Registration, provided that IVT's approval of such underwriter(s) shall
be required, with such approval not to be unreasonably withheld.
(g) Provide a transfer agent for the Registrable Shares no later than
the effective date of the first registration of the Registrable Shares.
(h) Otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC.
(i) Use its best efforts to cause the Registrable Shares either (a) to
be listed on a national securities exchange (if the Registrable Shares
are not already so listed) and on each additional national securities
exchange on which similar securities issued by IVT are then listed, if
the listing of the Registrable Shares is then permitted under the rules
of such exchange, or (b) to secure designation of all the Registrable
Shares as a NASDAQ "national market system security" within the meaning
of Rule 11Aa2-1 of the SEC or, failing that, to secure listing on
NASDAQ for the Registrable Shares and, without limiting the generality
of the foregoing, to use its best efforts to arrange for at least two
(2) market makers to register as such with respect to the Registrable
Shares with the National Association of Securities Dealers, Inc.
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(j) Enter into such customary agreements (including an underwriting
agreement in customary form) and take such other actions as each Member
shall reasonably request in order to expedite or facilitate the
disposition of the Registrable Shares.
(k) On the effective day of such registration statement or, in the case
of an underwritten offering, on the date of delivery of the Registrable
Shares sold pursuant thereto, IVT shall cause to be delivered to each
Member and the underwriters, opinions of counsel for IVT, which
opinions (in form, scope, and substance) shall be reasonably
satisfactory to counsel for the underwriters and counsel for the
Members, covering the matters customarily covered in opinions given to
underwriters and selling interest holders, respectively, in secondary
underwritten public offerings. Immediately prior to the effectiveness
of such registration statement, or, in the case of an underwritten
offering, at the time of delivery of any Registrable Shares sold
pursuant thereto, IVT shall cause to be delivered to each Member and
the underwriters letters from IVT's independent public accountants with
respect to IVT within the meaning of the Securities Act and the
applicable published rules and regulations of the SEC thereunder, and
otherwise in customary form and covering such financial and accounting
matters as are customarily covered by letters of the independent public
accountants delivered in connection with underwritten public offerings.
(l) Make available for inspection by each Member, by any underwriter
participating in any disposition to be effected pursuant to such
registration statement and by any attorney, accountant, or other agent
retained by each Member or any such underwriter, all pertinent
financial and other records and pertinent corporate documents and
properties of IVT, and cause all of IVT's officers, directors and
employees to supply all information reasonably requested by each
Member, or any such underwriter, attorney, accountant or agent in
connection with any such registration statement.
(m) Use every reasonable effort to prevent the issuance of any stop
order suspending the effectiveness of such registration statement or of
any order preventing or suspending the use of any preliminary
prospectus and, if any such order is issued, to obtain the lifting
thereof at the earliest reasonable time.
(n) Make such representations and warranties to the Members and the
underwriters as are customarily made by issuers to underwriters and the
Members, as the case may be, in underwritten public offerings.
5. OBLIGATIONS OF THE MEMBERS. (a) In order to participate in any
registration hereunder of the Registrable Shares, the Members shall:
(i) agree to sell its Registrable Shares on the basis provided
in any underwriting arrangement approved by IVT, provided such basis is
then customary in the securities business for such an offering of the
type covered in the registration statement;
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(ii) enter into a written agreement with the managing
underwriter or representative of the underwriters in such form and
containing such provisions as are then customary in the securities
business for such an offering of the type covered in the registration
statement; and
(iii) complete and execute all questionnaires, powers of
attorney, indemnities and other documents as are reasonably required
under the terms of those arrangements and as are then customary in the
securities business for such an offering of the type covered in the
registration statement.
(b) Each Member agrees that it will not sell, transfer or otherwise
dispose of Registrable Shares in a public transaction (including
through put or short-sale arrangements) in the period (i) beginning 10
days prior to the effectiveness under the Securities Act of any
registration statement covering shares of common stock being publicly
offered by IVT or in an Exempt Offering of the type specified in clause
(iii) of the definition of Exempt Offering and (ii) ending 90 days
following the date of that effectiveness. IVT will provide each Member
written notice of any such lockup period.
6. EXPENSES OF REGISTRATION. Except as provided in the following sentence,
IVT shall bear all expenses arising or incurred in connection with any
of the transactions contemplated by this Agreement, including, without
limitation, (a) all expenses incident to filing with the National
Association of Securities Dealers, Inc. and fees of transfer agents and
registrars, (b) registration fees, (c) listing fees, (d) printing
expenses, (e) accounting and legal fees and expenses of IVT, (f)
expenses of any special audits or comfort letters incident to or
required by any such registration or qualification, and (g) expenses of
complying with the securities or blue sky laws of any jurisdictions in
connection with such registration or qualification. Notwithstanding the
foregoing, each Member shall pay all of its legal expenses, fees and
expenses of any other special experts retained by such Member in
connection with the registration, and its underwriting discount and
selling commissions incurred in connection with each registration
pursuant to this Agreement.
7. OTHER REGISTRATION RIGHTS. If, on or after the date of this Agreement,
IVT grants to any person with respect to any security issued by IVT or
any of its subsidiaries registration rights that provide for terms that
are in any manner more favorable to the holder of such registration
rights than the terms granted to the Bank Group hereunder, or if IVT
amends or waives any provision of any agreement providing registration
rights of others or takes any other action whatsoever to provide for
terms that are more favorable to other holders than the terms provided
to the Bank Group hereunder, then this Agreement shall immediately be
deemed amended to provide the Bank Group with any and all of such more
favorable terms as the Members shall elect to include herein.
8. TRANSFER OF REGISTRATION RIGHTS. The registration rights of the Bank
Group under this Agreement with respect to the Registrable Shares may
be transferred to any transferee who acquires (otherwise than in a
registered public offering) such Registrable Shares in
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compliance with the terms of the Common Stock Purchase Warrant issued
by IVT to each Member and dated of even date herewith; provided, that
any such transfer will be permitted only if the transferee executes an
addendum to this Agreement, in form reasonably satisfactory to IVT, in
which such transferee agrees to comply with and otherwise be bound by
the terms and conditions hereof.
9. INDEMNIFICATION
(a) In the event of a registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, IVT will indemnify
and hold harmless each Member and each underwriter of the Registrable
Shares thereunder and each person who controls such Member or such
underwriter within the meaning of the Securities Act and the Exchange
Act against any losses, claims, damages or liabilities (including
reasonable attorneys' fees), joint or several, to which any Member or
any underwriter or controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement
under which the Registrable Shares was registered under the Securities
Act pursuant to this Agreement, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof,
or arise out of or 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 will reimburse each
Member, each such underwriter and each such controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that IVT will not be liable in any such case
if and 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 so made in conformity with
information furnished in writing by such Member, such underwriter or
such controlling person specifically for use in such registration
statement or prospectus; provided, further, that IVT will not be liable
hereunder to any underwriter or any person who controls an underwriter
within the meaning of the Securities Act and the Exchange Act for any
loss, claim, damage or liability that arises out of, or is based upon,
any untrue statement or alleged untrue statement or any omission or
alleged omission contained in any preliminary prospectus that was
corrected by any subsequent prospectus, and the underwriter was
required to deliver but failed to deliver such prospectus as required
by the Securities Act.
(b) In the event of a registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each Member will
indemnify and hold harmless IVT and each person who controls IVT within
the meaning of the Securities Act and the Exchange Act, each officer of
IVT who signs the registration statement, each director of IVT, each
underwriter and each person who controls any underwriter within the
meaning of the Securities Act and the Exchange Act, against all losses,
claims, damages or liabilities (including reasonable attorneys' fees),
joint or several, to which IVT or such officer or director or
underwriter or controlling person may become subject under the
Securities Act,
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the Exchange Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement under which the
Registrable Shares was registered under the Securities Act pursuant to
this Agreement, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement 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 not misleading, and will reimburse IVT and each such
officer, director, underwriter and controlling person for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that each Member will be liable hereunder in
any such case if and only 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 relating to
such Member made in reliance upon and in conformity with information
pertaining to such Member, as such, furnished in writing to IVT by such
Member specifically for use in such registration statement or
prospectus ("MEMBER INFORMATION"); provided, further, that no Member
will be liable hereunder to any underwriter or any person who controls
an underwriter within the meaning of the Securities Act and the
Exchange Act for any loss, claim, damage or liability that arises out
of, or is based upon, any untrue statement or alleged untrue statement
or any omission or alleged omission in Member Information contained in
any preliminary prospectus that was corrected by any subsequent
prospectus, and the underwriter was required to deliver but failed to
deliver such prospectus as required by the Securities Act; and
provided, further, that the liability of such Member hereunder shall be
limited to the proportion of any such loss, claim, damage, liability or
expense which is equal to the proportion that the public offering price
of shares sold by such Member under such registration statement bears
to the total public offering price of all securities sold thereunder,
but not to exceed the amount of the proceeds received by such Member
from the sale of the Registrable Shares covered by such registration
statement.
(c) Any person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification, and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to
such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party will not be
subject to any liability for any settlement made by the indemnified
party without its consent (but such consent will not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects not
to, assume the defense of a claim will not be obligated to pay the fees
and expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified
parties with respect to such claim.
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(d) If the indemnification provided for under this Agreement is
unavailable to an indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute
to the amount paid or payable by such indemnified party as a result of
such losses, claims, damages, or liabilities (i) in such proportion as
is appropriate to reflect the relative benefit received by IVT from the
offering of such Member's securities; or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
IVT on the one hand and such Member on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by IVT on the one hand and the Members
on the other shall be the net proceeds from the offering (before
deducting expenses) received by IVT on the one hand and such Member on
the other. The relative fault of IVT on the one hand and the Members on
the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of material fact or the
omission or alleged omission to state a material fact relates to
information supplied by IVT or the Members and the parties' relevant
intent, knowledge, access to information and opportunity to prevent or
correct such statement or omission. IVT and each Member agree that it
would not be just and equitable if contribution pursuant to this
SECTION 9(D) were based solely upon the number of entities from whom
contribution was requested or by any other method of allocation which
does not take account of the equitable considerations referred to above
in this SECTION 9(D). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities
referred to above in this SECTION 9(D) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim,
subject to the provisions of SECTION 9(C) hereof. Notwithstanding the
provisions of this SECTION 9(D), no Member shall be required to
contribute any amount or make any other payments under this Agreement
which in the aggregate exceed the proceeds received by such Member. No
person guilty of fraudulent misrepresentation (within the meaning of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The indemnification provided for under this Agreement will remain
in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling
person of such indemnified party and will survive the transfer of
securities. IVT also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in
the event IVT's indemnification is unavailable for any reason.
10. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement shall be governed
by the laws of the State of Texas without regard to conflict of law
principles thereof. The parties hereby irrevocably submit in any suit,
action or proceeding arising out of or relating to this Agreement or
any of the transactions contemplated by this Agreement to the exclusive
jurisdiction and venue of the United States District Court for the
Southern District of Texas,
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Houston Division, and waive any and all objections to the jurisdiction
and venue that they may have under applicable law.
11. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written
and oral, among the parties or any of them with respect to the subject
matter hereof.
12. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all
of which shall constitute one and the same agreement.
13. NOTICE; TIME PERIODS. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given on the
day when delivered personally or sent by telecopier (with receipt
confirmed), and two days after the date of mailing sent by reputable
overnight delivery service (receipt requested), in each case to the
other parties at the following addresses and telecopier numbers (or to
such other address or telecopier number as shall be communicated to the
other parties by like notice):
If to IVT, to:
Innovative Valve Technologies, Inc.
0 Xxxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
Telecopy: 281/925-0360
With a Copy to:
Xxxxx Xxxxx & Xxxxxx Incorporated
Nine Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx, Xx.
Telecopy: 713/871-2024
If to a Member, to:
Chase Bank of Texas, National Association
5 CBB E-78
000 Xxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Manager, Diversified Corporate Group
Telecopy : 713/216-6004
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Bank of America Texas, N.A.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xx. Xxxx Xxxxx
Telecopy: 214/508-2588
Comerica Bank
Xxx Xxxxx Xxxxx
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Mr. Xxxx Xxxxxxxxx
Telecopy: 713/220-5651
Xxxxx Fargo Bank
0000 Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxx Xxxxxxx
Telecopy: 713/739-1076
National City Bank of Kentucky
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxx Xxxxx
Telecopy: 502/581-5203
With a copy to:
Xxxxx Liddell & Xxxx LLP
0000 Xxxxx Xxxxx
000 Xxxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xx. Xxxxx X. Xxxxx
Telecopy: 713/223-3717
[REMAINDER OF PAGE BLANK AS SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
INNOVATIVE VALVE TECHNOLOGIES, INC.
By:________________________________
Xxxxxxx X. Xxxxxxxx, President,
CHASE BANK OF TEXAS, N.A.
By:________________________________
_____________
_____________
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:________________________________
_____________
_____________
BANK OF AMERICA TEXAS, N.A.
By:________________________________
_____________
_____________
13
COMERICA BANK-TEXAS
By:________________________________
_____________
_____________
NATIONAL CITY BANK OF KENTUCKY
By:________________________________
_____________
_____________
14
