EXHIBIT 2
VOTING AND SHARE TRANSFER AGREEMENT
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This is a VOTING AND SHARE TRANSFER AGREEMENT (the "Agreement"), dated
as of October 23, 1998 (the "Agreement"), between Mellon Ventures, L.P., a
Delaware limited partnership ("Mellon Ventures") and Xxxxx Partners Ltd., a
Pennsylvania corporation ("Xxxxx Partners").
Background
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A. Pursuant to a Securities Purchase Agreement (the "Securities Purchase
Agreement"), dated October 16, 1998, among Mellon Ventures, Xxxxx Partners and
Canisco Resources, Inc. (the "Company"), Mellon Ventures and Xxxxx Partners have
agreed to acquire a certain number of shares of the Company's 12% Series A
Cumulative Convertible Preferred Stock, par value $1.00 per share (the "Series A
Preferred Stock") and 12% Series B Cumulative Convertible Preferred Stock, par
value $1.00 per share (the "Series B Preferred Stock, and together with the
Series A Preferred Stock, the "Preferred Stock"). Capitalized terms not
otherwise defined herein shall be defined as in the Securities Purchase
Agreement.
B. Pursuant to the terms of the Preferred Stock (as more fully set forth in
the Certificates of Designation), the holders of the Preferred Stock shall have
the right to convert each share of Preferred Stock then held by such holder into
a certain number of shares of the Company's Common Stock, par value $.0025 per
share (the "Class A Common Stock") or a new class of the Company's non-voting
Common Stock, par value $.0025 per share (the "Class B Common Stock" and,
together with the Class A Common Stock, the "Common Stock").
C. As used herein, Mellon Ventures, Xxxxx Partners and any other party to
whom Shares are transferred in accordance with Section 2.3(g) hereof shall
hereinafter sometimes be referred to individually as an "Investor" and
collectively as the "Investors". As used herein, "Shares" shall include shares
of Preferred Stock and Common Stock and all other equity securities of the
Company (or a successor to the Company) owned by any Investor, including any
securities convertible into or exchangeable for shares of capital stock of the
Company or any options, warrants or rights to acquire such shares or securities
and any equity securities received on account of ownership of the foregoing,
including all securities issued in connection with any merger, consolidation,
stock dividend, stock distribution, stock split, reverse stock split, stock
combination, recapitalization, reclassification, subdivision, conversion or
similar transaction in respect thereof.
D. The Investors wish to set forth certain agreements regarding their future
relationships and their rights and obligations with respect to the Shares.
Terms
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In consideration of the mutual covenants contained herein and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES
OF EACH INVESTOR
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1.1 Representations and Warranties of the Investors . Each Investor
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represents and warrants to the other Investors, as of the date hereof, as
follows:
(a) Such Investor has the requisite power and authority to execute and deliver
this Agreement and to consummate the transactions contemplated hereby
without the consent of any other person (except for such consents as have
heretofore been obtained and the consents referred to in Section 5.1(l) of
the Securities Purchase Agreement). This Agreement has been duly and
validly executed and delivered by such Investor and, assuming this
Agreement constitutes a valid and binding obligation of the other parties
hereto, this Agreement constitutes a valid and binding agreement of such
Investor, enforceable against such Investor in accordance with its terms,
subject to applicable bankruptcy and other laws affecting creditors rights
generally and to general principles of equity.
(b) Neither the execution and delivery of this Agreement by such Investor nor
the consummation of the transactions contemplated hereby will conflict
with, or result in any violation of or default (with or without notice or
lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material
benefit under, or result in the creation of any Lien upon any of the
properties or assets or such Investor under, (a) the organizational
documents of such Investor, (b) any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, instrument, permit,
concession, franchise or license applicable to such Investor or its
properties or assets or (c) subject to the governmental filings and other
matters referred to in the following sentence, any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to such Investor or
its properties or assets, other than, in the case of clauses (b) or (c),
any such conflicts, violations, defaults, rights or Liens that individually
or in the aggregate could not reasonably be expected to have a material
adverse effect on the ability of such Investor to consummate the
transactions contemplated hereby. No consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Entity, is required by such Investor in connection with the
execution and delivery of this Agreement by such Investor or the
consummation by such Investor of the transactions contemplated by this
Agreement, except for such registrations and filings as are referred to in
the Securities Purchase Agreement.
ARTICLE II
COVENANTS OF THE INVESTORS
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2.1 Approved Sales .
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(a) Approved Sale of Shares. If at any time Mellon Ventures approves the sale
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of (i) all the shares of Common Stock and Preferred Stock then held by it
or (ii) all the shares of Preferred Stock then held by it, to any party
other than the Company or an affiliate (as defined in the Securities
Purchase Agreement) of the Company or any affiliate of Mellon Ventures (an
"Approved Stock Sale"), upon the written request of Mellon Ventures (which
such request shall be in its sole discretion), each Holder (as hereafter
defined) will consent to, vote for, and raise no objections against, and
waive dissenters and appraisal rights (if any) with respect to, the
Approved Stock Sale and will agree to sell all of (x) the shares of Common
Stock and Preferred Stock in the case of clause (i), or (y) the shares of
Preferred Stock in the case of clause (ii), then held by such party on the
same terms and conditions as applicable to the sale approved by Mellon
Ventures. Each such party will take all necessary and desirable actions in
connection with the consummation the sale of its Shares pursuant to the
preceding sentence. As used herein, "Holders" means the Investors (other
than Mellon Ventures) and their Permitted Transferees (as defined in
Section 2.3(g)).
(b) Approved Sale of the Company. If at any time Mellon Ventures approves the
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sale of the Company to a person other than an affiliate of the Company or
Mellon Ventures (whether by merger, consolidation, or sale of all or
substantially all of its assets (an "Approved Company Sale" and, together
with an Approved Stock Sale, an "Approved Sale"), each Holder will consent
to, vote for, and raise no objections against, and waive dissenters and
appraisal rights (if any) with respect to, the Approved Company Sale. Each
Holder will take all necessary and desirable actions in connection with the
consummation of an Approved Company Sale.
(c) The obligations of the Holders with respect to Section 2.1(a) and 2.1(b)
are subject to the satisfaction of the conditions that: (i) upon the
consummation of the Approved Sale, all Holders will receive the same form
and amount of consideration per share of Preferred Stock or Common Stock,
whichever applicable, as received by Mellon Ventures; and (ii) the terms of
sale shall not include any indemnification, guaranty or the similar
undertaking of the Holders that is not made or given pro rata with Mellon
Ventures on the basis of share ownership.
2.2 Tag-Along Rights .
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(a) (i) So long as the Preferred Stock is not listed or authorized to be
quoted on the Nasdaq Stock Market or listed on any national securities
exchange, except as otherwise provided in Section 2.2(a)(iv), Mellon
Ventures shall not sell any shares of Preferred Stock in any transaction
or series of related transactions unless all Holders are offered an equal
opportunity to participate in such transaction or transactions on a pro-
rata basis and on identical terms (including price and type of
consideration paid).
(ii) Prior to any sale of Preferred Stock subject to these provisions, Mellon
Ventures shall notify the Holders in writing of the proposed sale. Such
notice (the "Seller's Notice") shall set forth: (A) the number of shares
of Preferred Stock subject to the proposed sale; (B) the name and address
of the proposed purchaser; and (C) the proposed amount of consideration
and terms and conditions of payment offered by such proposed purchaser. A
Holder may exercise the tag-along right by delivery of a written notice
(the "Tag-Along Notice") to Mellon Ventures within 15 days of the date
Mellon Ventures mailed or caused to be mailed the Seller's Notice. The
Tag-Along Notice shall state the number of shares of Preferred Stock that
the Holder proposes to include in the proposed sale. If no Tag-Along
Notice is received during the 15-day period referred to above, Mellon
Ventures shall have the right for a 90-day period to effect the proposed
sale of shares on terms and conditions no more favorable than those stated
in the notice and in accordance with the provisions of this Section 2.2.
(iii) Notwithstanding anything herein to the contrary, Mellon Ventures may make
any of the following sales without offering the Holders the opportunity to
participate: (A) sales to any affiliate of Mellon Ventures who agrees to
be bound by the obligations of Mellon Ventures under this Section 2.2; (B)
sales pursuant to an effective registration statement under the Securities
Act; (C) sales other than those specified in the foregoing (A) and (B)
which in the aggregate do not exceed 20% of the Preferred Stock then
outstanding.
(iv) The tag-along obligations of Mellon Ventures provided under this Section
2.2 shall terminate upon the day after the date on which Mellon Ventures
and its affiliates in the aggregate own less than 50.1% of the outstanding
shares of Preferred Stock and upon the termination of such tag-along
obligations (or if there are no outstanding shares of Preferred Stock),
the rights of the Holders with respect thereto shall also terminate.
(v) Notwithstanding the requirements of this Section 2.2, Mellon Ventures may
sell shares of Preferred Stock at any time without complying with the
requirements of Section 2.2(a)(ii) so long as it deposits into escrow with
an independent third party at the time of sale that amount of the
consideration received in the sale equal to the "Escrow Amount." The
"Escrow Amount" shall equal that amount of consideration as all the
Holders would have been entitled to receive if they had the opportunity to
participate in the sale on a pro rata basis, determined as if each Holder
(A) delivered a Tag-Along Notice to Mellon Ventures in the time period set
forth in Section 2.2(a)(ii) and (B) proposed to include all of its shares
of Preferred Stock in the sale.
No later than the date of the sale, Mellon Ventures shall notify
the Holders in writing of the proposed sale. Such notice (the "Escrow
Notice") shall set forth the information required in the Seller's Notice,
and in
addition, such notice shall state the name of the escrow agent and, if the
consideration (in whole or in part) for the sale was cash, then the
account number of the escrow account.
A Holder may exercise the tag-along right by delivery to Mellon Ventures,
within 15 days of the date Mellon Ventures mailed or caused to be mailed
the Escrow Notice, of (i) a written notice specifying the number of shares
of Preferred Stock it proposes to sell, and (ii) the certificates for such
Preferred Stock, with stock powers duly endorsed in blank.
Promptly after the expiration of the 15th day after Mellon Ventures has
mailed or caused to be mailed the Escrow Notice, (A) Mellon Ventures shall
purchase that number of shares of Preferred Stock as it would have been
required to include in the sale had Mellon Ventures complied with the
provisions of Section 2.2(a)(ii), (B) all shares of Preferred Stock not
required to be purchased by Mellon Ventures shall be returned to the
Holders thereof and (C) all remaining funds and other consideration held
in escrow shall be released to Mellon Ventures. If Mellon Ventures
received consideration other than cash in its sale, it shall purchase the
shares of Preferred Stock tendered by paying to the Holders non-cash
consideration and cash in the same proportion as received by Mellon
Ventures in the sale.
2.3 Directors and Voting Agreements .
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(a) Designation of the Company's Directors When Preferred Stock is Outstanding.
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During such time as such Investor owns any Shares, so long as any Preferred
Stock is outstanding, each Investor agrees as follows:
(i) During such time as the holders of Preferred Stock have the right to elect
four (4) directors to the Company's Board of Directors (the "Four Preferred
Directors"), each party hereto will take such action as is necessary
(including voting any voting Shares then owned by it, calling special
meetings of stockholders and executing and delivering written consents) to
ensure that one of the directors shall be designated by Xxxxx Partners (so
long as Xxxxx Partners or its affiliates own any Shares) and the balance of
the Four Preferred Directors shall be designated by Mellon Ventures.
(ii) During such time as the holders of Preferred Stock have the right to elect
three (3) directors to the Company's Board of Directors (the "Three
Preferred Directors"), each party hereto will take such action as is
necessary (including voting any voting Shares then owned by it, calling
special meetings of stockholders and executing and delivering written
consents) to ensure that one of the directors shall be designated by Xxxxx
Partners (so long as Xxxxx Partners or
its affiliates own any Shares) and the balance of the Three Preferred
Directors shall be designated by Mellon Ventures.
(b) Designation of the Company's Directors When Preferred Stock is No Longer
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Outstanding. During such time as such Investor owns any Shares, so long as
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no Preferred Stock is outstanding, each party hereto agrees as follows:
(i) During such time as Mellon Ventures and Xxxxx Partners have the right to
designate four (4) directors to the Board of Directors of the Company
pursuant to the Securities Purchase Agreement (the "Four Common
Directors"), each party hereto agrees that it shall take, and use
reasonable efforts to cause the Company to take, at any time and from time
to time, all action necessary (including voting any voting Shares then
owned by it, calling special meetings of stockholders and executing and
delivering written consents) to ensure that one of the directors shall be
designated by Xxxxx Partners (so long as Xxxxx Partners or its affiliates
own any Shares) and the balance of the Four Common Directors shall be
designated by Mellon Ventures (provided, that if requested by the
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Company, one of the directors to be designated by Mellon Ventures shall be
subject to the approval of the President of the Company and Xxxxx
Partners, which such approval of Xxxxx Partners shall not be unreasonably
withheld).
(ii) During such time as Mellon Ventures and Xxxxx Partners have the right to
designate three (3) directors to the Board of Directors of the Company
pursuant to the Securities Purchase Agreement (the "Three Common
Directors"), each party hereto agrees that it shall take, and use
reasonable efforts to cause the Company to take, at any time and from time
to time, all action necessary (including voting any voting Shares then
owned by it, calling special meetings of stockholders and executing and
delivering written consents) to ensure that one of the directors shall be
designated by Xxxxx Partners (so long as Xxxxx Partners or its affiliates
own any Shares) and the balance of the Three Common Directors shall be
designated by Mellon Ventures.
(iii) During such time as Mellon Ventures and Xxxxx Partners have the right to
designate two (2) directors to the Board of Directors of the Company
pursuant to the Securities Purchase Agreement (the "Two Common
Directors"), each party hereto agrees that it shall take, and use
reasonable efforts to cause the Company to take, at any time and from time
to time, all action necessary (including voting the Shares owned by him,
her or it, calling special meetings of stockholders and executing and
delivering written consents) to ensure that one of the directors shall be
designated by Xxxxx Partners (so long as Xxxxx Partners or its affiliates
own any Shares) and the balance of the Two Common Directors shall be
designated by Mellon Ventures.
Notwithstanding anything to the contrary contained herein, each of the Investors
agree that in the event that Mellon Ventures or Xxxxx Partners concludes that it
is unable to designate, or elects not to designate for any reason, one or more
of such directors, such directorship(s) shall not be filled by the other party
but shall remain vacant until the election of a director designated by Mellon
Ventures or Xxxxx Partners, whichever applicable, to fill such vacancy in
accordance with Section 2.3(a) or (b).
(c) Right to Remove Certain of the Company's Directors. An Investor may
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request that any director designated by it be removed (with or without cause) by
written notice to the other Investors, and, in any such event, each Investor
shall promptly consent in writing or vote or cause to be voted all of the voting
Shares now or hereafter owned or controlled by it for the removal of such person
as a director. In the event any person ceases to be a director, such person
shall also cease to be a member of any committee of the Board of Directors of
the Company.
(d) Right to Fill Certain Vacancies in Company's Board. In the event that a
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vacancy is created on the Company's Board of Directors at any time by the death,
disability, retirement, resignation or removal (with or without cause) of a
director designated by an Investor, or if otherwise there shall exist or occur
any vacancy on the Company's Board of Directors in a directorship subject to
designation by an Investor, such vacancy shall not be filled by the remaining
members of the Company's Board of Directors but each Investor hereby agrees
promptly to consent in writing or vote or cause to be voted all of the voting
Shares now or hereafter owned or controlled by it to elect that individual
designated to fill such vacancy and serve as a director, as shall be designated
by such Investor.
(e) No Obligation to Convert. Notwithstanding anything to the contrary
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contained herein, each of the Investors agree that no Investor shall be required
by reason of Section 2.3(a),(b), (c) or (d) to convert any of its non-voting
Shares to voting Shares to comply with the provisions set forth therein or
otherwise to take any action which is prohibited or unlawful under any law or
regulation applicable to such Investor.
(f) Other Investor Actions. Mellon Ventures and Xxxxx Partners hereby
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acknowledge and agree that, except as specifically set forth herein, as to all
matters in which the "Investors" (as such term is defined in the Securities
Purchase Agreement) shall have the right to take any action as a group or class
under the Securities Purchase Agreement, including, without limitation, the
granting or withholding of approval rights pursuant to Section 4.13 of the
Securities Purchase Agreement, such action shall be taken as is requested by
Mellon Ventures (unless Xxxxx Partners and its affiliates, at the time any such
action is called for, then owns a greater number of shares of common stock of
any class of the Company than Mellon Ventures and its affiliates (assuming
conversion of all shares of Preferred Stock owned by each party at the then
applicable conversion price), in which case such action shall be taken as is
requested by Xxxxx Partners).
(g) Permitted Transfers. No Investor shall Transfer (as hereafter defined) any
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shares of Preferred Stock or Common Stock unless the transferee (each, a
"Permitted Transferee") executes a joinder to this Agreement expressly agreeing
to be subject to and fully bound by the terms and conditions of this Agreement
applicable to it with the same effect as if it were an "Investor" as such term
is defined in this Agreement. Prior to any proposed Transfer of any Securities,
the holder thereof shall give written notice to each party hereto describing the
manner and circumstances of the proposed Transfer. Any purported Transfer in
violation of this Section 2.3(g) shall be null and void and of no force and
effect and the purported transferee shall have no rights or privileges in or
with respect to the Shares. As used herein, "Transfer" includes the making of
any sale, exchange, assignment, hypothecation, gift, security interest, pledge
or other encumbrance, or any contract therefor, any voting trust or other
agreement or arrangement with respect to the transfer of voting rights or any
other beneficial interest in any of the Shares, the creation of any other claim
thereto or any other transfer or disposition whatsoever, whether voluntary or
involuntary, affecting the right, title, interest or possession in or to such
Shares.
(h) Termination of Voting Agreements. The voting agreements in Sections
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2.3(a)-(f) shall terminate on the date when Mellon Ventures owns less than 15%
of the outstanding Preferred Stock and less than 15% of the outstanding Common
Stock or at such earlier time as the rights of Mellon Ventures and Xxxxx
Partners to designate or elect directors under the Securities Purchase Agreement
and the Certificates of Designation expire.
2.4 Second Closing. In the event that the Second Closing occurs, Xxxxx
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Partners agrees that it shall purchase a minimum of one (1) share of Series A
Preferred Stock upon the consummation of the Second Closing.
2.5 Management Fees. Mellon Ventures and Xxxxx Partners hereby agree that any
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management fee payable to such parties pursuant to the management agreement
contemplated by Sections 5.1(j) and 5.3(l) of the Securities Purchase Agreement
shall be divided equally between Mellon Ventures and Xxxxx Partners.
2.6 Sale Option of Xxxxx Partners. (a) At any time on or after the
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second anniversary of the Initial Closing Date, Xxxxx Partners may, by written
notice to Mellon Ventures (a "Sale Notice"), elect to sell to Mellon Ventures
(and Mellon Ventures hereby agrees to purchase from Xxxxx Partners) at the
Option Price described below, all of the outstanding shares of Preferred Stock
owned by Xxxxx Partners and its affiliates at the time such Sale Notice is given
(the "Sale Option").
(b) The closing for the Sale Option shall take place at the offices of Mellon
Ventures at 10:00 a.m. local time on the date that is 150 days after the date a
Sale Notice is received by Mellon Ventures (or, if such day is not a business
day, the next succeeding business day), or on such earlier date that is 10 days
after the date the Fair Market Value Price is determined. At such closing, Xxxxx
Partners will deliver to Mellon Ventures certificates evidencing all the shares
of Preferred Stock to be sold by Xxxxx Partners and its affiliates, accompanied
by stock powers executed in blank, with signatures guaranteed or other
appropriate documentation of authority to transfer), and Mellon will deliver the
Option Price by wire transfer of immediately available funds to an account
designated in writing by Xxxxx Partners not less than three business days prior
to such closing. If requested by Mellon Ventures, Xxxxx Partners will convert
all (or such lesser number specified by Mellon Ventures) shares of Series A
Preferred Stock that are subject to the Sale Option to Series B Preferred Stock
prior to such closing.
(c) The "Option Price" for each share of Preferred Stock to be sold by Xxxxx
Partners and purchased by Mellon Ventures pursuant to the Sale Option shall be
the lesser of (i) the original purchase price per share of Preferred Stock paid
by Xxxxx Partners at the Initial Closing or the Second Closing, as applicable,
plus accrued but unpaid dividends and (ii) the Fair Market Value Price,
determined as follows. For a period of 20 days (the "Negotiation Period") after
the date any Sale Notice is received, Mellon Ventures and Xxxxx Partners will
negotiate in good faith to reach agreement upon the per share fair market value
of the Preferred Stock subject to the Sale Option. Such agreed upon value shall
be the "Fair Market Value Price." If the parties are unable to agree upon such
value, the Fair Market Value Price shall be determined by an appraiser of
nationally or regionally recognized standing selected by Xxxxx Partners (the
"Xxxxx Partners Appraiser"), and approved in its discretion by Mellon Ventures.
The "Fair Market Value Price" shall be determined by such Xxxxx Partners
Appraiser within 30 days thereafter, and such determination shall be binding on
Xxxxx Partners and Mellon Ventures. In all cases, the Fair Market Value Price
shall be calculated by determining the fair market value of the shares subject
to the Sale Option, taking into account their minority status and the level of
liquidity of such shares. The expenses of the Xxxxx Partners Appraiser shall be
borne equally by Mellon Ventures and Xxxxx Partners.
ARTICLE IX
MISCELLANEOUS
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3.1 Amendment and Modification. This Agreement may be amended or modified,
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or any provision hereof may be waived, provided that such amendment or waiver is
set forth in a writing executed by each party hereto. No course of dealing
between or among any persons having any interest in this Agreement will be
deemed effective to modify, amend or discharge any part of this Agreement or any
rights or obligations of any person under or by reason of this Agreement.
3.2 Survival of Representations and Warranties. All representations,
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warranties, covenants and agreements set forth in this Agreement will survive
the execution and delivery of this Agreement and the Closing Date and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by an Investor or on its behalf.
3.3 Successors and Assigns; Entire Agreement . This Agreement and all of the
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provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns and executors,
administrators and heirs. This Agreement sets forth the entire agreement and
understanding among the parties as to the subject matter hereof and merges and
supersedes all prior discussions and understandings of any and every nature
among them.
3.4 Separability . In the event that any provision of this Agreement or the
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application of any provision hereof is declared to be illegal, invalid or
otherwise unenforceable by a court of competent jurisdiction, the remainder of
this Agreement shall not be affected except to the extent necessary to delete
such illegal, invalid or unenforceable provision unless that provision held
invalid shall substantially impair the benefits of the remaining portions of
this Agreement.
3.5 Notices . All notices provided for or permitted hereunder shall be made
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in writing by hand-delivery, registered or certified first-class mail, telex,
telecopier or air courier guaranteeing overnight delivery to the other party at
the following addresses (or at such other address as shall be given in writing
by any party to the others):
If to Mellon Ventures to:
Mellon Ventures, L.P.
5 Radnor Corporate Center
000 Xxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxx, XX 00000-0000
Attention: Xx. Xxxx X. Xxxxxxxxx
Fax: 000-000-0000
with a required copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
if to Xxxxx Partners:
Xxxxx Partners Limited
Suite 205
200 Four Falls Xxxxxxxxx Xxxxxx
Xxxx Xxxxxxxxxxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxxx
Fax: 000-000-0000
with a required copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
0000 Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
All such notices shall be deemed to have been duly given: when
delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the next business day,
if timely delivered to an air courier guaranteeing overnight delivery.
3.6 Governing Law. The validity, performance, construction and effect of
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this Agreement shall be governed by and construed in accordance with the
internal law of the State of Delaware, without giving effect to principles of
conflicts of law.
3.7 Headings. The headings in this Agreement are for convenience of
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reference only and shall not constitute a part of this Agreement, nor shall they
affect their meaning, construction or effect.
3.8 Counterparts. This Agreement may be executed in two or more counterparts
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and by the parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original, and all of which taken together
shall constitute one and the same instrument.
3.9 Further Assurances. Each party shall cooperate and take such action as
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may be reasonably requested by another party in order to carry out the
provisions and purposes of this Agreement and the transactions contemplated
hereby.
3.10 Termination. Unless sooner terminated in accordance with its terms,
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this Agreement shall terminate on the tenth anniversary of the Closing Date.
3.11 Remedies. In the event of a breach or a threatened breach by any party
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to this Agreement of its obligations under this Agreement, any party injured or
to be injured by such breach, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The parties agree that
the provisions of this Agreement shall be specifically enforceable, it being
agreed by the parties that the remedy at law, including monetary damages, for
breach of such provision will be inadequate compensation for any loss and that
any defense in any action for specific performance that a remedy at law would be
adequate is waived.
3.12 Pronouns. Whenever the context may require, any pronouns used herein
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shall be deemed also to include the corresponding neuter, masculine or feminine
forms.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
MELLON VENTURES, L.P.
By MVMA, L.P., its general partner
By MVMA, Inc., its general partner
By /s/ Xxxx X. Xxxxxxxxx
_______________________
XXXXX PARTNERS LTD.
By /s/ R. Xxxxx Xxxxxxxx
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