EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made as of March
25, 1998, by and between Xxxx Corp., a Delaware corporation (the "Company") and
Xxxxxx Fund I, L.P., a Texas limited partnership ("Xxxxxx").
WHEREAS, Xxxxxx, GECFS, Inc., a Nevada corporation ("GECFS")
and the Company may enter into one or more Securities Purchase Agreements
pursuant to which Xxxxxx shall purchase shares of Class B Common Stock, par
value $.01 per share, of the Company from GECFS, which Xxxxxx shall convert into
an equal number of shares of Class A Common Stock, par value $.01 per share, of
the Company (the "Class A Common Stock");
WHEREAS, a condition to the closing of the Securities Purchase
Agreements is that the parties hereto enter into this Agreement providing for
certain registration rights with respect to the Common Stock Xxxxxx purchases
from GECFS;
NOW, THEREFORE, in consideration of the foregoing premises and
of the mutual covenants and obligations hereinafter set forth, and for other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1. DEFINITIONS.
As used herein, the following terms shall have the following
meanings :
"CLASS A COMMON STOCK" means the Class A Common Stock, par
value $.01 per share, of the Company.
"CLASS B COMMON STOCK" means the Class B Common Stock, par
value $.01 per share, of the Company.
"COMMON STOCK" means all classes of the common stock of the
Company.
"INITIAL PUBLIC OFFERING" means the first underwritten public
offering of Common Stock that is effected pursuant to a registration statement
filed with, and declared effective by, the SEC under the Securities Act.
"PERSON" means any individual, sole proprietorship,
partnership (including a limited partnership), joint venture, trust,
unincorporated organization, association, corporation, institution, public
benefit corporation, limited liability company, joint stock company, entity or
government (whether federal, state, county, city, municipal or otherwise,
including, without limitation, any instrumentality, division, agency, body or
department thereof) or any other business entity.
"PROPOSED AMOUNT" means, with respect to the Registrable
Securities, the aggregate amount of shares thereof that Xxxxxx shall request the
Company to register pursuant to Section 2(b).
"REGISTRABLE SECURITIES" means The shares of Class A Common
Stock owned of record or beneficially by Xxxxxx (the "Shares"), including any
additional securities of the Company issued in respect of the Shares, including
by way of a stock split, dividend or other recapitalization or exchange or
securities with or by the Company. Once issued, such securities shall cease to
be Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (ii) they shall have been Sold pursuant to Rule 144 (or any successor
provision) under the Securities Act, (iii) they shall have been otherwise
transferred and new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company, or (iv) they shall
cease to be outstanding.
"SELLING EXPENSES" means all underwriting discounts, selling
commissions, stock transfer taxes, and fees and disbursements of counsel for,
and any other Person retained, by Xxxxxx, applicable to the securities
registered by Xxxxxx.
Section 2. REGISTRATION RIGHTS.
(a) INCIDENTAL (PIGGYBACK) REGISTRATION. If the Company
proposes to register any of its securities under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), for public offering and sale (other than
registrations with regard to acquisitions of employee stock options, employee
purchase plans or other employee benefit plans on Form S-8 under the Securities
Act or any successor form), the Company shall give notice to Xxxxxx of its
intention to effect such a registration prior to the filing with the Securities
and Exchange Commission (the "SEC") of such registration statement. Upon Xxxxxx'
written request, given within 7 days after receipt from the Company of such
notice, the Company shall use its best efforts to cause the number of Xxxxxx'
Registrable Securities then held by Xxxxxx and referred to in such request to be
included in such registration statement; PROVIDED, HOWEVER, that in the event
that the offering pursuant to such registration statement shall be underwritten
and the underwriters advise the Company in writing that in their opinion the
number of securities requested to be included in such registration pursuant to
this Section 2(a) exceeds the number of securities that can be sold in the
offering without adversely affecting the offering price or the marketing of the
Company's securities, the Company may first include in such registration all
securities the Company proposes to sell, and Xxxxxx shall accept a reduction
(pro rata with any other holders of the Company's equity securities entitled to
register such securities on such registration statement whose registration
rights are on a par with and not subordinate to Xxxxxx') on the basis of the
proportion that the market value (based upon the proposed offering price of such
securities or the mid-point of the range of the proposed offering prices of any
of such securities (the "MARKET VALUE") of each security holder's aggregate
securities requested to be registered bears to the Market Value of the aggregate
amount of all equity securities (other than those to be sold for the Company's
account) as to which registration is sought) in the number of securities to be
included
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in such registration, which reduction may, if necessary, be total. Nothing in
this Section 2(a) shall limit the Company's ability to withdraw, or temporarily
cease to seek effectiveness of, a registration statement it has filed whether
before or after its effectiveness.
(b) DEMAND REGISTRATION. (i) After the earlier of (x) December
29, 1998 or (y) the completion by the Company of an Initial Public Offering,
except as provided in Section 2(b)(ii) below, upon Xxxxxx' written request that
the Company effect pursuant to this Agreement the registration of Registrable
Securities under the Securities Act (which request shall specify the Registrable
Securities so requested to be registered, the Proposed Amounts thereof and the
intended method of disposition by Xxxxxx), the Company will, as expeditiously as
reasonably possible, use its best efforts to effect the registration under the
Securities Act of the Proposed Amount of Registrable Securities, for disposition
in accordance with the intended method of disposition stated in such request;
PROVIDED, HOWEVER, that (A) if in the good faith judgment of the Board of
Directors of the Company, such registration would be detrimental to the Company
and the Board of Directors of the Company concludes, as a result, that it is in
the best interests of the Company to defer the filing of such registration
statement at such time, and (B) the Company shall furnish to Xxxxxx a
certificate signed by an executive officer of the Company that the Board of
Directors of the Company has made such a determination and that it is,
therefore, necessary to defer the filing of such registration statement, then
the Company shall have the right to defer such filing for the period during
which such registration would be detrimental, provided that the Company may not
defer the filing for a period of more than 180 days after receipt of Xxxxxx'
request in the case of an underwritten public offering or for more than 120 days
if such method of disposition is not an underwritten public offering. The
Company shall be entitled to include in any registration statement filed
pursuant to this Section 2(b): (x) securities of the Company held by any other
securities holder of the Company, and (y) in an underwritten public offering,
securities of the Company to be sold by the Company for its own account, except
as and to the extent that (1) in the written opinion of the managing
underwriter, which shall be an underwriter of nationally recognized standing (if
such method of disposition shall be an underwritten public offering), such
inclusion would materially adversely affect the marketing of the Registrable
Securities to be sold by Xxxxxx or (2) in the written opinion of an investment
banker of nationally recognized standing jointly selected by Xxxxxx and the
Company (if such method of disposition is not an underwritten public offering),
such inclusion would materially adversely affect the price at which the
Registrable Securities may be sold pursuant to the plan of distribution.
(ii) The Company shall not be obligated to take any
action to effect any registration requested by Xxxxxx pursuant to Section
2(b)(i) hereof (A) after the Company has effected two such registrations
pursuant to this Agreement and each such registration has been declared or
ordered effective, (B) during the period starting with the date 30 days prior to
the Company's estimate of the date of filing of, and ending on a date 180 days
after the effective date of, a Company initiated registration, provided that the
Company is using all reasonable efforts to cause such registration statement to
become effective, or (C) for a period of six (6) months after the Company has
effected one such registration pursuant to this Agreement and such registration
has been declared or ordered effective, such 180 day period to commence on the
date the registration statement was declared or ordered effective.
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(iii) Notwithstanding any other provision of this
Agreement to the contrary, a registration requested pursuant to this Section
2(b) shall not be deemed to have been effected (A) unless it has become
effective, provided that a registration that does not become effective after the
Company has filed a registration statement with respect thereto solely by reason
of Xxxxxx' refusal to proceed shall be deemed to have been effected by the
Company at Xxxxxx' request unless Xxxxxx shall have elected to pay all Company
Registration Expenses (as defined) in connection with such registration, (B) if
after it has become effective such registration is interfered with by any stop
order, injunction or other order or requirement of the SEC or other governmental
agency or court for any reason other than a misrepresentation or an omission by
Xxxxxx, or (C) if the conditions to closing specified in the purchase agreement
or underwriting agreement entered into in connection with such registration are
not satisfied other than by reason of some wrongful act or omission, or act or
omission in bad faith, by Xxxxxx.
(c) REGISTRATION PROCEDURES. Subject to the limitations set
forth elsewhere herein, if and whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect or cause the
registration of any Registrable Securities under the Securities Act as provided
in this Agreement, the Company will, as expeditiously as possible:
(i) in the case of a registration under Section 2(b)
hereof, prepare and file with the SEC (such filing to be made within 75 days
after the initial request by Xxxxxx) a registration statement with respect to
such Registrable Securities on a form appropriate to permit Xxxxxx to sell the
Proposed Amount in accordance with Xxxxxx' intended method of distribution and
use its best efforts to cause such registration statement to become and remain
effective;
(ii) prepare and file with the SEC such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for such period as shall be requested by Xxxxxx, which period shall
not exceed six (6) months, and to comply with the provisions of the Securities
Act with respect to the sale or other disposition of all securities covered by
such registration statement during such period;
(iii) furnish to counsel for Xxxxxx and such
underwriter of the securities being sold by Xxxxxx, at least 5 days prior to the
filing thereof, such number of copies of such registration statement and of each
such amendment and supplement thereto (in each case including all exhibits),
such number of copies of the prospectus included in such registration statement
(including each preliminary prospectus), in conformity with the requirements of
the Securities Act, and such other documents, as such counsel may reasonably
request, in substantially the form in which they are proposed to be filed with
the SEC, in order to facilitate the public sale or other disposition of the
Registrable Securities owned by Xxxxxx;
(iv) use its best efforts to register or qualify such
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions in the United States as each
underwriter of the securities being sold by Xxxxxx shall reasonably request, and
do any and all other acts and things which may be necessary or advisable to
enable Xxxxxx and such underwriter to consummate the disposition in such
jurisdictions in the
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United States of such Registrable Securities owned by Xxxxxx except that the
Company shall not for any purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where, but for the
requirements of this clause (iv), it would not be obligated to be so qualified,
or subject itself to taxation in any such jurisdiction;
(v) use its best efforts to cause such Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities in the United States
as may be necessary to enable Xxxxxx to consummate the disposition of such
Registrable Securities;
(vi) notify Xxxxxx, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
Company's becoming aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and promptly prepare and furnish to Xxxxxx and each underwriter a
reasonable amount of copies of a prospectus supplement or amendment so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(vii) otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make available to Xxxxxx,
as soon as reasonably practicable, an earnings statement covering the period of
at least twelve months, but not more than eighteen months, beginning with the
first day of the Company's first calendar quarter after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act;
(viii) enter into such agreements (including an
underwriting agreement in customary form) and take such other actions as Xxxxxx
shall reasonably request in order to expedite or facilitate the disposition of
such Registrable Securities;
(ix) use its best efforts to furnish to Xxxxxx an
opinion from the Company's counsel and a "cold comfort" letter from the
Company's independent public accountant (in accordance with SAS 72), addressed
to Xxxxxx, in customary form and covering such matters of the type customarily
covered by such opinions and "cold comfort" letters as Xxxxxx shall reasonably
request;
(x) make available for inspection by Xxxxxx, by any
other underwriter participating in any disposition to be effected pursuant to
such registration statement, and by any attorney, accountant or other agent
retained by Xxxxxx or any such underwriter, all reasonably pertinent financial
and other records, reasonably pertinent corporate documents and properties of
the Company, and cause all of the Company's officers, directors, employees and
the independent public accountants who have audited its financial statements to
supply all information reasonably requested by Xxxxxx or any such underwriter,
attorney, accountant or agent in connection with
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such registration statement; PROVIDED, HOWEVER, that Xxxxxx and each such
representative of Xxxxxx, underwriter, attorney, accountant or agent must
execute and deliver to the Company a confidentiality agreement in form and
substance reasonably acceptable to the Company agreeing to keep any such
information and records concerning the Company confidential;
(xi) permit Xxxxxx to participate in the preparation
of such registration or comparable statement;
(xii) at or prior to the effective date of the
registration use commercially reasonably efforts to (i) secure a CUSIP number
for all Registrable Securities, and (ii) cause the Registrable Securities to be
listed on the New York Stock Exchange, the American Stock Exchange or included
for reporting on the NASDAQ Stock Market, and cause the Registrable Securities
to be listed on each other national securities exchange, if any, on which any
other class of the Company's securities are then listed; and
(xiii) in the case of an underwritten offering,
enable the Registrable Securities to be in such denominations or such number of
shares and registered in such names as the underwriters may request at least two
business days prior to the sale of the Registrable Securities.
In the case of an underwritten offering, the underwriters shall be
selected by the Company and reasonably acceptable to Xxxxxx.
Xxxxxx shall, upon receipt of any notice from the Company of the
happening of any event of the kind described in subdivision (vi) above,
forthwith discontinue their disposition of Registrable Securities pursuant to
the Registration Statement covering such Registrable Securities until Xxxxxx
receives copies of the supplemented or amended prospectus contemplated by said
subdivision and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in
Xxxxxx' possession of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the period mentioned in subdivision (ii) above shall be
extended by the number of days during the period from and including the date of
the giving of such notice to and including the date when Xxxxxx shall have
received the copies of the supplemented or amended prospectus contemplated by
subdivision (vi) above, PROVIDED, HOWEVER, that in no event will the period
mentioned in subdivision (ii) above exceed six months after giving effect to
such extension.
Xxxxxx shall enter into such customary agreements as requested by the
Company in connection with the registration of securities as contemplated by
this Agreement.
Xxxxxx shall furnish to the Company in writing such information and
documents regarding Xxxxxx and the distribution of such securities as may be
required to be disclosed in the registration statement by the rules and
regulations under the Securities Act or under any other applicable securities or
blue sky laws of the jurisdictions referred to in Section 2(c)(iv) hereof.
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If any such registration or comparable statement refers to Xxxxxx by
name or otherwise as the holders of any securities of the Company then Xxxxxx
shall have the right to require (A) the insertion therein of language, in form
and substance satisfactory to Xxxxxx and presented to the Company in writing, to
the effect that the holding by Xxxxxx of such securities is not to be construed
as a recommendation by Xxxxxx of the investment quality of the Company's
securities covered thereby and that such holding does not imply that Xxxxxx will
assist in meeting any future financial requirements of the Company, or (B) in
the event that such reference to Xxxxxx by name or otherwise is not required by
the Securities Act or any similar federal statute then in force, the deletion of
the reference to Xxxxxx.
(d) REGISTRATION EXPENSES. In connection with any registration
on Registrable Securities pursuant to this Agreement the Company will, whether
or not any registration pursuant to this Agreement shall become effective, from
time to time promptly upon receipt of bills or invoices relating thereto, pay
all expenses (other than Selling Expenses) incident to its performance of or
compliance with this Section 2, including, without limitation, all registration,
filing and NASD fees, fees and expenses of compliance with securities or blue
sky laws, word processing, duplicating and printing expenses, messenger and
delivery expenses, and fees and disbursements of counsel for the Company and all
independent public accountants (including the expenses of any audit and/or "cold
comfort" letter) and the other Persons retained by the Company ("Registration
Expenses"); PROVIDED, HOWEVER, that in all events, Xxxxxx shall be responsible
for the fees and expenses of its counsel and accountants and for its Selling
Expenses.
(e) INDEMNIFICATION. (i) The Company will, and hereby does,
indemnify, to the extent permitted by law, Xxxxxx, its officers and directors,
if any, and each Person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act against all losses, damages, liabilities (or
proceedings in respect thereof) and expenses under the Securities Act, caused by
any untrue statement or alleged untrue statement of a material fact contained in
any registration statement or prospectus (and as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities (or proceedings in respect thereof) or expenses are caused
by any untrue statement or alleged untrue statement made in reliance on or in
conformity with any information furnished in writing to the Company by Xxxxxx or
any participating underwriter expressly for use therein. If the offering
pursuant to any registration statement provided for under this Agreement is made
through underwriters, the Company agrees to enter into an underwriting agreement
in customary form with such underwriters and to indemnify such underwriters,
their officers and directors, if any, and each Person, if any, who controls such
underwriters within the meaning of Section 15 of the Securities Act to the same
extent as herein before provided with respect to the indemnification of Xxxxxx.
(ii) If for any reason the indemnity under Section
2(e)(i) is unavailable, then the Company shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages,
liabilities or expenses (A) in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of the indemnified
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party on the other or (B) if the allocation provided by subdivision (A) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative fault of the Company on the one hand and the indemnified
party on the other but also the relative benefits received by the Company and
the indemnified party as well as any other relevant equitable considerations. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(iii) Xxxxxx will, and hereby does, jointly and
severally indemnify, to the extent permitted by law, the Company, its officers
and directors, if any, and each Person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, against all losses, claims,
damages, liabilities (or proceedings in respect thereof) and expenses under the
Securities Act, caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus (and as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading but only to the
extent that such losses, claims, damages, liabilities (or proceedings in respect
thereof) or expenses are caused by any untrue statement or alleged untrue
statement made in reliance on or in conformity with any information furnished to
the Company by Xxxxxx. If the offering pursuant to any registration statement
provided for under this Agreement is made through underwriters, Xxxxxx agrees to
enter into an underwriting agreement in customary form with such underwriters
and to indemnify such underwriters, their officers and directors, if any, and
each Person who controls such underwriters within the meaning of Section 15 of
the Securities Act to the same extent as hereinbefore provided with respect to
the indemnification of the Company, its officers and directors, if any, and each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act.
(iv) If for any reason the indemnity under Section
2(e)(iii) is unavailable, then Xxxxxx shall contribute to the amount paid or
payable by the indemnified party as a result of such losses, claims, damages,
liabilities or expenses (A) in such proportion as is appropriate to reflect the
relative fault of the parties or (B) if the allocation provided by subdivision
(A) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative fault of parties but also the
relative benefits received by the parties as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(v) The Company and Xxxxxx shall make payments of all
amounts required to be made pursuant to the foregoing provisions of this Section
2(e) to or for the account of the indemnified party from time to time promptly
upon receipt of bills or invoices relating thereto or when otherwise due and
payable.
(f) LIMITATIONS ON SALE OR DISTRIBUTION OF SECURITIES. If a
registration under this Agreement shall be in connection with an underwritten
public offering of securities for the
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Company's or any other security holder's account (other than Xxxxxx), Xxxxxx
shall not effect any public sale or distribution, including any sale pursuant to
Rule 144 under the Securities Act, of any Registrable Securities, during such
period prior and subsequent to the commencement of the offering of securities
pursuant to such registration statement as may be reasonably requested by the
underwriters thereof, and in all cases to otherwise comply with all applicable
rules under the Securities Act and the Exchange Act, including, without
limitation, Regulation M under the Exchange Act or any similar rules thereafter
adopted by the SEC.
(g) REGISTRATION RIGHTS TO OTHERS. The rights of Xxxxxx shall
be on a par, pro rata to share holdings, with those granted to (i) GE Capital
and GECFS under the Registration Rights Agreement, dated as of even date
herewith, between the Company, GE Capital and GECFS, (ii) Xxxxx X. Xxxxxxxxxx
under the Stock Option Agreement, dated as of December 1, 1995, between the
Company and Xx. Xxxxxxxxxx, (iii) Xxxxxx Capital Advisors, Inc. under the
Registration Rights Agreement, dated as of even date herewith, between the
Company and Xxxxxx Capital Advisors, Inc. and (iv) Xxxxx Mas, Xxxx Xxxxx Mas and
Xxxx Xxxxxx Mas under the Amended and Restated Stockholders' Agreement, dated as
of even date herewith among the Company, Xxxxx Mas, Xxxx Xxxxx Mas, Xxxx Xxxxxx
Mas, GECFS, Xxxxxx, Xxxxxx Capital Advisors, Inc., Xxxxx X. Xxxxxxxxxx and
general Electric Capital Corporation. If the Company shall at any time hereafter
provide to any holder of any securities of the Company rights with respect to
the registration of such securities under the Securities Act, such rights shall
be subordinate to and shall not be in conflict with or adversely affect any of
the rights provided in this Agreement to Xxxxxx.
Section 3. AMENDMENT AND WAIVER.
Except as otherwise provided herein, no modification, amendment or
waiver of any provision of this Agreement shall be effective against any party
hereto unless such modification, amendment or waiver is approved in writing by
all of the parties hereto. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
Section 4. NOTICES.
Any notice provided for in this Agreement shall be in writing
and shall be either personally delivered, or mailed first class mail (postage
prepaid) or sent by reputable overnight courier service (charges prepaid) to the
Company at the address set forth below and to Xxxxxx at the address set forth
below, or at such address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
Notices will be deemed to have been given hereunder when delivered personally,
four business days after deposit in the U.S. mail and one business day after
deposit with a reputable overnight courier service. The Company's address is:
Xxxx Corp.
0000 X.X. 00xx Xxxxxx
0
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
With a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Xxxxxx' address is:
0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Telecopy: (000) 000-0000
With a copy to:
Xxxxx & XxXxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
Section 5. SEVERABILITY.
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
Section 6. SPECIFIC PERFORMANCE.
The parties hereto recognize and agree that money damages may not be
sufficient to compensate Xxxxxx for breaches by the Company of the terms hereof,
and, consequently, that the equitable remedy of specific performance of the
terms hereof will be available in the event of any such breach.
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Section 7. MISCELLANEOUS.
This Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto,
whether so expressed or not. Xxxxxx may freely assign all or a portion of its
rights under this Agreement. This Agreement embodies the entire agreement and
understanding between the Company and Xxxxxx and supersedes all prior agreements
and understandings relating to the subject matter hereof. THIS AGREEMENT SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE
STATE OF NEW YORK. The headings in this Agreement are for purposes of reference
only and shall not limit or otherwise affect the meaning hereof. This Agreement
may be executed in any number of counterparts, each of which shall be an
original, but all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first written above.
XXXX CORP.
By: /s/ ILLEGIBLE
------------------------------------------
Name:
Title:
XXXXXX FUND I, L.P.
By: XXXXXX FUND, Inc.,
its General Partner
By: /s/ ILLEGIBLE
------------------------------------------
Name:
Title:
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