Exhibit 10.15
EQUIVEST FINANCE, INC.
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT ("Agreement") is entered into
effective as of March 30, 1999, by and among Equivest Finance, Inc., a Delaware
corporation ("Company") and Xxxxxxxxx Xxxxx ("Investor").
RECITALS
WHEREAS, Company, Investor and Kosmas Group International, Inc. have
entered into a settlement agreement of even date herewith ("Settlement
Agreement") whereby Company agreed to grant Investor certain registration rights
with respect to (i) shares of common stock of Company granted to Investor under
the Settlement Agreement and (ii) shares of common stock of the Company that may
be received upon the exercise of the stock purchase warrant granted to Investor
under the Settlement Agreement ("Warrant Shares"); and
WHEREAS, the parties hereto wish to specify the respective rights
and obligations of the parties with respect to the registration of such shares
of such common stock of the Company pursuant to a registration statement filed
with the U.S. Securities and Exchange Commission upon the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the mutual premises, covenants
and conditions set forth herein, the parties hereby agree as follows:
1. Definitions. For the purposes of this Agreement:
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"Commission" means the U.S. Securities and Exchange Commission
or any other governmental authority from time to time administering the
Securities Act.
"Common Shares" means shares of common stock of the Company.
"CSFB Shares" means those shares of common stock of the
Company defined as "Registrable Securities" pursuant to the Registration Rights
Agreements between the Company and Credit Suisse First Boston Mortgage Capital
LLC dated as of July 17, 1998 and November 14, 1997.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended or any similar federal statute and the rules and the regulations of the
Commission promulgated thereunder, all as the same shall be in effect from time
to time.
"Xxxxxx Shares" means those shares of common stock of the
Company defined as "Registrable Securities" pursuant to the Stockholders'
Agreement between the Company and R. Xxxxx Xxxxxx and Xxxxx Xxxxxx dated as of
July 16, 1998.
"Register," "Registered," and "Registration" refer to a
registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or similar document.
"Registrable Securities" means (a) the Common Shares received
by Investor pursuant to the Settlement Agreement, (b) the Warrant Shares (if
any), and (c) any common stock of the Company issued as a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
foregoing. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (x) 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 transferred in accordance
with such registration statement, (y) such securities shall have been sold to
the public pursuant to Rule 144 (or any successor provision) under the
Securities Act or Investor is free to sell all such securities without volume or
manner of sale restrictions pursuant to Rule 144 (or any successor provision)
under the Securities Act, or (z) they shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Section 2, including, without
limitation, (a) any allocation of salaries and expenses of Company personnel or
other general overhead expenses of the Company, or other expenses for the
preparation of historical and pro forma financial statements or other data
normally prepared by the Company in the ordinary course of business; (b) all
Registration, application, filing, transfer fees, exchange listing fees, and
register fees; (c) all NASD fees and fees and expenses of Registration or
qualification of Registrable Securities under state securities or blue sky laws;
(d) all word processing, duplicating and printing expenses, messenger and
delivery expenses; (e) the fees and expenses of counsel for the Company and the
fees of the Company's independent accountants, including the expenses of
customary "cold comfort" letters required by or incident to such performance and
compliance; and (f) any fees and disbursements of underwriters and
broker-dealers customarily paid by issuers or sellers of securities; provided,
however, that in all cases in which the Company is required to pay Registration
Expenses hereunder, Registration Expenses shall exclude (x) broker or
underwriting fees, discounts, selling commissions and transfer taxes, if any, in
respect of the Registrable Securities, (y) all out-of-pocket expenses of
Investor's brokers or dealers, and (z) all fees and disbursements of counsel for
Investor or any such brokers or dealers, all of which shall be borne by
Investor.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
2. Piggyback Registration. If (but without any obligation to do so)
(a) the Company proposes to register (including for this purpose a registration
effected by the Company for any stockholders other than Investor) any of its
Common Shares under the Securities Act in connection with the underwritten
public offering of such securities solely for cash (other than a Registration
relating solely to the sale of securities to participants in a Company stock
plan, or on Form S-4 with respect to any merger, consolidation or acquisition)
and (b) a registration statement covering the sale of all of the Registrable
Securities is not then effective and available for sales thereof by Investor,
the Company will, prior to such filing, give written notice to Investor of its
intention to do so. Investor shall have fifteen (15) days after receiving such
notice to deliver to the Company a written request specifying the amount of
Registrable Securities that Investor intends to sell and its intended method of
disposition of such Registrable Securities. Upon the receipt of such request,
the Company shall use commercially reasonable efforts to cause all Registrable
Securities the Company has been requested by Investor to register to be
registered under the Securities Act to the extent necessary to permit their sale
or other disposition in accordance with the intended methods of distribution
specified in the request of Investor; provided, however, that the Company shall
have the right, prior to the effective date of the registration statement, to
postpone or withdraw any registration effected pursuant to this Section 2
without obligation to Investor.
3. Underwriting Requirements. In connection with any proposed
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registration as to which Investor has a right to notice under Section 2 and that involves
an underwriting:
(a) The Company shall not be required to include any
Registrable Securities in such offering unless Investor accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it (provided that such terms must be consistent with this Agreement), and then
only in such quantity as will not, in the opinion of the underwriters,
jeopardize the success of the offering by the Company; and
(b) If the underwriter for the offering advises the Company in
writing that the number of Registrable Securities requested to be included will
adversely affect the success of the offering, the Company shall include in such
offering only the quantity of Registrable Securities, if any, as shall be
determined as set forth below:
(i) In the case of the Company's public offering of its Common
Stock or other securities pursuant to a registration statement declared
effective with the Commission after the date of this Agreement, the Company may
exclude some or all of the Registrable Securities from such registration and
underwriting in the Company's sole discretion (provided, however, that the
Company may elect to exclude Registrable Securities pursuant to this Section
3(b)(i) as to only one registration); and
(ii) In the case of any registered public offering other than
the one to which the Company elects to apply Section 3(b)(i): (A) first, the
Company may include in such underwriting a number of CSFB Shares equal to no
greater than 20% of the total securities to be registered in such offering; (B)
second, the Company may include in such underwriting a number of Xxxxxx Shares
equal to no greater than 20% of the total securities to be registered in such
offering; (C) third, the Company shall include in such underwriting all of the
securities the Company proposes to sell; and (D) fourth, the Company shall
include the number of Registrable Securities and Company securities of other
holders (including CSFB Shares and Xxxxxx Shares in addition to those included
pursuant to clauses (A) and (B) above) that the underwriter advises will not
adversely affect the success of the offering, allocated, pro rata, among
Investor and the other holders entitled to registration, based upon the number
of Common Shares each such person shall have requested the Company to include in
the offering.
4. Allocation of Expenses. The Company will pay all Registration Expenses
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of all Registrations under this Agreement. Investor shall be responsible for all other
expensed incurred by it or its agents in connection with the Registrations.
5. Obligations of the Company. Whenever required under this
Agreement to effect the Registration of any Registrable Securities under this
Agreement, the Company shall, as expeditiously as reasonably possible:
(a) File with the Commission a registration statement with
respect to such Registrable Securities and use commercially reasonable efforts
to cause such registration statement to become and remain effective until the
earlier of (i) ninety (90) days, or if such registration statement is related to
an underwritten offering, such longer period as in the reasonable opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with the sales of Registrable Securities by an underwriter or dealer
or (ii) such shorter period as is required to complete the distribution of all
of the securities covered by such registration statement (but in any event not
before the expiration of any longer period required under the Securities Act).
(b) Prepare and file with the Commission such amendments and
supplements to the registration statement and the prospectus used in connection
with the registration as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by the
registration statement during such period in accordance with the intended
methods of disposition by Investor set forth in such registration statement,
including at the request of Investor, any amendments or supplements necessary to
reflect any information regarding Investor or its plan of distribution, until
the earlier of (i) such time as the Common Shares cease to be Registrable
Securities or (ii) the date on which Investor is permitted, pursuant to Rule 144
(or any successor provision) under the Securities Act, to dispose of all of the
Registrable Securities without regard to without volume or manner of sale
restrictions;
(c) Furnish to Investor such reasonable numbers of copies of
the prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as Investor may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Securities owned by Investor; provided, however, that if the
Company has delivered preliminary or final prospectuses to Investor and after
having done so the prospectus is amended to comply with the requirements of the
Securities Act, the Company shall promptly notify Investor and, if requested,
Investor shall immediately cease making offers of Registrable Securities and
return all prospectuses to the Company. The Company shall promptly provide
Investor with revised prospectuses and, following receipt of the revised
prospectuses, Investor shall be free to resume making offers of the Registrable
Securities;
(d) Use commercially reasonable efforts to register or qualify
the Registrable Securities covered by the registration statement under the
securities or Blue Sky laws of such states as Investor shall reasonably request,
and do any and all other acts and things that may be necessary or desirable to
enable Investor to consummate the public sale or other disposition in such
states of the Registrable Securities owned by Investor; provided, however, that
the Company 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;
(e) In the event of any underwritten public offering, enter
into and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering; provided,
however, that Investor shall also enter into and perform its obligations under
such agreement; and
(f) Notify Investor at any time when a prospectus relating to
the Registrable Securities is required to be delivered under the Securities Act
of the happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the
circumstances then existing.
6. Certain Obligations of Investor. It shall be a condition precedent to
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the obligations of the Company to take any action under this Agreement with respect to
the Registrable Securities of Investor that Investor meet the following conditions:
(a) Investor shall furnish to the Company such information
regarding itself, the Registrable Securities held by it, and the intended method
of disposition of such securities as shall be required to effect the
Registration of Investor's Registrable Securities;
(b) All information specifically with respect to Investor
furnished to the Company by or on behalf of Investor for use in connection with
the preparation of any registration statement relating to such Registrable
Securities shall be true and correct in all material respects and shall not omit
any material fact necessary to make such information, in light of the
circumstances under which it was disclosed, not misleading;
(c) Investor shall distribute in connection with the offering
and sale of the Registrable Securities the prospectus or other offering material
permitted by the Securities Act and prepared by the Company, and only such
materials;
(d) Investor will comply with the provisions of the Exchange Act and
the regulations thereunder;
(e) To assist the Company in qualifying the Registrable
Securities for sale under applicable state securities laws, Investor will advise
the Company of each jurisdiction in which it intends to offer or sell any or all
Registrable Securities, and will agree not to offer or sell any Registrable
Securities in any jurisdiction where the Registrable Securities are not
registered or exempt from registration;
(f) Investor will inform the Company in writing of any and all
sales, or other transfers or dispositions of any Registrable Securities within
fifteen (15) calendar days following each such disposition;
(g) In the event of any underwritten public offering of any
Registrable Securities pursuant to Section 2, Investor shall enter into and
perform its obligations under an underwriting agreement, in the form agreed upon
by the Company and the underwriters selected by it that is customary for the
type of transaction contemplated and reasonably acceptable to Investor;
(h) Upon the receipt of notice from the Company of the
happening of any event described in Section 5(f), or upon the issuance of any
stop order or other order suspending the effectiveness of the registration
statement, Investor will immediately discontinue disposition of the Registrable
Securities pursuant to the registration statement until the filing of the
effective post-effective amendment or the supplemented prospectus referred to in
Section 5(f) or until the withdrawal of such stop order or other order, as
applicable, and, if so directed by the Company, Investor will deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in Investor's possession, of the prospectus covering such Registrable
Securities current at the time of its receipt of such notice.
7. Indemnification and Contribution. In the event of any Registration of
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any of the Registrable Securities under the Securities Act pursuant to this Agreement:
(a) The Company will indemnify and hold harmless Investor,
each underwriter of such Registrable Securities, and each other person, if any,
who controls Investor or underwriter within the meaning of the Securities Act or
the Exchange Act (collectively, the "Indemnified Investor Parties"), against any
losses, claims, damages, or liabilities, joint or several, to which the
Indemnified Investor Parties may become subject under the Securities Act, the
Exchange Act, state securities or Blue Sky laws, or otherwise, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon a claim by a third party alleging any of the following
statements, omissions or violations (collectively the "Indemnified Violations"):
(i) any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Registrable Securities
were registered under the Securities Act, any preliminary prospectus, or final
prospectus contained in the registration statement, or any amendment or
supplement to such registration statement; (ii) the omission or alleged omission
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; or (iii) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act, any state securities law
or any rule or regulation promulgated under the Securities Act, the Exchange Act
or any state securities law. The Company will reimburse such Indemnified
Investor Party for any legal (to the extent provided in Section 7(c)) and other
expenses reasonably incurred in connection with defending any such Indemnified
Violation; provided, however, that:
(x) The indemnity agreement contained in this Section 7(a)
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon an Indemnified
Violation which occurs in reliance upon and in conformity with written
information furnished by any Indemnified Investor Party expressly for use in
connection with such registration;
(y) The Company will not be required to indemnify any
Indemnified Investor Party to the extent that any loss, claim, damage, liability
or action results from such party selling Registrable Securities (1) to anyone
to whom there was not sent or given, at or prior to the written confirmation of
the sale of such Registrable Securities, a copy of the prospectus, as most
recently amended or supplemented, if the Company has previously furnished or
made available to the sellers of the Registrable Securities copies thereof or
(2) during any period following written notice by the Company to such party of
an event described in Section 5(f) or of the issuance of any stop order or other
order suspending the effectiveness of the registration statement; and
(z) The indemnity provided in this Section 7(a) with respect to
any preliminary prospectus shall not apply, if the untrue statement or alleged
untrue statement or omission or alleged omission was corrected in the final
prospectus.
(b) Investor will indemnify and hold harmless the Company,
each of its directors and officers and each underwriters (if any) and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act (collectively, the
"Indemnified Company Parties"), against any losses, claims, damages, or
liabilities, joint or several, to which the Company, such Indemnified Company
Parties may become subject under the Securities Act, Exchange Act, state
securities or Blue Sky laws, 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 a material fact
contained in any registration statement under which such Registrable Securities
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the registration statement, or any amendment or
supplement to the registration statement, or arise out of or are based upon any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if the
statement or omission was made in reliance upon and in conformity with
information relating to Investor furnished in writing to the Company by or on
behalf of Investor specifically for use in connection with the preparation of
such registration statement, prospectus, amendment, or supplement. Investor will
reimburse each of the Indemnified Company Parties for any legal and other
expenses reasonably incurred in connection with defending any such claim,
liability, demand, loss or action; provided, however, that the indemnity
agreement contained in this Section 7(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of Investor (which consent will not
be unreasonably withheld); and provided, further, that the obligations of
Investor hereunder shall be limited to an amount equal to the proceeds to
Investor of Registrable Securities sold in connection with such Registration.
(c) Each party entitled to indemnification under this Section
7 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, however, that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld). The failure by the Indemnified Party to deliver written
notice to the Indemnifying Party within a reasonable time of the commencement of
any such action, to the extent such failure is prejudicial to its ability to
defend such action, shall relieve such Indemnifying Party of any liability to
the Indemnified Party under this Section 7(c), but the omission so to deliver
written notice to the Indemnifying Party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section
7(c). The Indemnified Party may participate in such defense at such party's
expense; provided, however, that the Indemnifying Party shall pay such expense
if representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by such
counsel in such proceeding. No Indemnifying Party in the defense of any such
claim or litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party a release from all liability in respect of such claim
or litigations, and no Indemnified Party shall consent to entry of any judgment
or settle such claim or litigation without the prior written consent of the
Indemnifying Party.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i)
Investor, or any controlling person of Investor, makes a claim for
indemnification pursuant to this Section 7 but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 7 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part of Investor or
any such controlling person in circumstances for which indemnification is
provided under this Section 7; then, in each such case, the Company and Investor
will contribute to the aggregate losses, claims, damages, or liabilities to
which they may be subject (after contribution from others) in such proportions
so that Investor is responsible for the portion represented by the percentage
that the public offering price of its Registrable Securities offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Company is responsible for the
remaining portion; provided, however, that, in any such case, (A) Investor will
not be required to contribute any amount in excess of the proceeds to it of all
Registrable Securities sold by it pursuant to such registration statement, and
(B) no person or entity guilty of fraudulent misrepresentation, within the
meaning of Section 11(f) of the Securities Act, shall be entitled to
contribution from any person or entity who is not guilty of such fraudulent
misrepresentation.
(e) The obligations of the Company and Investor under this
Section 7 shall survive the completion of any offering of Registrable Securities
in a registration statement under this Section 7, or otherwise.
8. Amendment of Registration Rights. Any provision of this Agreement
may be amended or the observance thereof may be waived either generally or in a
particular instance and either retroactively or prospectively, only with the
written consent of the Company and the holders of 50.1% of the Registrable
Securities then outstanding. Any amendment or waiver effected in accordance with
this Section 8 shall be binding upon Investor and the Company. Nothing herein
shall prevent a holder of Registrable Securities from waiving its individual
rights. The number of shares of "Registrable Securities then outstanding" shall
be determined by the number of Common Shares outstanding and the number of
Common Shares issuable pursuant to then exercisable or convertible securities,
which are, in each case, Registrable Securities.
9. Miscellaneous.
(a) Entire Agreement. This Agreement and the documents
referred to herein constitute the entire agreement among the parties relating to
the subject matter hereof, and supersedes all prior agreements, arrangements,
and understandings, written or oral, relating to the subject matter hereof.
(b) Specific Performance. Investor agrees that irreparable
damage would occur and that the Company would not have any adequate remedy at
law in the event that any of the provisions of this Agreement were not performed
in accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the Company shall be entitled to an injunction or
injunctions to prevent breaches by Investor of this Agreement and to enforce
specifically the terms and provisions of this Agreement, this being in addition
to any other remedy to which it is entitled at law or in equity. The Company
agrees that irreparable damage would occur and that Investor would not have any
adequate remedy at law in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that Investor shall be entitled to an
injunction or injunctions to prevent breaches by the Company of this Agreement
and to enforce specifically the terms and provisions of this Agreement, this
being in addition to any other remedy to which it is entitled at law or in
equity
(c) Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and permitted assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and permitted assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement
except as expressly provided in this Agreement.
(d) Notices. Unless otherwise provided, any notice required or
permitted under this Agreement shall be sent by courier service or certified
mail, return receipt requested, charges pre-paid, or by facsimile transmission,
to the address or facsimile number specified below:
If to the Company:
Equivest Finance, Inc.
Attn: Xxxxxxx Xxxxxxx
000 Xxxx Xxxxx
Xxxxxxx, Xxxxx Xxxxxx 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx, Xxxxxx & Xxxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attn: Xxxx X. Xxxxxx
Fax: (000) 000-0000
If to Investor:
Xxxxxxxxx Xxxxx c/o Xxxxx X. D'Amour
Xxxx Xxxxx Xxxx & XxXxxx LLP
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxxx X. D'Amour
Fax: (000) 000-0000
or to such other address or facsimile number as the person may specify in a
notice duly given to the sender as provided herein. Notice given hereunder will
operate and be deemed effective and received (a) in the case of facsimile, when
received by recipient in legible form and sender has received an electronic
confirmation of receipt of the transmission (provided, however, that such
transmission and confirmation are received by 5:00 p.m. on a business day;
otherwise, such transmission shall be deemed to have been received on the next
business day); (b) in the case of delivery by courier, upon the date of delivery
indicated in the records of such courier; or (c) in the case of certified mail,
upon signing of the return receipt
(e) Headings; Counterparts. 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.
(f) Further Assurances. Each of the parties hereto agrees to
execute and deliver those writings and documents reasonably required to more
fully carry out the purposes of this Agreement and the transactions contemplated
hereby.
(g) Governing Law; Severability. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York, exclusive of any choice of law principles that would result in a
choice of law other than the laws of the State of New York, except to the extent
superseded or preempted by the laws of the United States. Whenever possible,
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under said laws; provided, however, that if any provision of
this Agreement shall be held to be invalid or unenforceable under applicable
law, such provision shall be ineffective only to the extent of such invalidity
or unenforceability, without invalidating the remainder of such provision or the
remainder of the provisions of this Agreement.
(h) Consent of Jurisdiction. The parties consent to and waive
any objection to the jurisdiction of the United States District Court for the
Northern District of New York, or any state court located in Onondaga County,
New York, over the person of any party to this Agreement, for purposes of any
action brought under or as the result of a breach of this Agreement. The parties
agree that venue of any action brought under or as the result of a breach of
this Agreement shall be proper in the courts named above, and each party waives
any objection to such venue.
[Execution Page to Follow]
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed under seal by their respective duly authorized officers as of the day
and year first above written.
EQUIVEST FINANCE, INC.
By:/s/
Name: Xxxxxxx X. Xxxxxxx
Title: General Counsel
XXXXXXXXX XXXXX
By: /s/
