Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
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REGISTRATION RIGHTS AGREEMENT, dated as of May 20, 1999 (this "Agreement"),
by and among xxx.xxx inc., a corporation organized under the laws of the State
of Delaware, with headquarters located at 0000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxxx,
Xxxxxxxx 00000 (the "Company"), and the undersigned (the "Investors").
WHEREAS, pursuant to that certain Series A Preferred Securities Purchase
Agreement, dated as of May 20, 1999 (the "Purchase Agreement"), by and among the
Company and the Investors, the Investors have agreed to acquire 90,000 shares of
Series A 8% Cumulative Redeemable Convertible Preferred Stock, par value $.01
per share, of the Company (the "Preferred Stock"), all of which may be converted
into the Company's Class A common stock, par value $.01 per share (the "Common
Stock"), pursuant to the terms of the Preferred Stock; and
WHEREAS, in connection with the Purchase Agreement, the Company has agreed
to register for sale by the Investors and certain transferees, the Common Stock
received by the Investors upon conversion of the Preferred Stock; and
WHEREAS, the parties hereto desire to enter into this Agreement to evidence
the foregoing agreement of the Company and the mutual covenants of the parties
relating thereto;
NOW, THEREFORE, in consideration of the foregoing and the covenants of the
parties set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, subject to the terms
and conditions set forth herein, the parties hereby agree as follows:
Section 1. Certain Definitions. In this Agreement the following terms shall
have the following respective meanings:
"Affiliate" means, when used with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
controls or is controlled by or is under common control with the Person
specified.
"Commission" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the relevant time.
"Holders" shall mean (i) the Investors and (ii) each Person holding
Registrable Stock or Preferred Stock which is convertible into Registrable Stock
as a result of a transfer or assignment to that Person of Registrable Stock
permitted pursuant to Section 9 of this Agreement.
"Indemnified Party" has the meaning ascribed to it in Section 6(c) of
this Agreement.
"Indemnifying Party" has the meaning ascribed to it in Section 6(c) of
this Agreement.
"Person" means an individual, corporation, partnership, estate, trust,
association, private foundation, joint stock company or other entity.
"Piggyback Notice" has the meaning ascribed to it in Section 3(a) of
this Agreement.
"Piggyback Registration" has the meaning ascribed to it in Section
3(a) of this Agreement.
"Preferred Stock" has the meaning ascribed to it in the recitals to
this Agreement.
The terms "Register," "Registered" and "Registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act providing for the sale by the Holders of
Registrable Stock in accordance with the method or methods of distribution
designated by the Holders, and the declaration or ordering of the effectiveness
of such registration statement by the Commission.
"Registrable Stock" means the Common Stock received by the Investors
upon conversion of the Preferred Stock acquired by the Investors pursuant to the
Purchase Agreement, except that as to any particular Registrable Stock, once
issued such securities shall cease to be Registrable Stock when (a) a
registration statement with respect to the sale of such securities becomes
effective under the Securities Act and such securities are disposed of in
accordance with such registration statement, (b) such securities are sold in
accordance with Rule 144 (or any successor provision) under the Securities Act
or (c) such Securities become transferrable within any consecutive 90-day period
in accordance with Rule 144.
"Registration Request" has the meaning ascribed to it in Section 2(a)
of this Agreement.
"Rule 144" means Rule 144 (or any successor provision) promulgated by
the Commission under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the relevant time.
Section 2. Demand Registration.
(a) Upon receipt of a written request (a "Registration Request"),
delivered not earlier than 180 days after the date of the closing of the initial
public offering by the Company of the Common Stock, from Holders holding at
least 33 1/3% of the aggregate of the number of Shares of Registrable Stock then
outstanding (assuming for purposes of such calculation the conversion of all
outstanding shares of Preferred Stock), the Company shall (i) promptly give
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written notice of the Registration Request to all non-requesting Holders and
(ii) prepare and file with the Commission, within 60 days after its receipt of
such Registration Request, a registration statement for the purpose of effecting
a Registration of the sale of all Registrable Stock by each of the Holders which
submitted such Registration Request and any other Holder who requests to have
such Holder's Registrable Stock included in such registration statement within
10 days after receipt of notice by such Holder of the Registration Request;
provided, however, that the Company will not be required to effect the
Registration of Registrable Stock unless the Registrable Stock is offered at an
aggregate offering price of not less than $5,000,000. The Company shall use its
reasonable best efforts to effect such Registration as soon as practicable
(including, without limitation, the execution of an undertaking to file post-
effective amendments and appropriate qualification under applicable state
securities laws). In the event such Registration Request is delivered on or
before the first anniversary of the closing of the Company's initial public
offering of the Common Stock, any offering effected pursuant to the Registration
related to such Registration Request shall be an underwritten offering. In the
event such Registration Request is delivered after the first anniversary of the
closing of the Company's initial public offering of the Common Stock and the
Company is eligible to register such Registrable Stock on a continuous basis
under Rule 415 of the Securities Act by filing a Registration Statement on Form
S-3, the Company shall, at the request of requesting Holders, effect such
Registration on a Registration Statement on Form S-3 pursuant to Rule 415. The
Company shall use its reasonable best efforts to keep such Registration
continuously effective until the earlier of (i) the second anniversary of the
date hereof, (ii) the date on which all Registrable Stock have been sold
pursuant to such registration statement or Rule 144 and (iii) the date on which
all of the Registrable Stock held by such Holder may be sold in any consecutive
three month period in accordance with Rule 144; provided, however, that the
Company shall not be obligated to maintain the effectiveness of any Registration
that is not effected under Rule 415 for a period in excess of 90 days; provided,
further, that the Company shall not be obligated to take any action to effect
any such Registration, qualification or compliance pursuant to this Section 2 in
any particular jurisdiction in which the Company would be required to (x)
execute a general consent to service of process in effecting such Registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction or (y) qualify as a foreign corporation in any jurisdiction in
which the Company is not then qualified.
Notwithstanding the foregoing, the Company shall have the right (the
"Suspension Right") to defer such filing (or suspend sales under any filed
registration statement or defer the updating of any filed registration statement
and suspend sales thereunder) for a period of not more than 120 days during any
one-year period ending on December 31, if the Company furnishes to the Holders a
certificate signed by an executive officer or any director of the Company
stating that, in the good faith judgment of the Company, it would be detrimental
to the Company and its stockholders to file such registration statement or
amendment thereto at such time (or continue sales under a filed registration
statement) and therefore the Company has elected to defer the filing of such
registration statement (or suspend sales under a filed registration statement).
(b) The Company is not required to effect more than two (2)
Registrations pursuant to this Section 2.
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Section 3. Piggyback Registrations.
(a) At any time after the 180th day after the date of the closing of
the initial public offering by the Company of the Common Stock, so long as the
Investors and their Affiliates hold at least 25% of the Registrable Stock
originally issued pursuant to the Purchase Agreement, if the Company proposes to
register any of its common equity securities or any securities convertible into
its common equity securities under the Securities Act (other than pursuant to
(i) a registration statement filed pursuant to Rule 415 under the Securities
Act, (ii) a registration on Form S-4 or any successor form, or (iii) an offering
of securities in connection with an employee benefit, share dividend, share
ownership or dividend reinvestment plan) and the registration form to be used
may be used for the registration of Registrable Stock, the Company will give
prompt written notice to all holders of Registrable Stock of its intention to
effect such a registration (each a "Piggyback Notice") and, subject to
subparagraph 3(c) below, the Company will include in such registration all
Registrable Stock with respect to which the Company has received written
requests for inclusion therein within ten days after the date of sending the
Piggyback Notice (a "Piggyback Registration"), unless, if the Piggyback
Registration is not an underwritten offering, the Company in its reasonable
judgement determines that, or in the case of an underwritten Piggyback
Registration the managing underwriters advise the Company that, the inclusion of
Registrable Stock would adversely interfere with such offering, affect the
Company's securities in the public markets or otherwise adversely affect the
Company. Nothing herein shall affect the right of the Company to withdraw any
such registration in its sole discretion.
(b) If a Piggyback Registration is a primary registration on behalf of
the Company and, if the Piggyback Registration is not an underwritten offering,
the Company in its reasonable judgement determines that, or in the case of an
underwritten Piggyback Registration, the managing underwriters advise the
Company that the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner within a
price range acceptable to the Company, the Company will include in such
registration (i) first, the securities the Company proposes to sell and (ii)
second, the Registrable Stock requested to be included in such Registration and
any other securities requested to be included in such registration, pro rata
among the holders of Registrable Stock requesting such registration and the
holders of such other securities on the basis of the number of shares of such
Registrable Stock and other securities requested for inclusion in such
registration by each such holder.
(c) If a Piggyback Registration is a secondary registration on behalf
of holders of the Company's securities other than the holders of Registrable
Stock, and, if the Piggyback Registration is not an underwritten offering, the
Company determines that, or in the case of an underwritten Piggyback
Registration, the managing underwriters advise the Company that the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the holders initially requesting such registration, the Company
will include in such registration the securities requested to be included
therein by the holders requesting such registration and the Registrable Stock
requested to be included in such registration, pro rata among the holders of
securities requesting such registration on the basis of the number of shares of
such Registrable Stock and other securities requested for inclusion in such
registration by each such holder.
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(d) In the case of an underwritten Piggyback Registration, the Company
will have the right to select the investment banker(s) and manager(s) to
administer the offering. If requested by the underwriters for any underwritten
offerings by Holders, under a registration requested pursuant to Section 2(a),
the Company will enter into a customary underwriting agreement with such
underwriters for such offering, to contain such representations and warranties
by the Company and such other terms which are customarily contained in
agreements of this type. The Holders shall be a party to such underwriting
agreement and may, at their option, require that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of Holders. The Holders
shall not be required to make any representations or warranties to or agreement
with the Company or the underwriters other than representations, warranties or
agreements regarding the Holders, the Holders' right and interest in the
Registrable Stock and the Holders' intended method of distribution and any other
representation or warranties required by law.
Section 4. Registration Procedures.
(a) The Company shall promptly notify the Holders of the occurrence of
the following events:
(i) when any registration statement relating to the Registrable
Stock or post-effective amendment thereto filed with the Commission has
become effective;
(ii) the issuance by the Commission of any stop order suspending
the effectiveness of any registration statement relating to the Registrable
Stock;
(iii) the suspension of an effective registration statement by
the Company in accordance with the last paragraph of Section 2(a) hereof;
(iv) the Company's receipt of any notification of the suspension
of the qualification of any Registrable Stock covered by a registration
statement for sale in any jurisdiction; and
(v) the existence of any event, fact or circumstance of which
the Company has knowledge, that results in a registration statement or
prospectus relating to Registrable Stock or any document incorporated
therein by reference containing an untrue statement of material fact or
omitting to state a material fact required to be stated therein or
necessary to make the statements therein not misleading during the
distribution of securities.
The Company agrees to use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any such registration
statement or any state qualification as promptly as possible. The Investors
agree by acquisition of the Registrable Stock that upon receipt of any notice
from the Company of the occurrence of any event of the type described in Section
4(a)(ii), (iii), (iv) or (v) to immediately discontinue their disposition of
Registrable Stock pursuant to any registration statement relating to such
securities until the Investors' receipt of written notice from the Company that
such disposition may be made.
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(b) The Company shall provide to the Holders, at no cost to the
Holders, a copy of the registration statement and any amendment thereto used to
effect the Registration of the Registrable Stock, each prospectus contained in
such registration statement or post-effective amendment and any amendment or
supplement thereto and such other documents as the requesting Holders may
reasonably request in order to facilitate the disposition of the Registrable
Stock covered by such registration statement. The Company consents to the use of
each such prospectus and any supplement thereto by the Holders in connection
with the offering and sale of the Registrable Stock covered by such registration
statement or any amendment thereto. If the Common Stock is listed on a "national
securities exchange" as defined in Rule 153 under the Securities Act at any time
during the period in which the Company is obligated to keep the registration
statement effective pursuant to Section 2(a), the Company shall also file a
sufficient number of copies of the prospectus and any post-effective amendment
or supplement thereto with such national securities exchange (or, if the Common
Stock is no longer listed thereon, with such other securities exchange or market
on which the Common Stock is then listed) so as to enable the Holders to have
the benefits of the prospectus delivery provisions of Rule 153 under the
Securities Act.
(c) The Company agrees to use its reasonable best efforts to cause the
Registrable Stock covered by a registration statement to be registered with or
approved by such state securities authorities as may be necessary to enable the
Holders to consummate the disposition of such stock pursuant to the plan of
distribution set forth in the registration statement; provided, however, that
the Company shall not be obligated to take any action to effect any such
Registration, qualification or compliance pursuant to this Section 4 in any
particular jurisdiction in which the Company would be required to execute a
general consent to service of process in effecting such Registration,
qualification or compliance unless the Company is already subject to service in
such jurisdiction or qualify as a foreign corporation in any jurisdiction in
which the Company is not then qualified.
(d) Subject to the Company's Suspension Right, if any event, fact or
circumstance requiring an amendment to a registration statement relating to the
Registrable Stock or supplement to a prospectus relating to the Registrable
Stock shall exist, as promptly as practicable upon becoming aware thereof the
Company agrees to notify the Holders and prepare and furnish to the Holders a
post-effective amendment to the registration statement or supplement to the
prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Stock, the prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of
circumstances under which such statements were made.
(e) The Company agrees to use its reasonable efforts (including the
payment of any listing fees) to obtain the listing of all Registrable Stock
covered by the registration statement on each securities exchange on which
securities of the same class or series are then listed.
(f) The Company agrees to use its reasonable efforts to comply with
the Securities Act and the Exchange Act in connection with the offer and sale of
Registrable Stock pursuant to a registration statement, and, as soon as
reasonably practicable following the end of
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any fiscal year during which a registration statement effecting a Registration
of the Registrable Stock shall have been effective, to make available to its
security holders an earnings statement satisfying the provisions of Section
11(a) of the Securities Act.
(g) The Company agrees to cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates representing
Registrable Stock sold pursuant to a Registration and not bearing any Securities
Act legend and to enable certificates for such Registrable Stock to be issued
for such numbers of stock and registered in such names as the Holders may
reasonably request.
Section 5. Expenses of Registration. All reasonable expenses, other than
underwriting discounts and commissions, incurred in connection with
registrations, filings or qualifications pursuant to Sections 2, 3 and 4 hereof,
including, without limitation, all registration, listing and qualifications
fees, printers and accounting fees, the fees and disbursements of counsel for
the Company and the reasonable fees and disbursements of one counsel selected by
the Holders to the extent related to the Registration and Registrable Stock
hereunder shall be borne by the Company.
Section 6. Indemnification.
(a) The Company will indemnify each Holder, each Holder's officers and
directors, and each person controlling such Holder within the meaning of Section
15 of the Securities Act, against all expenses, claims, losses, damages and
liabilities (including reasonable legal expenses), arising out of or based on
any untrue statement (or alleged untrue statement) of a material fact contained
in any registration statement or prospectus relating to the Registrable Stock,
or any amendment or supplement thereto, or based on 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, provided, however, that
the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission, made in
reliance upon and in conformity with information furnished in writing to the
Company by such Holder or underwriter for inclusion therein.
(b) Each Holder will indemnify the Company, each of its directors and
each of its officers who signs the registration statement, each underwriter, if
any, of the Company's securities covered by such registration statement, and
each person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, against all claims, losses, damages and
liabilities (including reasonable legal fees and expenses) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any such registration statement or prospectus, or any amendment or
supplement thereto, or based on 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, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement or prospectus, in
reliance upon and in conformity with information furnished in writing to the
Company by such Holder for inclusion therein.
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(c) Each party entitled to indemnification under this Section 6 (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, but the
omission to so notify the Indemnifying Party shall not relieve it from any
liability which it may have to the Indemnified Party pursuant to the provisions
of this Section 6 except to the extent of the actual damages suffered by such
delay in notification. The Indemnifying Party shall assume the defense of such
action, including the employment of counsel to be chosen by the Indemnifying
Party to be reasonably satisfactory to the Indemnified Party, and payment of
expenses. The Indemnified Party shall have the right to employ its own counsel
in any such case, but the legal fees and expenses of such counsel shall be at
the expense of the Indemnified Party, unless the employment of such counsel
shall have been authorized in writing by the Indemnifying Party in connection
with the defense of such action, or the Indemnifying Party shall not have
employed counsel to take charge of the defense of such action or the Indemnified
Party shall have reasonably concluded that there are defenses available to it or
them which are different from or additional to those available to the
Indemnifying Party (in which case the Indemnifying Party shall not have the
right to direct the defense of such action on behalf of the Indemnified Party),
in any of which events such fees and expenses shall be borne by the Indemnifying
Party. No Indemnifying Party, in the defense of any such claim or litigation,
shall, except with the consent of each Indemnified Party, which consent shall
not be unreasonably withheld, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 6 is
unavailable to a party that would have been an Indemnified Party under this
Section 6 in respect of any expenses, claims, losses, damages and liabilities
referred to herein, then each party that would have been an Indemnifying Party
hereunder shall, in lieu of indemnifying such Indemnified Party, contribute to
the amount paid or payable by such Indemnified Party as a result of such
expenses, claims, losses, damages and liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party on the one
hand and such Indemnified Party on the other in connection with the statement or
omission which resulted in such expenses, claims, losses, damages and
liabilities, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Indemnifying Party or such Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 6(d).
(e) 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.
(f) In no event shall any Holder be liable for any expenses, claims,
losses, damages or liabilities pursuant to this Section 6 in excess of the net
proceeds to such Holder of any Registrable Stock sold by such Holder.
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Section 7. Information to be Furnished by Holders. Each Holder shall
furnish to the Company such information as the Company may reasonably request
and as shall be required in connection with the Registration and related
proceedings referred to in Section 2 or Section 3 hereof. If any Holder fails to
provide the Company with such information within 10 days of receipt of the
Company's request, the Company's obligations under Section 2 or Section 3
hereof, as applicable, with respect to such Holder or the Registrable Stock
owned by such Holder shall be suspended until such Holder provides such
information.
Section 8. Rule 144 Sales.
(a) The Company covenants that it will use its reasonable efforts to
file the reports required to be filed by the Company under the Exchange Act, so
as to enable any Holder to sell Registrable Stock pursuant to Rule 144 under the
Securities Act.
(b) In connection with any sale, transfer or other disposition by any
Holder of any Registrable Stock pursuant to Rule 144 under the Securities Act,
the Company shall cooperate with such Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Stock sold and
not bearing any Securities Act legend and to enable certificates for such
Registrable Stock to be issued for such number of shares and registered in such
names as the selling Holder may reasonably request.
Section 9. Assignment of Registration Rights. Subject to any transfer
restrictions otherwise applicable to the Preferred Stock or the Registrable
Stock, the rights of the Holders hereunder, including the right to have the
Company register Registrable Stock pursuant to this Agreement, shall be
assignable by each Holder to any transferee of all or any portion of the shares
of Preferred Stock or the Registrable Stock if: (i) the transfer to such
transferee is permitted under the Securities Act and applicable state securities
law or exemptions therefrom, (ii) the aggregate amount of Registrable Stock that
will be held by the transferee after giving effect to such transfer is not less
than 15% of the Registrable Stock outstanding on the date hereof, assuming
conversion of all of Preferred Stock, (iii) the Holder agrees in writing with
the transferee or assignee to assign such rights, and a copy of such agreement
is furnished to the Company after such assignment, (iv) the Company is furnished
with written notice of (a) the name and address of such transferee or assignee,
and (b) the securities with respect to which such registration rights are being
transferred or assigned, (v) following such transfer or assignment, the further
disposition of such securities by the transferee or assignee is restricted under
the Securities Act and applicable state securities laws, (vi) the transferee or
assignee agrees in writing for the benefit of the Company to be bound by all of
the provisions contained herein, and (vii) such transfer shall have been made in
accordance with the applicable requirements of the Purchase Agreement.
Section 10. Miscellaneous.
(a) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware applicable to contracts
made and to be performed in the State of Delaware. The Company and Investors
agree that service of process upon the Company and Investors, respectively,
mailed by first class mail, shall be deemed in every respect effective service
of process upon the Company and Investors, respectively, in any
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such suit or proceeding. Nothing herein shall affect the right of the Company or
the right of any Investor to serve process in any other manner permitted by law.
(b) Entire Agreement. This Agreement, the Purchase Agreement and the
Certificate of Designation, Preferences and Rights of the Preferred Stock
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof.
(c) Amendment. No supplement, modification, waiver or termination of
this Agreement shall be binding unless executed in writing by the party to be
bound thereby.
(d) Notices, etc. Each notice, demand, request, request for approval,
consent, approval, disapproval, designation or other communication (each of the
foregoing being referred to herein as a notice) required or desired to be given
or made under this Agreement shall be in writing (except as otherwise provided
in this Agreement), and shall be effective and deemed to have been received (i)
when delivered in person, (ii) when sent by fax with receipt acknowledged, (iii)
five (5) days after having been mailed by certified or registered United States
mail, postage prepaid, return receipt requested, or (iv) the next business day
after having been sent by a nationally recognized overnight mail or courier
service, receipt requested. Notices shall be addressed as follows: (a) if to an
Investor, at the Investor's address or fax number set forth below its signature
hereon, or at such other address or fax number as the Investor shall have
furnished to the Company in writing, or (b) if to any assignee or transferee of
an Investor, at such address or fax number as such assignee or transferee shall
have furnished the Company in writing, or (c) if to the Company, at the address
of its principal executive offices and addressed to the attention of the
President, or at such other address or fax number as the Company shall have
furnished to the Investors or any assignee or transferee. Any notice or other
communication required to be given hereunder to a Holder in connection with a
registration may instead be given to the designated representative of such
Holder.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed Execution Page(s)
to be physically delivered to the other party within five days of the execution
hereof.
(f) Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
(g) Section Titles. Section titles are for descriptive purposes only
and shall not control or alter the meaning of this Agreement as set forth in the
text.
(h) Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their respective successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
xxx.xxx inc.
By: /s/
_____________________________________________
Name:__________________________________________
Title:___________________________________________
DBV INVESTMENTS, L.P.
By: /s/
_____________________________________________
Name:__________________________________________
Title:___________________________________________
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