EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made by and
among ADVA International Inc. (the "Company"), and the investors listed on
Schedule I hereto (collectively, the "Investors" and each an "Investor"), each
of whom has executed a signature page hereto.
RECITALS
A. The Company shall issue 12,468,750 shares of its common stock to the
stockholders (the "Stockholders") of Global Information Group USA, Inc. ("GIG"),
all of whom comprise certain of the Investors hereunder, in return for 100% of
the issued and outstanding stock of GIG in a Stock Exchange with the result that
the Stockholders will own 94.57% of the outstanding shares of Company stock,
with the remaining shares (716,250), representing 5.43% will continue to be
owned by certain investors (which consist of the current shareholders of the
Company).
B. To induce Investors to accept the Share Exchange, the Company is
willing under certain circumstances to register under the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the
"Securities Act"), the common stock, $.001 par value (the "Common Stock"), owned
or to be owned by the Investors.
NOW THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Required Demand Registration for the Investors listed on Schedule II
hereto.
(a) At any time after the date hereof until the fifth anniversary
hereof, holders of at least 25% of the then outstanding shares of the
Registrable Securities may request, in writing, that the Company effect the
registration of Registrable Securities (as defined in Section 7 hereof) owned by
such holders on a form that may be used for the registration of Registrable
Securities. If the holders initiating the registration intend to distribute the
Registrable Securities by means of an underwriting, they shall so advise the
Company in their request. In the event such registration is underwritten, the
right of other holders to participate shall be conditioned on such holders'
participation in such underwriting. Upon receipt of any such request, the
Company shall promptly give written notice of such proposed registration to all
holders of the Registrable Securities who have been granted registration rights
hereunder. Such holders shall have the right, by giving written notice to the
Company within 30 days after the Company provides its notice, to elect to have
included in such registration a number of their Registrable Securities, as such
holders may request in such notice of election; provided that if the underwriter
(if any) managing the offering determines that, because of marketing factors,
all of the securities, including the Registrable Securities, requested to be
registered by all holders may not be included in the offering, then the
securities requested to be included therein by the holders of the Registrable
Securities requested to be included in such registration, shall be reduced pro
rata among the holders of such Registrable Securities on the basis of the number
of shares owned by each such holder. Thereupon, the Company shall, as
expeditiously as possible, use its best efforts to effect the registration (on a
form that may be used for the registration of the Registrable Securities) of all
the Registrable Securities which the Company has been requested to so register.
(b) The Company shall not be required to effect more than one
registration pursuant to the first sentence of paragraph (a) above; provided,
however, in the event of a proration pursuant to the foregoing paragraph (a)
which results in Investors holding Registrable Securities having less than all
of the requested securities being included in a current registration, then, to
the extent of such unincluded Registrable Securities, the Investors shall
receive an additional demand registration right such upon the expiration of any
blackout period, upon the request of the holders of 25% of the remaining
Registrable Securities, and the Company shall be obligated to file an additional
registration statement (which registration statement shall contain a current
prospectus) relating to the Registrable Securities; and (ii) the Company shall
use its best efforts to effect the registration of such Registrable Securities
as promptly as practicable thereafter.
(c) The Registration Expenses (as defined in Section 4) shall be
paid by the Company with respect to all registrations effected pursuant to this
Section and Section 2.
(d) The Company may delay the filing or effectiveness of any
registration statement for the period or periods set forth below after the date
of a request pursuant to this Section 1 if at the time of such request to
register Registrable Securities: (i) the Company is engaged or has fixed plans
to engage within 30 days of the time of the request (and subsequent thereto does
so engage) in a firm commitment underwritten public offering for a period 90
days in connection with public offerings or (ii) the Company furnishes to the
Investor or Investors requesting registration a certificate signed by senior
executive officer of the Company stating that the Company is engaged in any
other activity which, in the good faith determination of the Company's Board of
Directors, is a material non-public event which would be adversely affected by
the requested registration to the material detriment of the Company, then the
Company may at its option direct that such request be delayed for a period not
in excess of 90 days from the effective date of such offering or the date of
commencement of such other material activity, as the case may be, provided,
however, the Company may not utilize the right set forth in this clause (ii)
more than once in any 12-month period.
2. Piggyback Registration for the Investors listed on Schedule I.
(a) Each time that the Company proposes to register a public
offering solely of its authorized but unissued Common Stock or shares held in
Treasury ("Primary Shares") for its account or the offering of its Common Stock
for the account of other stockholders or other securities, other than pursuant
to a Registration Statement on Form S-4 or Form S-8 or similar or successor
forms (collectively, "Excluded Forms"), the Company shall promptly give written
notice of such proposed registration to all holders of the Registrable
Securities, which shall offer such holders the right to request inclusion of any
Registrable Securities in the proposed registration statement.
(b) Each holder of the Registrable Securities shall have twenty (20)
days or such longer period as shall be set forth in the notice from the receipt
of such notice to deliver to the Company a written request specifying the number
of shares of Common Stock such holder intends to sell and the holder's intended
plan of disposition.
(c) In the event that the proposed registration by the Company is,
in whole or in part, an underwritten public offering of securities of the
Company, any request under Section 2(b) may specify that the Registrable
Securities be included in the underwriting on the same terms and conditions as
the shares of Common Stock, if any, otherwise being sold through underwriters
under such registration.
(d) Upon receipt of a written request pursuant to Section 2(b), the
Company shall promptly use its best efforts to cause all such Registrable
Securities to be registered, to the extent required to permit sale or
disposition as set forth in the written request.
(e) Notwithstanding the foregoing, if the managing underwriter of an
underwritten public offering determines and advises in writing that the
inclusion of all Registrable Securities proposed to be included in the
underwritten public offering, would interfere with the successful marketing of
the securities proposed to be included in the underwritten public offering, then
the number of such shares to be included in such underwritten public offering
shall be reduced, and shares shall be excluded from such underwritten public
offering in a number deemed necessary by such managing underwriter. In the event
an exclusion of shares is necessary, shares shall be included in the following
order: (i) first, the Primary Shares; (ii) second, the Investors holding
Registrable Securities requesting registration. To the extent all of the
Registrable Securities requested to be included in the underwritten public
offering can not be included, holders of Registrable Securities shall
participate in such offering pro rata based on the number of shares of
Registrable Securities each holder proposes to include.
(f) All shares of Common Stock that are not included in the
underwritten public offering shall be withheld from the market by the holders
thereof for a period, not to exceed 90 days for any offering, that the managing
underwriter reasonably determines as necessary in order to effect the
underwritten public offering. The holders of such shares shall execute such
documentation as the managing underwriter reasonably requests to evidence this
lock-up.
3. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof; and pursuant thereto the Company shall
as expeditiously as possible:
(a) prepare and file with the Securities and Exchange Commission
(the "Commission") a registration statement on the appropriate form under the
Securities Act, which form shall be available for the sale of such Registrable
Securities in accordance with the intended method or methods of distribution
thereof, and use its commercially reasonable efforts to cause such registration
statement to become effective (provided that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
shall furnish to the counsel selected by the holders of a majority of the
Registrable Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents shall be subject to the review
and comment of such counsel);
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Commission, such amendments, post-effective amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary or appropriate to keep such registration statement
effective for the period required for sale of the Registrable Securities,
provided that in no event shall the Company be obligated to keep such
registration statement effective: (i) if the Company is eligible to use the Form
S-3, for so long as there are Registrable Securities, and (ii) if the Company is
not eligible to register on Form S-3, until such time as the Investors are
eligible to sell the Registrable Securities pursuant to Rule 144(k), cause such
prospectus as so supplemented to be filed as required under the Securities Act,
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement or supplement to the
prospectus;
(c) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an underwritten
offering, immediately incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority in interest of the Registrable Securities being sold reasonably agree
should be included therein relating to the plan of distribution with respect to
such Registrable Securities, including, without limitation, information with
respect to the principal amount of Registrable Securities being sold to such
underwriters, the purchase price being paid therefor by such underwriters and
with respect to any other terms of the underwritten (or best efforts
underwritten) offering of the Registrable Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;
(d) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(e) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions
where such registration or qualification is required as any seller reasonably
requests and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller (provided
that the Company shall not be required to (i) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify but for
this subparagraph (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any such jurisdiction);
(f) notify each seller of such Registrable Securities, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which the prospectus included in such registration statement as then
in effect, contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, the Company shall promptly prepare a supplement or amendment to such
prospectus so that, thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not contain an untrue statement of a material
fact required to be stated therein or omit to state any fact necessary to make
the statements therein not misleading;
(g) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed or traded, and, if not so listed or traded, to be listed on the NASD
automated quotation system and, if listed on the NASD automated quotation
system, use commercially reasonable efforts to secure NASDAQ authorization for
such Registrable Securities and, without limiting the generality of the
foregoing, to arrange for at least two market makers to register as such with
respect to such Registrable Securities with the NASD, and if not so listed on
the NASD automated quotation systems, use commercially reasonable efforts to
secure OTC Bulletin Board inclusion;
(h) cooperate with the selling holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations and registered in such names as the selling holders or the
managing underwriters, if any, may request at least ten Business Days prior to
any sale of Registrable Securities; provide a transfer agent and registrar for
all such Registrable Securities not later than the effective date of such
registration statement;
(i) enter into such customary agreements (including, if there is an
underwriter, underwriting agreements in customary form including, without
limitation, the requirement to obtain an opinion of counsel to the Company and a
"comfort letter" from the independent public accountants to the Company in the
usual and customary form for such an underwritten offering);
(j) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of the Company that is customary, and cause
the Company's officers, director, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(k) cooperate, and cause the Company's officers, directors,
employees and independent accountants to cooperate, with the selling holders of
Registrable Securities and the managing underwriters, if any, in the sale of the
Registrable Securities and take any actions necessary to promote, facilitate or
effectuate such sale;
(l) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission and make available to its security
holders, as soon as reasonably practicable, an earning statement covering the
period of at least twelve months, beginning with the first fiscal quarter
beginning after the effective date of the registration statement, which earning
statement shall satisfy the provisions of Section 11(a) of the Securities Act;
(m) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order; and
(n) otherwise use its best effects to take all other steps necessary
to effect the registration of the Registrable Securities.
4. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees (including, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel as may be required under the
rules and regulations of the NASD), fees and expenses of compliance with
securities or blue sky laws (including fees and disbursements of counsel for the
underwriters or selling holders in connection with blue sky qualifications and
determination of their eligibility for investment under applicable laws),
printing expenses, messenger, telephone and delivery expenses, fees and
disbursements of custodians, and fees and disbursements of counsel for the
Company and not more than one counsel for the Holders of the Registrable
Securities, and all independent certified public accountants (including the
expenses of any special audit and "cold comfort" letters required by or incident
to such performance), underwriters (excluding underwriters' discounts and
commissions) and other Persons retained by the Company (all such expenses being
herein called "Registration Expenses"), shall be borne by the Company and the
Company shall, in any event, pay its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expense of any annual audit or quarterly
review, the expense of any liability insurance if such insurance coverage is
obtained by the Company and the expenses and fees for listing the securities to
be registered on each securities exchange on which similar securities issued by
the Company are then listed or on the NASD automated quotation system or on the
OTC Bulletin Board; and,
(b) Each holder of securities included in any registration hereunder
shall pay those expenses which are not Registration Expenses, such as the
underwriting discount and any selling commissions, which shall be borne by all
sellers of securities included in such registration in proportion to the
aggregate selling price of the securities to be so registered.
5. Indemnification and Contribution
(a) The Company agrees to indemnify and hold harmless each holder of
Registrable Securities which is included in a registration statement pursuant to
Section 1 and Section 2 herein, its officers and directors and each Person who
controls such holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses which arise out of or are
based upon: (i) any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or any omission or alleged omission
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or with respect to a prospectus, necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to the Company by such holder expressly for
use therein or by such holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such holder with a sufficient number of copies of the
same; and (ii) any violation by the Company of the Securities Act, the Exchange
Act (as defined below), any applicable state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law. In connection with an underwritten offering, the Company shall
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Registrable Securities.
(b) In connection with any registration statement in which a holder
of Registrable Securities is participating, each such holder shall furnish to
the Company in writing such information and affidavits as the Company and any
underwriter reasonably requests for use in connection with any such registration
statement or prospectus and shall indemnify the Company, its directors and
officers and each Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact contained
in the registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue statement or
omission is contained in any information or affidavit so furnished in writing by
such holder for inclusion in the Prospectus.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not materially prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party shall not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
shall not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim shall not be obligated to
pay the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) If the indemnification provided for in this Section 5 is
unavailable to an indemnified party under paragraphs (a) or (b) hereof in
respect to any losses, claims, damages, liabilities or expenses referred to
therein, then an indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the Company and
the holder of Registrable Securities in connection with the statements or
omissions that resulted in such losses, claim, damages, liabilities or expenses.
The relative fault of the Company and the holder of Registrable Securities in
connection with the statements that resulted in such losses, claims, liabilities
or expenses shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of material facts or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the holder of the Registrable Securities and the parties relative intent,
knowledge, access to information and opportunity to correct such statement or
omission.
(e) Notwithstanding any other provision of this Section, the
liability of any holder of Registrable Securities for indemnification or
contribution under this Section shall be individual to each holder and shall not
exceed an amount equal to the number of shares sold by such holder of
Registrable Securities multiplied by the net amount per share which he receives
in such underwritten offering.
(f) The indemnification and contribution provided for under this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and shall survive the transfer of
securities.
6. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements; provided
that no holder of Registrable Securities included in any underwritten
registration shall be required to make any representations or warranties to the
Company or the underwriters other than representations and warranties directly
regarding such holder and such holder's intended method of distribution.
7. Definitions.
"NASD" means the National Association of Securities Dealers.
"Person" means any individual, corporation, partnership, limited
liability company, trust, estate, association, cooperative, government or
governmental entity (or any branch, subdivision or agency thereof) or any other
entity.
"Registrable Securities" means any of the shares of Common Stock
issued to the Investors and any other securities that subsequently may be issued
or issuable with respect to the shares of Common Stock as a result of a stock
split or dividend or any sale, transfer, assignment or other transaction
involving such shares of the Company and any securities into which the shares of
Common Stock may thereafter be changed as a result of merger, consolidation,
recapitalization or other similar transaction. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when they
have been distributed to the public pursuant to a offering registered under the
Securities Act or eligible to be sold to the public pursuant to Rule 144(k)
under the Securities Act (or any such rule then in force) or, if held by an
affiliate of the Company, when all such securities of such person are eligible
for resale pursuant to Rule 144 and could be sold in one transaction in
accordance with the volume limitations contained in Rule 144(e)(1)(i). For
purposes of this Agreement, a Person shall be deemed to be a holder of
Registrable Securities whenever such Person has the right to acquire directly or
indirectly such Registrable Securities (upon conversion or exercise in
connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such right), whether or not
such acquisition has actually been effected.
"Securities Act" means the Securities Act of 1933, as amended.
8. Rule 144. From and after the time the Company's Common Stock is
registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), in order to permit each Investor to sell the
securities of the Company it holds from time to time pursuant to Rule 144
promulgated by the Commission or any successor to such rule or any other rule or
regulation of the Commission that may at any time permit the Investor to sell
its securities to the public without registration ("Resale Rules"), the Company
will:
(a) comply with all rules and regulations of the Commission
applicable in connection with use of the Resale Rules;
(b) make and keep adequate and current public information available,
as those terms are understood and defined in the Resale Rules, at all times;
(c) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act;
(d) furnish annually to the Investor material containing the
information required by Rule 14a-3(b) under the Exchange Act;
(e) furnish to the Investor promptly upon request (i) a written
statement by the Company that it has complied with the reporting requirements of
the Resale Rules, the Securities Act and the Exchange Act, (ii) a copy of the
most recent annual or quarterly report of the Company and any other reports and
documents so filed by the Company, and (iii) such other information as may be
reasonably requested in availing the Investor of any rule or regulation of the
Commission which permits the selling of any shares of Common Stock holding the
Investor without registration; and
(f) take any action (including cooperating with the Investor to
cause the transfer agent to remove any restrictive legend on certificates
evidencing the shares of Common Stock held by the Investor) as shall be
reasonably requested by the Investor or which shall otherwise facilitate the
sale of shares of Common Stock held by the Investor from time to time by the
Investor pursuant to the Resale Rules.
9. Additional Grants of Registration Rights. The Company shall not
grant registration rights to any other Person which would be superior to, or
would limit in any way the registration rights granted hereunder.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not hereafter
enter into any agreement with respect to its securities which is inconsistent
with or violates the rights granted to the holders of Registrable Securities in
this Agreement.
(b) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the Company and holders of a majority of the Registrable
Securities.
(c) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities. A person is
deemed to be a holder of Registrable Securities whenever such person is the
registered holder of Registrable Securities. Upon the transfer of any
Registrable Securities, the transferring holder of Registrable Securities shall
cause the transferee to execute and deliver to the Company a counterpart of this
Agreement.
(d) 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 prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(e) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together shall constitute
one and the same Agreement.
(f) Descriptive Heading. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(g) Governing Law. The corporate law of Delaware shall govern all
issues and questions concerning the relative rights of the Company and its
shareholders. All issues and questions concerning the construction, validity,
interpretation and enforcement of this Agreement shall be governed by, and
construed in accordance with, the laws of Delaware, without giving effect to any
choice of law or conflict of law rules or provisions (whether of Delaware or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than Delaware.
(h) Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be received when personally delivered or sent by
overnight courier or registered mail, return receipt requested, addressed (i) if
to the Company, at [6 Xxxxxxxxx Xxxxx, Xxxxxxxx, XX 00000], Attention:
President; and (ii) if to a Holder, at the address set forth under its name on
the signature page hereto, or at such other address as each party furnishes by
notice given in accordance with this Section 8.
(i) Consent to Jurisdiction: Service of Process. The Company and
Investors hereby irrevocably consent to the jurisdiction of the state courts of
the State of Delaware, as appropriate and of the United States District Court
for Delaware in any and all actions and proceedings in connection with this
Agreement, and irrevocably consent, in addition to any methods of service of
process permissible under applicable law, to service of process by certified
mail, return receipt requested to the address of Company and Investors as set
forth herein. Nothing in this Section shall affect or limit the right of any
Investor to serve legal process in any other manner permitted by law. Company
and Investors agree that in any action or proceeding brought by them in
connection with this Agreement or the transactions contemplated hereby,
exclusive jurisdiction shall be in state courts of the State of Delaware, as
appropriate and the United States District Court for Delaware.
INVESTORS:
/s/Xxxxxxx X. Xxxx /s/X. Xxxx, power-of-attorney for Xxxxxxx Xxxxxxxxx
-------------------- --------------------------------------------------------
XXXXXXX X. XXXX XXXXXXX XXXXXXXXX, by Xxxxxxx Xxxx as power-of-attorney.
/s/Xxxxxxx X. Xxxx, power-of-attorney for FOG
Investments Limited /s/X. Xxxx, power-of-attorney for Henri B.G. Sijthoff.
---------------------------------------------- --------------------------------------------------------
FOG INVESTMENTS LIMITED HENRI B.G. SIJTHOFF, by Xxxxxxx Xxxx as
By: Xxxxxxx X. Xxxx as power-of-attorney. power-of-attorney.
/s/Xxxxxx X. van Wijngaarden, power-of-attorney for
/s/Xxxx Xxxxxxx /s/X. Xxxx, power-of-attorney for Jouke V.J.P. Brada.
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XXXX XXXXXXX, by Xxxxxx X. van JOUKE V.J.P. BRADA, by Xxxxxxx Xxxx as power-of-attorney.
Wijngaarden as power-of-attorney.
/s/Xxxxxx X. van Wijngaarden, power-of-attorney for /s/Xxxxxx X. van Wijngaarden, power-of-attorney for
Femia E. van Wulfften Palthe Xxxxxxx xxx Xxxxx
---------------------------------------------- --------------------------------------------------------
FEMIA E. VAN WULFFTEN PALTHE, by Xxxxxx XXXXXXX XXX XXXXX, by Xxxxxx X. van Wijngaarden as
L. van Wijngaarden as power-of-attorney. power-of-attorney.
/s/Xxxxxx X. van Wijngaarden, power-of-attorney for /s/Xxxxxx X. van Wijngaarden, power-of-attorney for
Xxxxxx X.X.X. Aarts Xxxxx xxx Xxxxx
---------------------------------------------- --------------------------------------------------------
XXXXXX X.X.X. AARTS, by Xxxxxx X. van XXXXX X. XXX XXXXX, by Xxxxxx X. van Wijngaarden as
Wijngaarden as power-of-attorney. power-of-attorney.
JOLEC TRADING LIMITED VIEWMONT HOLDINGS LIMITED
By: Intertrust (Curacao) N.V. By: Intertrust (Curacao) N.V.
/s/ Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx
---------------------------------------------- ----------------------------------------------
Xxxxxxx Xxxxx, Managing Director Xxxxxxx Xxxxx, Managing Director
XXXXXXXX'X SECURITIES LIMITED GORILLA VENTURES N.V.
By: Intertrust (Curacao) N.V. By: Intertrust (Curacao) N.V.
/s/ Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx
---------------------------------------------- ----------------------------------------------
Xxxxxxx Xxxxx, Managing Director Xxxxxxx Xxxxx, Managing Director
MOANA LAKE FINANCE CORP. XXXXXXX CAPITAL LIMITED
By: Intertrust (Curacao) N.V. By: Intertrust (Curacao) N.V.
/s/ Xxxxxxx Xxxxx /s/ Xxxxxxx Xxxxx
---------------------------------------------- ----------------------------------------------
Xxxxxxx Xxxxx, Managing Director Xxxxxxx Xxxxx, Managing Director
HACKEN INVESTMENTS LIMITED HEYDAEL B.V.
/s/ Xxxxx X. Xxxxxx, power-of-attorney /s/ Xxxxxxx Xxxx
---------------------------------------------- ----------------------------------------------
By: Xxxxx X. Xxxxxx as power-of-attorney By: Xxxxxxx Xxxx, Director
FOCUSTECH INVESTMENTS, INC. BIOTEL, INC.
By /s/ FocusTech Investments, Inc. By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------- ----------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: President
/s/Ruud A.M. Pruijm /s/Jan X.X. Xxxxxxxx
---------------------------------------------- ----------------------------------------------
RUUD A.M. PRUIJM JAN X.X. XXXXXXXX
/s/Xxxxx X. Xxxxxxxx /s/Jergen Maijers
---------------------------------------------- ----------------------------------------------
XXXXX X. XXXXXXXX XXXXXX MAIJERS
/s/X. Xxxxxxxxx /s/X. Xxxxxx
---------------------------------------------- ----------------------------------------------
X. XXXXXXXXX X. XXXXXX
/s/Xxxxxxxxxx Xxxxxxx /s/Xxxxxxxxxxx Xxxxxxx
---------------------------------------------- ----------------------------------------------
XXXXXXXXXX XXXXXXX XXXXXXXXXXX XXXXXXX
THAMES ASSET MANAGEMENT LTD.
/s/Xxxxxx X. Xxxxxxxx By: /s/Xxxxxxx X. Xxxxxx
---------------------------------------------- ----------------------------------------------
S.I.J. XXXXXXXX Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
ADVA INTERNATIONAL, INC.
By: /s/Xxxxxx X. Down
-----------------------------------------
Title: President
