Exhibit 4.1
SHAREHOLDER RIGHTS AND REGISTRATION RIGHTS AGREEMENT
This Shareholder Rights and Registration Rights Agreement (this
"Agreement") is made as of the 11 day of October 1999, by and between AccuFacts
Pre-Employment Screening, Inc., a Delaware corporation ("AccuFacts") and Xxxxxxx
X. Xxxxxx ("Seller").
WHEREAS, AccuFacts, Xxxxxx-AccuFacts Pre-Employment Screening, Inc., a
Delaware corporation which is wholly-owned by AccuFacts ("Xxxxxx-AccuFacts"),
Xxxxxx, Inc., a Florida corporation wholly-owned by Seller ("Xxxxxx") and Seller
have entered into a Plan and Agreement of Merger and a Supplemental Agreement,
each dated as of the date hereof (collectively, the "Merger Agreement")
providing for the merger of Xxxxxx with and into Xxxxxx-AccuFacts (the
"Merger");
WHEREAS, pursuant to the Merger Agreement, AccuFacts has delivered to
Seller on the Merger Date in consideration of the Merger and certain
non-competition agreements as set forth in the Merger Agreement 177,441 of its
unregistered shares (the "Closing Securities") of common stock, $.01 par value
(the "AccuFacts Common Stock"); and
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Merger Agreement that AccuFacts grant to Seller the
registration rights and other rights set forth herein with respect to the
Closing Securities and that the transfer of the Closing Securities be subject to
the understanding and limitations set forth herein.
The foregoing recitals shall be included in, and shall be made a part of,
this Agreement.
Capitalized terms used herein and not defined shall have the meanings
assigned to such terms in the Merger Agreement.
NOW, THEREFORE, the parties hereto do hereby agree as follows:
1. Certain Definitions. The following terms shall have the following
respective meanings:
"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,
or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be
in effect.
"Market Price" with respect to any date, means the closing price per
share of the AccuFacts Common Stock for the trading day immediately
preceding such date. The closing price for each such day shall be the last
sale price regular way or, in case no such sale takes place on such day,
the average of the closing bid and asked prices regular way, in either case
on the principal securities exchange on which the shares of AccuFacts
Common Stock are listed or admitted to trading. If such price is not
available, then "Market Price" shall be equal to the fair market value of
the AccuFacts Common Stock as determined in good faith by the Board of
Directors of AccuFacts.
"Person" shall mean an individual, partnership, association, joint
venture, corporation, trust or unincorporated organization, a government or
any department, agency or political subdivision thereof or other entity.
"Registration Statement" means a registration statement filed by
AccuFacts with the Commission for a public offering and sale of securities
of AccuFacts (other than a registration statement on Form S-8 or Form S-4,
or their successors, or any other form for a limited purpose, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
"Registration Expenses" means the expenses described in Subsection
3.4.
"Registrable Shares" means (i) the Closing Securities, (ii) any other
equity securities of AccuFacts issued in respect of any of the Closing
Securities (because of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events) and (iii) any and all equity
securities of AccuFacts or any successor into which such shares may be
converted; provided, however, that shares of AccuFacts Common Stock that
are Registrable Shares shall cease to be Registrable Shares (w) when a
Registration Statement filed pursuant to the Securities Act covering such
shares of AccuFacts Common Stock has been declared effective and they have
been disposed of pursuant to such effective Registration Statement, (x)
upon any sale pursuant to Section 4(1) of the Securities Act or Rule 144 or
Rule 144A under the Securities Act, (y) at such times as they are eligible
for sale pursuant to Rule 144 under the Securities Act without limitation
as to the amount of securities to be sold.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Shares" shall mean the Closing Securities.
"Stockholder" shall mean any stockholder of AccuFacts Common Stock.
-2-
2. Restrictions on Transfer
2.1 Sale or Transfer of Shares; Legend.
(a) The Shares shall not be sold or transferred other than as provided
in Section 3 hereof or pursuant to an opinion of legal counsel satisfactory
to AccuFacts, to the effect that such proposed sale is exempt from the
registration requirements of the Securities Act.
(b) Each certificate representing the Shares shall bear a legend
consistent with the provisions of subsection (a) of this Section 2.1.
2.2 Rights. The registration and other rights granted herein to Seller are
not transferrable and may not be assigned by Seller.
3. Tag-Along Procedures.
3.1 Tag-Along Right. A Stockholder (a "Section 3.1 Stockholder") shall not,
directly or indirectly, sell, assign, pledge, encumber, hypothecate, gift,
bequest or otherwise transfer, whether for value or no value and whether
voluntary or involuntary (including, without limitation, by operation of law or
by judgment, levy, attachment, garnishment, bankruptcy or other legal or
equitable proceedings) (in each case, a "Transfer") to any Person or group of
Persons AccuFacts Common Stock representing in the aggregate the lesser of (i)
51% of the AccuFacts Common Stock held by such Stockholder (which amount
constitutes not less than 5% of the issued and outstanding and fully diluted
AccuFacts Common Stock) or (ii) individually or collectively with any other
holders of AccuFacts Common Stock (whether or not parties to this Agreement) 20%
or more of the issued and outstanding and fully diluted AccuFacts Common Stock
unless the terms and conditions of such Transfer shall include an offer to the
other Stockholders, at the same price and on the same terms and conditions as
such selling Stockholder has agreed to sell its Securities, to include in the
Transfer to the third party Transferee an amount of AccuFacts Common Stock
determined in accordance with this Section.
3.2 Obligation of Transferee to Purchase. The transferee of the Section 3.1
Stockholder (the "Transferee") shall purchase from the other Stockholders which
deliver a Tag-Along Notice pursuant to Section 3.4 (such Stockholders are
referred to as "Tag-Along Stockholders") the number of Shares owned equaling the
number derived by multiplying the total number of Shares to be purchased by the
Transferee by a fraction, the numerator of which is the total number of Shares
owned by such Tag-Along Stockholders that such Tag-Along Stockholders desire to
require the Transferee to purchase and the denominator of which is the total
number of Shares owned by all of the Stockholders before giving effect to the
proposed Transfer (the "Tag-Along Formula").
-3-
3.3 Notice. In the event the Section 3.1 Stockholder proposes to Transfer
any Shares in a transaction subject to this Section 3.1, it shall notify, or
cause to be notified, each other Stockholder of each such proposed Transfer.
Such notice shall set forth: (i) the name of the Transferee and the number and
designation of Shares proposed to be transferred, (ii) the proposed amount and
form of consideration and terms and conditions of payment offered by the
Transferee (the "Transferee Terms"), and (iii) that the Transferee has been
informed of the "tag-along right" provided for in this Section 3.1 and has
agreed to purchase Securities from the Tag-Along Stockholders in accordance with
the terms hereof.
3.4 Exercise. The tag-along right may be exercised by the Tag-Along
Stockholders by delivery of a written notice to the Section 3.1 Stockholder (the
"Tag-Along Notice") within 10 calendar days following receipt of the notice
specified in the preceding subsection. The Tag-Along Notice shall state the
number and designation of Shares that such Tag-Along Stockholder wishes to
include in such Transfer to the Transferee, which number may exceed the total
number of shares proposed to be transferred but which may not exceed the total
number of shares owned by such Tag-Along Stockholder. Upon the giving of a
Tag-Along Notice, such Tag-Along Stockholder shall be entitled and obligated to
sell the number and designation of Shares set forth in the Tag-Along Notice,
subject to adjustment pursuant to the Tag-Along Formula, to the Transferee on
the Transferee Terms; provided, however, that the Section 3.1 Stockholder shall
not consummate the sale of any shares offered by it if the Transferee does not
purchase all shares which all of the Stockholders are entitled and desire to
sell pursuant hereto. After expiration of the 10 calendar day period referred to
above, if the provisions of this Section have been complied with in all
respects, the Section 3.1 Stockholder shall have the right for a 60-day period
to Transfer the Shares to the Transferee on the Transferee Terms without further
notice to any other party, but after such 60-day period, no such Transfer may be
made (i) for an additional 60-day period and (ii) without again giving notice to
the other Stockholders of the proposed transfer and complying with the
requirements of this Section 3.
3.5 Anything to the contrary contained herein notwithstanding, the Section
3.1 Stockholder agrees to use its reasonable efforts to seek to ensure that the
applicable Transferee Terms provide for several, and not joint, liability, with
respect to the indemnification and comparable obligations contained within such
Transferee Terms.
3.6 Closing. At the closing of the purchase of the Shares subject to this
Section 3, the Stockholders who are making the Transfer shall deliver
certificates evidencing such shares, duly endorsed, or accompanied by written
instruments of transfer in form reasonably satisfactory to the transferee, free
and clear of any adverse claim against payment of the purchase price therefor.
4. Registration Rights.
-4-
4.1 Incidental Registration.
(a) At any time following the Closing Date, when AccuFacts proposes to
file a Registration Statement, it will, prior to such filing, give written
notice to Seller of its intention to do so and, upon the written request of
Seller given within five (5) days after AccuFacts provides such notice,
AccuFacts shall, subject to subsection 4.1(b) hereof, use its best efforts
to cause all Registrable Shares that AccuFacts has been requested by Seller
to register to be registered under the Securities Act; provided, however,
that AccuFacts shall have the right in its sole and absolute discretion to
elect not to file, postpone or withdraw any registration effected pursuant
to this Section 4.1 without obligation to Seller.
(b) In connection with any offering under this Section 4.1 involving
an underwriting, AccuFacts shall not be required to include any Registrable
Shares in such offering unless Seller accepts the terms of the underwriting
as agreed upon between AccuFacts and the underwriters selected by it and
execute an underwriting agreement reflecting such terms (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 AccuFacts. If in the opinion of the managing
underwriter the registration of the number of Registrable Shares that the
Seller has requested to be registered would adversely affect such public
offering, then AccuFacts shall be required to include in the underwriting
only that number of Registrable Shares, in addition to all of the shares to
be sold by AccuFacts, that the managing underwriter believes may be sold
without causing such adverse effect. The shares to be so included shall be,
first, the shares which have an unfulfilled right to registration, and,
second, shares which have piggy-back rights. If less than all shares in
either class are to be registered by reason of the managing underwriter's
cutback, shares within such class shall be allowed to participate in such
underwriting on a pro rata basis among participating shareholders.
4.2 Registration Procedures. If and whenever AccuFacts has filed a
Registration Statement under the Securities Act and if Registrable Shares are
covered thereby, AccuFacts shall:
(a) notify the Seller at any time when a prospectus relating to
Registrable Shares covered by the Registration Statement is effective, of
the happening of any event as a result of which the prospectus included in
the 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 light
of the circumstances then existing. AccuFacts shall use its reasonable
efforts promptly to amend or supplement the Registration Statement to
correct any such untrue statement or omission;
(b) notify the Seller of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose. AccuFacts will make every
reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest
possible time;
-5-
(c) if the AccuFacts Common Stock is then listed on a national
securities exchange, use its reasonable efforts to cause the Registrable
Shares to be listed on such exchange if the listing of such Registrable
Shares is then permitted under the rules of such exchange, or if the
AccuFacts Common Stock is not then listed on a national securities
exchange, use its reasonable efforts to facilitate the quotation of the
Registrable Shares on NASDAQ, and use its reasonable efforts to cause
continued listing of the Registrable Shares on a national securities
exchange or quotation of the Registrable Shares on NASDAQ, so long as the
registration statement is in effect under the Securities Act and the
AccuFacts Common Stock is so listed or quoted;
(d) provide a transfer agent and registrar, which may be a single
entity, for the Registrable Shares not later than the effective date of the
Registration Statement; and
(e) if AccuFacts has delivered preliminary or final prospectuses to
Seller and after having done so the prospectus is amended to comply with
the provisions of the Securities Act or is amended or supplemented pursuant
to Section 4.2(b), AccuFacts shall promptly notify Seller. In that case,
Seller shall immediately cease making offers of Registrable Shares and, if
requested, return all prospectuses to AccuFacts. AccuFacts shall promptly
provide Seller with revised prospectuses and, following receipt of the
revised prospectuses, Seller shall be free to resume making offers of the
Registrable Shares.
4.3 Certain Covenants of Seller. Upon notification by AccuFacts of a state
of facts described in paragraph 4.2(a) or of a stop order referenced in
paragraph 4.2(b), the Seller shall cease making sales of Registrable Shares
unless and until AccuFacts shall notify them that the state of facts has been
corrected and/or the stop order has been lifted.
4.4 Allocation of Expenses. AccuFacts will pay all Registration Expenses of
all registrations under this Agreement. For purposes of this Section 4.4, the
term "Registration Expenses" shall mean all expenses incurred by AccuFacts in
complying with Section 4 hereof, including, without limitation, all registration
and filing fees, exchange listing fees, printing expenses, fees and expenses of
counsel for AccuFacts, reasonable state Blue Sky fees and expenses and the
expense of any special audits incident to or required by any such registration,
but excluding underwriting discounts and selling commissions, non-accountable or
accountable expense allowances, other brokerage fees and transfer taxes relating
to the Registrable Shares, and fees and expenses of counsel to Seller. Seller
shall pay any underwriting discounts and selling commissions, non-accountable or
accountable expense allowances, other brokerage fees and transfer taxes relating
to the Registrable Shares, and any fees and expenses of any counsel to Seller.
4.5 Indemnification and Contribution. In the event of any registration of
any of the Registrable Shares under the Securities Act pursuant to this
Agreement, AccuFacts will indemnify and hold harmless Seller, each underwriter
of such Registrable Shares, and each other person, if any, who controls Seller
or underwriter within the meaning of the Securities Act or the Exchange Act
against any losses, claims, damages, or liabilities, joint or several, to which
Seller, such underwriter, or controlling person may become subject under the
Securities Act, the Exchange
-6-
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 any material
fact contained in any Registration Statement under which such Registrable Shares
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, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
AccuFacts will reimburse Seller, such underwriter, and each such controlling
person for its reasonable costs and expenses in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that AccuFacts will not be liable in any such case (i) to the extent that any
such loss, claim, damage, or liability arises out of or is based upon any untrue
statement or omission made in such Registration Statement, preliminary
prospectus, or final prospectus, or any such amendment or supplement, in
reliance upon and in conformity with information furnished to AccuFacts, in
writing, by or on behalf of Seller, such underwriter, or controlling person
specifically for use in the preparation thereof and (ii) to the extent that any
such loss, claim, damage, or liability does not arise out of or is not based
upon any untrue statement or omission made in such Registration Statement, if
any Indemnified Person failed to give or send a prospectus at or prior to
written confirmation of sale.
In the event of any registration of any of the Registrable Shares under the
Securities Act pursuant to this Agreement, Seller will indemnify and hold
harmless AccuFacts, its directors and officers and each underwriter (if any) and
each person, if any, who controls AccuFacts or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages, or liabilities, to which AccuFacts, such directors and officers,
underwriter, or controlling person may become subject under the Securities Act,
Exchange Act, state securities or Blue Sky laws, or otherwise, to the extent and
only to the extent that 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 Shares 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 Seller furnished in
writing to AccuFacts by or on behalf of Seller specifically for use in
connection with the preparation of such Registration Statement, prospectus,
amendment, or supplement.
Each party entitled to indemnification under this Section 4.5 (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, 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); and, provided, further, that the failure of any Indemnified Party
-7-
to give notice as provided herein, which failure is not prejudicial to the
defense of such claim or litigation, shall not relieve the Indemnifying Party of
its obligations under this Section 4.5. The Indemnified Party may participate in
such defense at such party's expense; provided, however, that the Indemnifying
Party shall pay the fees and expenses of no more than one counsel to the
Indemnified Party approved by the Indemnifying Party 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 of 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 consent of the Indemnifying
Party, which consent shall be deemed to be given if not denied within five (5)
days of the Indemnified Party's submission of a request for such consent. Any
such notice shall refer specifically to this Section 4.5 of this Agreement.
In order to provide for just and equitable contribution to joint liability
under the Securities Act in any case in which either (i) Seller or any
controlling person of Seller, makes a claim for indemnification pursuant to this
Section 4.5 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 4.5 provides
for indemnification in such case, or (ii) contribution under the Securities Act
may be required on the part of Seller or any such controlling person in
circumstances for which indemnification is provided under this Section 4.5;
then, in each such case, AccuFacts and Seller 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 Seller is responsible for
the portion represented by the percentage that the public offering price of its
Registrable Shares offered by the Registration Statement bears to the public
offering price of all securities offered by such Registration Statement, and
AccuFacts is responsible for the remaining portion; provided, however, that, in
any such case, 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.
4.6 Indemnification with Respect to Underwritten Offering. In the event
that Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering, AccuFacts agrees to enter into an underwriting agreement
containing customary representations and warranties with respect to the business
and operations of an issuer of the securities being registered and customary
covenants and agreements to be performed by such issuer, including without
limitation customary provisions with respect to indemnification by AccuFacts of
the underwriters of such offering.
4.7 Information by Seller. Seller shall furnish to AccuFacts such
information regarding Seller and the distribution proposed by Seller as
AccuFacts may reasonably
-8-
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 4. AccuFacts shall not
be obligated to register any Registrable Shares pursuant to this Section 4
unless AccuFacts has first received the foregoing information with respect to
Seller.
4.8 "Lock-Up" Agreement. To the extent requested by AccuFacts in the event
of a non-underwritten offering or to the extent requested by an underwriter in
the event of any underwritten offering, Seller will defer the sale or
distribution of all securities of AccuFacts (other than Registrable Shares
included in any such offering) for any period of time reasonably requested by
AccuFacts or underwriter, as applicable, and shall execute "lock-up" agreements
to such effect; provided, however, that the lock-up for any Registrable Shares
included in a registration statement pursuant to Section 4.1 hereof shall not
exceed 180 days and the lock-up for any other Registrable Shares shall not
exceed 90 days; and provided further that Seller shall not be subject to a
lock-up greater in duration or in relative percentages of shares owned than are
imposed upon the executive officers or directors of AccuFacts or other
significant shareholders of Seller who are participants in such offering.
4.9 Reports Under Securities Exchange Act of 1934. With a view to making
available to Seller the benefits of Rule 144 and any other rule or regulation of
the Commission that may at any time permit Seller to sell securities of
AccuFacts to the public without registration, AccuFacts agrees to use
commercially reasonable efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144;
(b) File with the Commission in a timely manner all reports and other
documents required of AccuFacts under the Securities Act and the Exchange
Act; and
(c) Furnish to Seller upon request a written statement by AccuFacts as
to its compliance with the reporting requirements of Rule 144, and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of AccuFacts, and such other reports and documents of
AccuFacts as Seller may reasonably request to avail himself of any similar
rule or regulation of the SEC allowing him to sell any such securities
without registration and otherwise take such action as Seller may
reasonably request in order to avail himself of any such rule or regulation
of the SEC.
4.10 Assignments of Registration Rights. There shall be no assignment by
Seller at any time of his right to have AccuFacts register Registrable Shares
pursuant to this Agreement without the prior written consent of AccuFacts.
Notwithstanding the foregoing, without the consent of the Company, Seller may
assign his rights hereunder to any transferees or assignees of Registrable
Shares that are immediate family members of Seller or trust(s) established by
Seller for the benefit of himself and/or his family for estate planning
purposes; provided that (i) notwithstanding such assignment, only Seller shall
have the power to exercise the registration rights
-9-
so assigned, and no assignee shall have the power to exercise any such rights
except through Seller; (ii) AccuFacts is within a reasonable time after such
transfer, furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned, (iii) such assignment is in accordance
with and permitted by all other agreements between AccuFacts and the Seller, and
(iv) such assignments shall be effective only if immediately following such
transfer the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act. If any Registrable Shares are
included in a Registration Statement, any permitted transferee holding such
Registrable Shares shall not sell such Shares pursuant to the Registration
Statement until such transferee has received written notice from AccuFacts that
such Registration Statement has been appropriately supplemented to permit such
sale.
5. Miscellaneous.
5.1 Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of AccuFacts and the holders of a majority of the
Registrable Shares then outstanding. Any amendment or waiver effected in
accordance with this paragraphs shall be binding upon each holder of any
Registrable Shares then outstanding, each future holder of all such Registrable
Shares, and AccuFacts.
5.2 Entire Agreement; Modification. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof,
supersedes all existing agreements among them concerning such subject matter and
may be modified only by a written instrument duly executed by each party hereto.
5.3 Notices. Any notice given pursuant to this Agreement to any party
hereto shall be deemed to have been duly requested, or by overnight mail, or
when hand delivered as follows:
If to Seller:
[insert home address]
Attention: Xxxxxxx X. Xxxxxx
Telephone No.:
Facsimile No.:
-10-
with copies to:
Dean, Mead, Egerton, Bloodworth, Capouano & Xxxxxxx
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.:
If to AccuFacts:
AccuFacts Pre-Employment Screening, Inc.
0 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Frankfurt, Garbus, Xxxxx & Xxxx, P.C.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
or at such other address as either such party shall from time to time designate
by written notice, in the manner provided herein, to the other party hereto. All
references to days in this Agreement shall be deemed to refer to calendar days,
unless otherwise specified.
5.4 Waiver. Any waiver must be in writing, and any waiver by any party of a
breach of any provision of this Agreement shall not operate as or be construed
to be a waiver of any other breach of that provision or of any breach of any
other provision of this Agreement. The failure of a party to insist upon strict
adherence to any term of this Agreement on one or more occasions will not be
considered a waiver or deprive that party of the right thereafter to insist upon
strict adherence to that term or any other term of this Agreement.
5.5 Separability. If any provision of this Agreement is invalid, illegal or
unenforceable, such provision shall be ineffective to the extent, but only to
the extent of, such invalidity, illegality or unenforceability, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement, unless such a construction would be unreasonable.
-11-
5.6 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.7 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware, without giving effect to
conflict of laws.
-12-
IN WITNESS WHEREOF, the parties hereto have executed this Shareholder
Rights and Registration Rights Agreement as of the day and year first above
written.
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Xxxxxxx X. Xxxxxx
ACCUFACTS PRE-EMPLOYMENT
SCREENING, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: President
-13-
