REGISTRATION UNDERTAKING
This Registration Undertaking (this "Agreement") is made and
entered into as of September 18, 1996 by American Film Technologies, Inc., a
Delaware corporation (the "Company") for the benefit of X. Xxxxxx Xxxx (the
"Holder") pursuant to Section 2 of that certain Stock Purchase Agreement dated
as of October 21, 1996 between the Company and the Holder (the "Purchase
Agreement").
NOW, THEREFORE, in consideration of the mutual
representations, covenants and agreements contained herein, the Company hereto
agrees and undertakes as follows:
1. Piggyback Registration.
(a) Registrable Securities: The term "Registrable
Securities" means each of the following:
(i) the Shares as such term is defined in the Purchase
Agreement; and
(ii) any other shares or securities or distributions
resulting from a reverse split, stock split, stock dividend, reclassification of
the capital stock of the Company, consolidation or reorganization of the
Company, and any shares or other securities of the Company or of any successor
company which the Holder may receive by virtue of their ownership of the Shares;
provided, however, that any of the securities described in the foregoing clauses
(i) and (ii) shall be treated as Registrable Securities only if and so long as
(x) they are held by the Holder, family members of the Holder or a personal or
family trust controlled by the Holder, (y) have not been sold or disposed of,
pursuant to a registration statement covering such Registrable Securities which
has been declared effective pursuant to the Securities Act of 1933, as amended
(the "Act") or if such securities have not been sold or disposed of such
registration statement including the Registrable Securities remains effective;
or (z) have not been sold or disposed of to the public pursuant to Rule 144 (or
any similar provision then in force) promulgated under the Act.
(b) Piggyback Registration Rights. Subject to the terms and
conditions contained in this Agreement, during the Piggyback Period, as
hereinafter defined, the Holder shall be entitled to include in any Piggyback
Registration Statement, as hereinafter defined, all Registrable Securities .
(c) Piggyback Period. Except as otherwise provided herein,
the Holder shall be entitled to include all or any portion of the Registrable
Securities held by Holder in a Piggyback Registration Statement, as such term is
hereinafter defined, during the "Piggyback Period" defined as the period
commencing as of the date hereof and ending on the first to occur of: (i)
October 18, 2006; (ii) all of the Registrable Securities which Holder desires to
sell can be sold in one sale pursuant to Rule 144(k) or any successor rule of
similar provision of the Act; OR (iii) the sale of the Registrable Securities
have been included in one or two Piggyback Registration Statements (as
hereinafter defined) which has been declared effective by the Securities and
Exchange Commission (the "SEC") and if the Registrable Securities are included
therein, the effectiveness thereof is not terminated prior to the contemplated
distribution period ("Effective Piggyback Registration Statement") or if the
sale of all of the Registrable Securities have not be so included in such
Effective Piggyback Registration Statements, such failure is a result of
Holder's failure to timely deliver to the Company a Supplemental Notice with
respect thereto as set forth in Section 1(e) below.
(d) Notice of Registration. In the event that during the
Piggyback Period the Company proposes to file a registration statement to
register under the Act, the sale or other transfer of any class of its
securities of which the Registrable Securities are a part: (i) by the Company
(the "Company Securities"); or (ii) by any other present or future holder of the
Company's securities (the "Shareholder Securities") (the Company Securities and
Shareholder Securities hereinafter collectively referred to as the Registration
Securities), the Company shall deliver to the Holder, at least twenty (20) days
prior to the filing with the Commission of the registration statement covering
such Registration Securities (the "Piggyback Registration Statement"), a written
notice (a "Registration Notice") of its intention so to register such offering
of Registration Securities and the manner in which such Registration Securities
are proposed to be sold.
(e) Supplemental Notice. In the event that a Registration
Notice shall have been delivered, the Holder may elect to include in the
offering covered by the Piggyback Registration Statement all or a portion of the
Registrable Securities by delivering notice to the Company (the "Supplemental
Notice") on or before the tenth (10th) day after delivery of the Registration
Notice specifying the number of shares of Registrable Securities (the "Piggyback
Securities") proposed to be sold or otherwise transferred by the Holder. In the
event that during the Piggyback Period, Holder fails to timely deliver
Supplemental Notices including all Registrable Securities with respect to two
Effective Piggyback Registration Statements then and in such event all Piggyback
Registration Rights of the Holder shall automatically terminate without any
Further action on the party of the Company.
(f) Registration of Supplemental Registration Securities.
Subject to the terms, conditions, restrictions and limitations contained
elsewhere herein, from and after receipt of a Supplemental Notice, the Company
shall use its best efforts to cause the Piggyback Securities to be registered
under the Act pursuant to the Piggyback Registration Statement, subject to the
sale or other transfer thereof prior to the effectiveness of the Piggyback
Registration Statement, and to effect and to comply with all qualifications,
compliances and requirements necessary to permit the sale or other transfer of
the Piggyback Securities pursuant to the Piggyback Registration Statement,
including, without limitation, qualifications under the applicable blue sky or
other state securities laws.
(g) Priorities.
(i) Underwritten Offerings by the Company. If, in the
case of delivery of a Supplemental Notice relating to an underwritten offering
of securities proposed to be made by the Company, the managing underwriter shall
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make a determination, in its sole discretion, in a writing delivered to the
Company and the Holder that inclusion of some or all of the Piggyback Securities
together with the Registration Securities, which are to be included in such
Piggyback Registration Statement would have an adverse effect on the proposed
distribution of the Company Securities ("Adverse Distribution Effect"), then the
Company shall, upon written notice to the Holder and to all holders of
Shareholder Securities included in such Piggyback Registration Statement only
the number of securities other than Company Securities which, in the sole
discretion of the managing underwriter, can be sold without any such Adverse
Distribution Effect, selected from the Holder and the holders of Shareholder
Securities seeking to exercise piggyback registration rights, on a pro rata
basis in proportion to the number of securities sought to be included in such
Piggyback Registration Statement.
(ii) Underwritten Offerings of Shareholder Securities.
If, in the case of delivery of a Supplemental Notice by the Holder relating to
an underwritten offering of Shareholder Securities in connection with a demand
registration right by such holders, where the managing underwriter shall make a
determination, in its sole discretion, in a writing delivered to the Company and
the Holder and holders of Shareholder Securities included in such Piggyback
Registration Statement that inclusion of some or all of the Registrable
Securities would have an Adverse Distribution Effect on the proposed sale of the
Shareholder Registration Securities then the Company shall, upon written notice
to the Holder and holders of such Shareholder Securities, include in such
registration only the number of Securities which, in the sole discretion of the
managing underwriter, can be sold without an Adverse Distribution Effect on the
proposed sale of the Shareholder Securities covered by the Demand Registration
Right, selected from the Holder and the holders of Shareholder Securities
seeking to exercise piggyback registration rights, on a pro rata basis in
proportion to the number of securities sought to be included in such Piggyback
Registration Statement.
(iii) Non-Underwritten Offerings. The Holder shall have
the right to include all Registrable Securities in a Piggyback Registration
Statements of non-underwritten offerings of securities of the Company.
(h) Underwriters. In the case of Piggyback Registration
Statements, the underwriter designated by the initiating party shall serve as
the managing underwriter for the entire offering. Holder shall be entitled to
utilize any other underwriter in connection with the sale of its securities
unless the managing underwriter reasonably determines participation by such
underwriter in the offering would materially delay or otherwise be materially
adverse to the transaction.
(i) Exceptions. The provisions of this Section shall not
apply to (i) any registration statement on Form S-8 or Form S-4, or any
successor form, or (ii) any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation.
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2. Restrictions on Public Sale by the Holder. Notwithstanding
anything contained herein to the contrary, if the Holder has received a
Registration Notice during the Piggyback Period, for so long as the Holder holds
one percent (1%) or more, on a fully diluted basis of such Registrable
Securities, the Holder agrees not to effect any public sale or distribution of
any such securities during the fifteen (15) days prior to, and during the 90-day
period beginning on, the effective date of such registration statement (or until
its termination or abandonment, if earlier), except for a sale pursuant to such
registration statement, if permitted.
3. Registration Procedures.
(a) Whenever Piggyback Securities are included in a
Piggyback Registration Statement pursuant to Section 1 of this Agreement,
subject to the terms, conditions, restrictions and limitations contained
elsewhere herein, the Company agrees to:
(i) include in such Piggyback Registration Statement
the sale of the Piggyback Securities in accordance with the intended method of
distribution thereof, and use commercially reasonable efforts to cause such
Piggyback Registration Statement to become effective;
(ii) prepare and file with the SEC such amendments and
post-effective amendments to the Piggyback Registration Statement as may be
necessary to keep the Piggyback Registration Statement effective following the
effective date for such period as may be required to meet the prospectus
delivery and all other requirements under the Act, but not longer than one
hundred thirty-five (135) days; cause the prospectus to be supplemented by any
required prospectus supplement, and, as so supplemented, to be filed pursuant to
Rule 424 under the Act; and comply with the provisions of the Act applicable to
it with respect to the disposition of all securities covered by such
registration statement during the applicable period in accordance with the
intended methods of disposition by sellers thereof set forth in such Piggyback
Registration Statement or supplement to the prospectus;
(iii) furnish to the Holder and the underwriter or
underwriters, if any, without charge, at least one signed copy of the Piggyback
Registration Statement and all post-effective amendments thereto, including
financial statements and schedules, all documents incorporated therein by
reference and all exhibits (including those incorporated by reference) as soon
as such documents become available to the Company, and such number of conformed
copies thereof and such number of copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplements thereto, and any
documents incorporated by reference therein, as the Holder or underwriter may
request, as soon as such documents become available to the Company, in order to
facilitate the disposition of the Piggyback Securities (it being understood that
the Company consents to the use of the prospectus and any amendment or
supplement thereto by the Holder and the underwriter or underwriters, if any, in
connection with the offering and sale of the Piggyback Securities);
(iv) on or prior to the date on which the Piggyback
Registration Statement is declared effective, use commercially reasonable
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efforts to register or qualify the Piggyback Securities under such other
securities or blue sky laws of such jurisdictions as the managing underwriter,
if any, or the Holder, if there is no underwriter, reasonably requests, keep
each such registration or qualification effective during the period such
registration statement is required to be kept effective and do any and all other
acts and things which may be reasonably necessary or advisable to consummate the
disposition in such jurisdictions of the Piggyback Securities; provided that the
Company shall not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
clause (iv), (B) subject itself to general taxation in any such jurisdiction,
(C) consent to general service of process in any such jurisdiction, or (D)
undertake compliance with substantive requirements of the blue sky laws or
regulations of a jurisdiction which are unreasonably burdensome or onerous,
including escrow requirements;
(v) use commercially reasonable efforts to cause the
Piggyback Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to consummate the disposition of the
Piggyback Securities;
(vi) (A) notify the managing underwriter, if any, or
the Holder, if there is no underwriter, (and if requested by any such person,
confirm such advice in writing) when a prospectus relating to the sale of the
Piggyback Securities is required to be delivered under the Act or (B) notify the
managing underwriter, if any, or the Holder, if there is no underwriter (and if
requested by any such person, confirm such advice in writing) of the happening
of any event as a result of which the prospectus included in the Piggyback
Registration Statement relating to the sale of the Piggyback Securities contains
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of the Piggyback Securities, such
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;
(vii) enter into customary agreements (including, in
the case of an underwritten offering, an underwriting agreement in customary
form with customary indemnity provisions) and make such representations and
warranties to the underwriters or the Holder, if there is no underwriter, as in
form and substance and scope are customarily made by issuers to underwriters in
secondary underwritten offerings;
(viii) notify the managing underwriter, if any, or the
Holder, if there is no underwriter, of any stop order or other suspension of
effectiveness of the Piggyback Registration Statement;
(ix) make every commercially reasonable effort to
obtain the withdrawal of any order suspending the effectiveness of the Piggyback
Registration Statement at the earliest possible moment;
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(x) cooperate with the managing underwriter, if any,
and counsel for the underwriters, or the Holder, if there is no underwriter, and
their counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD");
(xii) if requested by the managing underwriter, if any,
or the Holder, if there is no underwriter, promptly incorporate in a prospectus
supplement or post-effective amendment such information relating to the
distribution of securities and the timing thereof as the managing underwriter,
if any, or the Holder, if there is no underwriter, reasonably requests to be
included therein, including, without limitation, the number of Piggyback
Securities being sold by the Holder to the underwriter or underwriters, and the
purchase price being paid therefor by such underwriter or underwriters and any
other terms of the underwritten offering of the Piggyback Securities; 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;
(xiii) as promptly as practicable after filing with the
SEC of any document which is incorporated by reference into a Piggy-back
Registration Statement, deliver a copy of such document to the Holder;
(xiv) cooperate with the managing underwriter, if any,
or the Holder, if there is no underwriter, to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive legends) representing
securities to be sold under the Piggyback Registration Statement and enable such
securities to be in such denominations or amounts, as the case may be, and
registered in such names as the managing underwriter, if any, or the Holder, if
there is no underwriter, may reasonably request;
(xv) notify the Holder, if there is no underwriter, or
the managing underwriter, if any, promptly (and if requested by any such person,
confirm such advice in writing) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Piggyback Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; and
(xvi) cause the Piggyback Securities to be listed on
each securities exchange or quoted on the NASDAQ National Market on which
similar securities issued by the Company are then listed or quoted, and provide
that the applicable listing or quotation requirements are satisfied.
(b) The Holder shall provide to the Company such
information regarding the distribution of the Piggyback Securities and such
other information relating to the Holder and his or her ownership of securities
of the Company as the Company may from time to time reasonably request in
writing.
(c) Notwithstanding anything contained herein to the
contrary, the SEC may issue a "stop order" or refuse to allow the effectiveness
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of any Piggyback Registration Statement or the Company, may in its sole
discretion terminate any Piggyback Registration Statement at any time prior to
or after the effectiveness thereof without liability to the Holder. In such
event, the Company shall promptly notify the Holder thereof.
(d) The Holder agrees, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(b)
hereof, he or she will forthwith discontinue distribution of Piggyback
Securities.
4. Registration Expenses
All expenses incident to the Company's performance of or
compliance with this Agreement including, without limitation (i) all
registration and filing fees, all fees and expenses associated with filings
required to be made with the NASD, as may be required by rules and regulations
of the NASD (other than fees required in excess of fees which would otherwise
pertain in the event that the Holder is a member of the NASD), fees and expenses
of compliance with securities or blue sky laws (including fees and disbursements
of counsel in connection with blue sky qualifications for the Registrable
Securities), rating agency fees, printing expenses (including expenses of
printing certificates for the Registrable Securities in a form eligible for
deposit with the Depository Trust Company and of printing prospectuses if the
printing of prospectuses is reasonably requested by the holders of a Majority
Amount), messenger and delivery expenses, (ii) internal expenses (including,
without limitation, all salaries and expenses of their officers and employees
performing legal or accounting duties), securities acts liability insurance (if
the Company elects to obtain such insurance), (iii) fees and expenses of counsel
for the Company and its independent certified public accountants (including the
expenses of any special audit or "cold comfort" letters required by or incident
to such performance), (iv) fees and expenses of any special experts retained by
the Company in connection with such registration, and (v) fees and expenses of
other persons retained by the Company, (all such expenses being herein called
"Registration Expenses"), shall be paid by the Company, provided that in no
event shall Registration Expenses include (A) any underwriting discounts or
commissions attributable to the sale of the Registrable Securities, (B) any fees
and expenses of counsel for the Holder if such counsel is different than counsel
for the Company or any accountant or other professional engaged by the Holder,
or (C) any direct out-of-pocket expenses of the Holder.
In the event that following effectiveness of a Piggyback
Registration Statement, pursuant to which the Holder is a selling stockholder,
it becomes necessary for the Company to prepare and file a supplemental
prospectus or amended prospectus in order to maintain the effectiveness of such
registration statement, the cost thereof shall be apportioned as set forth
above.
5. Indemnification; Contribution
(a) Indemnification by the Company. To the extent that any
Piggyback Securities are included in a Piggyback Registration Statement pursuant
to the terms hereof, the Company agrees to indemnify, to the full extent
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permitted by law, the Holder, and any agent therefor against all losses, claims,
damages, liabilities and expenses (including reasonable legal fees and expenses)
arising out of or based upon any such untrue statement or alleged untrue
statement of a material fact contained in any registration statement, prospectus
or preliminary prospectus, or any amendment thereof or supplement thereto, or
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of a
prospectus or preliminary prospectus, in light of the circumstances under which
they are made) not misleading, except insofar as such losses, claims, damages
arise out of or are based upon an untrue statement or omission so made in
reliance upon and in conformity with information with respect to the Holder
furnished in writing to the Company by the Holder or its representatives
expressly for use therein or any acts of negligence or misfeasance by Holder.
Nothing contained in Section 5(a) shall waive or effect any rights Holder may
otherwise have under law and equity.
(b) Indemnification by the Holder. In connection with any
Piggyback Registration Statement in which the Holder is a selling stockholder,
the Holder agrees to indemnify, to the extent permitted by law, the Company, its
directors, officers, employees and agents and each person who controls the
Company (within the meaning of applicable federal and state securities laws),
and any investment advisor thereof or agent therefor against any losses, claims,
damages, liabilities and expenses (including reasonable legal fees and expenses)
resulting from (i) any untrue statement or alleged untrue statement of a
material fact contained in the registration statement, prospectus or preliminary
prospectus, or any amendment thereof or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (in the case of a prospectus or
preliminary prospectus, in the light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue
statement or omission is made in reliance upon and in conformity with or failed
to be contained in any information with respect to the Holder furnished in
writing by the Holder or its representatives specifically for inclusion therein;
(ii) Holder's negligence; or (iii) Holder's misfeasance. In no event shall the
liability of the Holder hereunder be greater in amount than the dollar amount of
the proceeds received by the Holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person
entitled to indemnification hereunder agrees to give prompt written notice to
the indemnifying party after the receipt by such person of any written notice of
the commencement of any action, suit or proceeding against such person or
investigation thereof made in writing or for which such person will claim
indemnification or contribution pursuant to this Agreement, but the failure so
to give written notice to the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party hereunder except if and to
the extent such indemnifying party is materially prejudiced by such failure nor
shall it relieve the indemnifying party from any liability which it may have to
any indemnified party other than under this Agreement. The indemnified party
shall permit the indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to such indemnified party; provided, however,
that if the defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably concluded
that there may be defenses available to it that are different from or additional
to those available to the indemnifying party or if the interests of the
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indemnified party may reasonably be deemed to conflict with the interests of the
indemnifying party, the indemnified party shall have the right to select a
separate counsel and to control the defense of such action, with the reasonable
fees and expenses of such separate counsel to be reimbursed by the indemnifying
party. If the indemnifying party is not entitled to, or does not, assume the
defense of a claim, it will not be obligated to pay the fees and expenses of
more than one counsel (and any required local counsel) with respect to such
claim. No indemnified party will be required to 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. The
indemnifying party will not be subject to any liability for any settlement made
without its consent, which shall not be unreasonably withheld.
(d) Conflict with Underwriting Agreement. In the event that
any provision of any indemnification clause in the underwriting agreement to
which the Company and the Holder are parties in connection with the registration
statement or prospectus in question differs from a provision in this Section 5,
such provision in the underwriting agreement shall determine the Holder's rights
visa via the Underwriter in respect thereof. Notwithstanding the foregoing, the
provisions of Section 5 hereof shall control with respect to the rights of the
Company and the Holder with regards to this Agreement or the underwriting
agreement.
6. Participation in Underwritten Registrations
The Holder may not participate in any underwritten
registration hereunder unless it (a) agrees to sell the Piggyback Securities, as
the case may on be, the basis provided in the underwriting arrangements approved
by it, (b) completes and executes all questionnaires, powers of attorneys,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements and (c) agrees to pay all
underwriting discounts and commissions on the Piggyback Securities sold under
such underwriting arrangements.
7. Miscellaneous
(a) Entire Agreement. This Agreement contains the entire
agreement among the parties hereto and except as set forth herein, supersedes
all prior oral or written agreements, promises, representations, commitments or
understandings with respect to the matters provided for herein.
(b) Amendment. This Agreement may be modified or amended
only by a writing duly executed by the parties hereto.
(c) Assignment and Binding Effect. This Agreement and the
rights and obligations of any party hereunder may not be assigned by any party
without the prior written consent of the other party hereto. Notwithstanding the
foregoing, the Company may merge or be acquired by another corporation without
the consent of the Holder so long as the surviving corporation shall agree to be
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bound by the terms of this Agreement. All covenants, agreements, and indemnities
in this Agreement by and on behalf of any of the parties hereto shall be binding
on and inure to the benefit of their respective successors and permitted
assigns.
(d) Waivers. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision
hereof (whether or not similar), nor shall such waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by the party
making the waiver.
(e) Rule 144. The Company shall utilize its reasonable best
efforts to take such action as may be required of it so that sale of Shares by
the Holder may be effected through Rule 144 of the Act or any successor rule
under the Act.
(f) Notices. Unless applicable law requires a different
method of giving notice, any and all notices, demands or other communications
required or desired to be given hereunder by any party shall be in writing.
Assuming that the contents of a notice meet the requirements of the specific
Section of this Agreement which mandates the giving of that notice, a notice
shall be validly given or made to another party if served either personally or
if deposited in the United States mail, certified or registered, postage
prepaid, or if transmitted by telegraph, telecopy or other electronic written
transmission device or if sent by overnight courier service, and if addressed to
the applicable party as set forth below. If such notice, demand or other
communication is served personally, service shall be conclusively deemed given
at the time of such personal service. If such notice, demand or other
communication is given by mail, service shall be conclusively deemed given
seventy-two (72) hours after the deposit thereof in the United States mail. If
such notice, demand or other communication is given by overnight courier, or
electronic transmission, service shall be conclusively given at the time of
confirmation of delivery. The addresses for the parties are as follows:
(i) If to the Holder:
X. Xxxxxx Xxxx
x/x Xxxxxxxxx, Xxxxxxx & Co., Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
(ii) If to the Company:
American Film Technologies, Inc.
Attention: Xxxxxx X. Xxxxxxx
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Jeffer, Mangels, Xxxxxx & Xxxxxxx LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
Any party hereto may change its address for the purpose of
receiving notices, demands and other communications as herein provided, by a
written notice given in the aforesaid manner to the other parties hereto.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to conflicts of law principles.
(h) Jurisdiction. The parties hereto agree to submit to the
exclusive jurisdiction of the Superior Court, Los Angeles County any
controversy, claim or dispute arising out of or relating to this Agreement or
the method and manner of performance thereof or the breach thereof.
(i) Cost of Litigation. Should any party hereto institute
any action or proceeding at law or in equity to enforce any provision of this
Agreement, including an action for declaratory relief, or for damages by reason
of an alleged breach of any provision of this Agreement, or otherwise in
connection with this Agreement, or any provision hereof, the Court shall
apportion the costs and fees thereof (including all attorneys' fees between the
parties based on its determination of the merits of their respective positions
in the proceeding prevailing party shall be entitled to recover from the losing
party or parties reasonable attorneys' fees and costs for services rendered to
the prevailing party in such action or proceeding.
(j) Interpretation. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
(k) Severability. If any provisions of this Agreement shall
under any circumstances be deemed invalid or inoperative, this Agreement shall
be construed with the invalid or inoperative provision deleted and the rights
and obligations of the parties shall be construed and enforced accordingly.
(l) Neuter and Gender. Whenever in this Agreement the
context may require, the neuter shall be deemed to include the feminine or
masculine and vice versa.
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IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed on its behalf on the date first above written.
AMERICAN FILM TECHNOLOGIES, INC.
By
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Xxxxxx X. Xxxxxxx,
Chief Executive Officer
AGREED TO AND ACCEPTED
THIS ____ DAY OF October 1996
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X. Xxxxxx Xxxx
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