Exhibit 9.1
FORM OF STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (the "Agreement"), dated as of October ___,
1998, by and among xxxxxxxx.xxx, inc., a Delaware corporation, Xxxxxxx X.
Xxxx, Dancing Bear Investments, Inc., a Delaware corporation ("DBI" and,
together with Xxxxxxx X. Xxxx, "Dancing Bear"), Xxxx X. Xxxxxxxxx, Xxxxxxx
X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxx.
WHEREAS, Dancing Bear owns warrants (the "Warrants") to purchase
4,046,018 shares of Series E Preferred Stock of the Company, par value
$.001 per share (the "Series E Preferred Stock"), which shares are then
convertible, in the aggregate, into 4,046,018 shares of Common Stock, par
value $.001 per share, of the Company (the "Common Stock").
WHEREAS, upon the consummation of a Qualified Public Offering (as
defined herein), the Warrants will become exercisable directly for
4,046,018 shares of Common Stock in the aggregate; and
WHEREAS, contemporaneously with this Agreement, Dancing Bear has
transferred Warrants exercisable for 200,000, 200,000, 50,000 and 50,000
shares of Series E Preferred Stock to Xxxx X. Xxxxxxxxx, Xxxxxxx X.
Xxxxxxxx, Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxx (collectively referred
to herein as the "Holders"), respectively; and
WHEREAS, the parties hereto wish to provide certain restrictions on
the disposition by the Holders of any Warrants held by them and any shares
of Series E Preferred Stock or Common Stock for which such Warrants may be
exercised (the "Warrant Shares"); and
WHEREAS, the parties wish to provide for certain arrangements with
respect to the voting of the Warrant Shares in the event the Warrants held
by the Holders are exercised; and
WHEREAS, Messrs. Krizelman and Paternot and Dancing Bear wish to
provide for certain arrangements with respect to the voting of any shares
of Stock (defined herein) held by them.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions.
-----------
For purposes of this Agreement, the following terms shall have the
meanings indicated:
"Acceptance Notice" shall have the meaning given to it in Section 7
hereof.
"Agreement" shall have the meaning given to it in the preamble hereto.
"Beneficially Own" shall have the meaning ascribed thereto in Rule
13d-3 under the Securities Exchange Act of 1934, as amended.
"Board" shall mean the Board of Directors of the Company and any
authorized committee thereof.
"Buyer" shall have the meaning given to it in Section 9 hereof.
"Cause" shall mean (i) conduct by an individual that is fraudulent or
unlawful, (ii) gross negligence of or willful misconduct by an individual
which discredits or damages the Company, (iii) willful and repeated failure
by an individual to perform his or her duties and such failure to perform
adversely affects the Company, (iv) an individual has become the subject of
any order, judgment, or decree of any court or regulatory authority of
competent jurisdiction which is final and non-appealable, permanently or
temporarily enjoining him or her from engaging in any activity in
connection with the purchase or sale of any security or commodity, or in
connection with any violation of federal or state securities laws or
federal commodities laws; or (v) an individual is found by a court of
competent jurisdiction in a civil action or by the SEC to have violated any
federal or state securities laws, and the judgment in such civil action or
finding by the SEC has not been subsequently reversed, suspended, or
vacated.
"Closing Date" shall have the meaning given to it in Section 7 hereof.
"Common Stock" shall have the meaning given to it in the preamble
hereto.
"Company" shall mean xxxxxxxx.xxx, inc., a Delaware corporation, and
any successor entity.
"Controlled Entity" shall mean an entity in which a Holder or Dancing
Bear Beneficially Owns a controlling interest, or an entity which
Beneficially Owns a controlling interest in Dancing Bear.
"Dancing Bear" shall have the meaning given to it in the preamble
hereto.
"Dancing Bear Nominee" shall have the meaning given to it in Section 5
hereof.
"DBI" shall have the meaning given to it in the preamble hereto.
"Founder Nominees" shall have the meaning given to it in Section 5
hereof.
"Fully Diluted Capital Stock" shall mean all issued and outstanding
shares of Common Stock and any Warrant Shares (assuming the Warrants have
been exercised).
"Holders" shall have the meaning given to it in the preamble hereto
and shall include any other party deemed a "Holder" pursuant to Section 3
hereof.
"Offered Securities" shall have the meaning given to it in Section 7
hereof.
"Offering Notice" shall have the meaning given to it in Section 7
hereof.
"Options" shall mean options exercisable for Common Stock.
"Permitted Transfer" shall mean a Transfer of Stock, Warrants, Warrant
Shares or Options (i) by a Holder or Dancing Bear to a Controlled Entity,
or (ii) by a Holder or Xx. Xxxx, while living, to such Holder's or Xx.
Xxxx'x respective spouse or children or to a trust or trusts for the
benefit of such Holder's or Xx. Xxxx'x respective spouse, children or their
issue, siblings, or parents or, at death, by will, trust or the laws of
intestacy. As a condition to any such Transfer, the transferee shall
execute an instrument in form and substance satisfactory to the Company
agreeing to be bound by the terms of this Agreement as if an original
signatory hereto, and shall execute such further documents, proxies or
stock transfer powers as may be necessary or desirable to implement the
provisions hereof.
"Permitted Transferee" shall mean a Person who receives Stock,
Warrants, Warrant Shares or Options in a Permitted Transfer.
"Person" means an individual, a corporation, a joint venture, a
partnership, a limited liability company, a firm, an association, a
business trust or any other entity.
"Preferred Stock" shall mean, collectively, the Series A, Series B,
Series C, Series D and Series E Preferred Stock of the Company, par value
$.001 per share.
"Prospective Buyer" shall have the meaning given to it in Section 7
hereof.
"Qualified Public Offering" shall mean the first underwritten public
offering of shares of Common Stock which is registered under the Securities
Act on Form S-1 (or any successor form thereto) at an aggregate offering
price of not less than $15 million.
"SEC" shall mean the Securities and Exchange Commission.
"Selling Holder" shall have the meaning given to it in Section 7
hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Series E Preferred Stock" shall have the meaning set forth in the
preamble hereto.
"Stock" shall mean the Common Stock, the Preferred Stock and any other
series or class of capital stock of the Company, the holders of which are
entitled to participate generally in the election of members of the Board.
"Tag-Along Notice" shall have the meaning given to it in Section 9
hereof.
"Take-Along Notice" shall have the meaning given to it in Section 8
hereof.
"Take Along Right" shall have the meaning given to it in Section 8
hereof.
"Transfer" means to sell, assign, donate, gift, convey, transfer,
pledge, encumber, hypothecate, grant any option with respect to or
otherwise dispose of any interest in (or enter into any agreement or
understanding with respect to the foregoing).
"Warrants" shall have the meaning given to it in the preamble hereto.
"Warrant Shares" shall have the meaning given to it in the Recitals
hereto.
Section 2. Warrants and Warrant Shares Subject to Agreement. Each of
the Holders hereby agrees that, except as may otherwise be provided herein,
this Agreement shall apply to any Warrants Transferred to such Holder on
the date of this Agreement or any future Warrant Shares issued to any such
Holder and shall continue to apply to any Warrants or Warrant Shares
Transferred by such Holder to any Permitted Transferee, whether by sale,
option, gift, bequest or otherwise. Unless otherwise provided herein, all
such transferees shall expressly become parties to this Agreement, shall be
subject to the same rights and restrictions as the Holders and, unless the
context indicates otherwise, all references to "Holder" or "Holders" herein
shall include such transferees.
Section 3. Stock Subject to Agreement. Each of the Holders and Dancing
Bear hereby agrees that, except as may otherwise be provided herein, this
Agreement shall apply to any Stock currently held by them on the date
hereof, any Stock subsequently acquired by them whether by purchase,
option, gift, bequest or otherwise, or any Stock Transferred by them to a
Permitted Transferee. Unless otherwise provided herein, all such
transferees shall expressly become parties to this Agreement, shall be
subject to the same rights and restrictions as Dancing Bear or the Holders,
as applicable, and, unless the context indicates otherwise, all references
to "Holder" or "Holders" herein shall include such transferees.
Section 4. Transfers of Warrants and Warrant Shares. No Holder shall
Transfer all or any part of his or her Warrants or Warrant Shares without
the prior written consent of Dancing Bear, except (i) to a Permitted
Transferee of such Holder, or (ii) as expressly permitted by Section 7
hereof.
Section 5. Board Representation.
--------------------
(a) Board of Directors. The Board shall be composed of the number of
directors determined in accordance with the Fourth Amended and Restated
Certificate of Incorporation of the Company, but shall be not less than
nine members without the prior written consent of the parties hereto.
Nominees for election to the Board shall be designated as follows: (i)
Dancing Bear (or its Permitted Transferees) shall have the right to
designate a majority of the nominees of the Board (each such designee being
hereinafter referred to as a "Dancing Bear Nominee"); (ii) Messrs.
Krizelman and Paternot (or the Permitted Transferees) shall collectively
have the right to designate two individuals for nomination to the Board
(such designees being hereinafter referred to as the "Founder Nominees").
Each of Dancing Bear and Messrs. Krizelman and Paternot (and their
respective Permitted Transferees) shall vote, or cause to be voted, all
shares of Stock Beneficially Owned by them at any regular or special
meeting of stockholders called for the purpose of filling positions on the
Board, or in any written consent executed in lieu of such a meeting of
stockholders in favor of the election of each Dancing Bear Nominee and each
Founder Nominee. Dancing Bear and Messrs. Krizelman and Paternot (or their
respective Permitted Transferees) shall not vote to remove any member of
the Board elected in accordance with the foregoing procedure except (i) for
Cause or (ii) each of Dancing Bear and Messrs. Krizelman and Paternot (or
their respective Permitted Transferees) shall vote, or cause to be voted,
all shares of Stock Beneficially Owned by it or him in favor of the removal
of any Dancing Bear Nominee, upon the request of Dancing Bear, or any
Founder Nominee, upon the request of Messrs. Krizelman and Paternot.
(b) Replacement Directors. If following election to the Board, any
nominee shall resign, be removed, or be unable to serve for any reason
prior to the expiration of their term as a nominee of the Company, Dancing
Bear (or its Permitted Transferees) in the case of a Dancing Bear Nominee,
or Messrs. Krizelman and Paternot (or its Permitted Transferees) in the
case of a Founder Nominee (following the same procedure for designating
such nominees set forth in Section 5(a)), shall be entitled to designate a
replacement nominee. Following such designation, each of Dancing Bear and
Messrs. Krizelman and Paternot (and their respective Permitted Transferees)
shall vote, or cause to be voted, all shares of Stock Beneficially Owned by
them in favor of the election to the Board of such replacement nominee at
any special meeting of stockholders called for such purpose, or in any
written consent executed in lieu of such a meeting.
(c) Further Action. In order to effectuate the provisions of this
Section 5, each of Dancing Bear and Messrs. Krizelman and Paternot (and
their respective Permitted Transferees) agrees that, in addition to voting,
or causing to be voted, all shares of Stock Beneficially Owned by it or him
in favor of the election to the Board of each Dancing Bear Nominee, each
Founder Nominee, and any replacement nominee designated in accordance with
Section 5(b) hereof, such parties will take, or use their best efforts to
cause to be taken, all such further action as may be necessary to ensure
the election of such nominees to the Board; provided, however, that no
party shall be required to solicit the vote of any other stockholder of the
Company.
Section 6. Voting of Warrant Shares. Each Holder hereby grants to
Dancing Bear an irrevocable proxy to vote all Warrant Shares for which any
Warrants held by them have been exercised, with full power of substitution,
in Dancing Bear's full discretion. Each Holder acknowledges that this proxy
is coupled with an interest and agrees not to give any other proxy or
proxies in derogation of this proxy as long as this Agreement is in force.
Such proxy shall remain in effect with respect to each Warrant or Warrant
Share held by a Holder until such time as a Holder has Transferred such
Warrant or Warrant Share pursuant to Section 7 hereof to a third party
(other than a Permitted Transferee).
Section 7. Right of First Refusal for Warrants and Warrant Shares.
------------------------------------------------------
(a) If at any time any Holder or any Permitted Transferee of a Holder
desires to Transfer Warrants or Warrant Shares (a "Selling Holder") in a
bona fide arms-length transaction to any third party other than a Permitted
Transferee (a "Prospective Buyer"), which Transfer is not pursuant to a
registration statement under the Securities Act, the Selling Holder shall
give written notice thereof (an "Offering Notice") to Dancing Bear. The
Offering Notice shall state (i) the number of Warrants or Warrant Shares
proposed to be sold (the "Offered Securities"), (ii) the name and address
of the Prospective Buyer, (iii) the price per Offered Security (which shall
be payable in cash) at which the Selling Holder has a reasonable and bona
fide intention to Transfer the Offered Securities to the Prospective Buyer,
and (iv) the method of payment and other terms and conditions of the
proposed Transfer.
(b) Dancing Bear (or its Permitted Transferees) shall have the
irrevocable option, but not an obligation, to purchase from the Selling
Holder all, but not less than all, of the Offered Securities. To exercise
such option, Dancing Bear shall, within 20 business days of its receipt of
the Offering Notice, deliver to the Selling Holder a notice of its
intention to exercise such option (an "Acceptance Notice"). By so
delivering an Acceptance Notice, Dancing Bear shall be committed to
exercise the option and purchase the Offered Securities at the per security
purchase price specified in the Offering Notice. The exercise of such
option and the purchase and sale of the Offered Securities resulting from
the exercise of such option shall take place at the principal offices of
Dancing Bear on the fifth day following the date of delivery of the Dancing
Bear Acceptance Notice, or at such other place, on such other date, or
both, as the Selling Holder and Dancing Bear shall agree upon in writing
(the "Closing Date"). On the Closing Date, the Selling Holder shall deliver
(i) the certificate(s) representing the number of Offered Securities to
Dancing Bear (or its Permitted Transferees) in proper form for transfer
with appropriate stock powers executed in blank attached and with all
documentary or transfer tax stamps affixed, and (ii) a certificate
representing that Dancing Bear (or its Permitted Transferees) will receive
good title to the securities represented by such certificate(s), free and
clear of all liens, security interests, pledges, charges, encumbrances,
stockholders' agreements (other than this Agreement), and voting trusts,
against payment of the purchase price therefor by a wire transfer of funds
to a bank account designated by the Selling Holder or by certified or
official bank check or checks.
(c) If Dancing Bear (or its Permitted Transferees) do not elect to
purchase the Offered Securities, the Selling Holder shall be free, during
the 30-day period commencing on the date the option granted pursuant to
this Section 7 expires unexercised, to Transfer of all but not less than
all of the Offered Securities to the Prospective Buyer at a per security
price which shall not be less than the price specified in the Offering
Notice. After such 30-day period, the Selling Holder shall not sell any
Warrants and Warrant Shares without again complying with the provisions of
this Section 7.
Section 8. Take-Along Right for Stock.
--------------------------
(a) If at any time Dancing Bear (or its Permitted Transferees) propose
to sell or exchange (in a business combination or otherwise) in a bona fide
arms-length transaction to any third party (including such purchaser's
affiliates, a "Buyer"), other than in a Permitted Transfer, pursuant to a
registration statement under the Securities Act, or in a sale pursuant to
Rule 144 under the Securities Act, shares of Stock, Warrants or Warrant
Shares which equal or exceed 25% of the Fully Diluted Capital Stock of the
Company, then, subject to the last sentence of this paragraph, Dancing Bear
(or such Permitted Transferees) shall have the right (a "Take-Along Right")
to require each Holder and their respective Permitted Transferees to sell
or exchange up to the same percentage of the Fully Diluted Capital Stock
then Beneficially Owned by such Holder (or such Permitted Transferee) as is
being sold or exchanged by Dancing Bear (and its Permitted Transferees) and
as is set forth in the Take-Along Notice (defined below) to such 25% Buyer,
on the same terms and subject to the same conditions (including but not
limited to obligations with respect to indemnification) as the sale or
exchange by Dancing Bear (and its Permitted Transferees). To exercise a
Take-Along Right, Dancing Bear shall give written notice thereof (a
"Take-Along Notice") to each Holder and their Permitted Transferees. The
Take-Along Notice shall state (i) the name and address of the 25% Buyer,
(ii) the price per security and the form of consideration which the 25%
Buyer proposes to pay for the purchased securities, (iii) the percentage of
Fully Diluted Capital Stock owned by Dancing Bear which is being sold or
exchanged, and (iv) the method of payment and other terms and conditions of
the proposed transfer. The Take-Along Right specified in this Section 8(a)
may only be exercised with respect to a Holder if the consideration to be
received includes cash in an amount sufficient to satisfy any income tax
liability attributable to the sale of such securities.
(b) The exercise of any Take-Along Right and the purchase and sale of
Stock, Warrants and Warrant Shares resulting from the exercise of such
Right shall take place at the principal offices of Dancing Bear on the
fifth business day following the date of delivery of any Take-Along Notice,
or at such other place, on such other date, or both, as the 25% Buyer and
Dancing Bear shall agree upon in writing.
Section 9. Tag-Along Rights for Stock.
--------------------------
(a) If at any time Dancing Bear (or its Permitted Transferees)
proposes to sell or exchange (in a business combination or otherwise) in
one or a series of related or contemporaneous, bona fide arms-length
transaction to any Buyer, other than in a Permitted Transfer, pursuant to a
registration statement under the Securities Act or in a sale pursuant to
Rule 144 under the Securities Act, shares of Stock, Warrants or Warrant
Shares which equal or exceed 25% of the Fully Diluted Capital Stock of the
Company, Dancing Bear shall so notify (a "Tag-Along Notice") each Holder
and their respective Permitted Transferees. The Tag-Along Notice shall
state (i) the name and address of the Buyer, (ii) the price per share and
the form of consideration which the Buyer proposes to pay for the purchased
Stock, Warrants or Warrants Shares, (iii) the percentage of Fully Diluted
Capital Stock owned by Dancing Bear and its Permitted Transferees which is
being sold or exchanged, and (iv) the method of payment and other terms and
conditions of the proposed Transfer. Each Holder and their respective
Permitted Transferees shall have the option, exercisable by written notice
to Dancing Bear, within 10 business days after Dancing Bear delivers a
Tag-Along Notice stating its intention to effect such sale, to require
Dancing Bear and its Permitted Transferees to provide as part of any such
proposed sale that each such Holder and their Permitted Transferees be
given the right to sell or exchange up to the same percentage of Fully
Diluted Capital Stock stated in the Tag-Along Notice which is then
Beneficially Owned by them (pro rata in proportion to the respective number
of shares of Stock, Warrants or Warrant Shares owned by Dancing Bear and
its Permitted Transferees, each Holder and their Permitted Transferees), in
such transaction or series of transactions on the same terms and conditions
(including but not limited to obligations with respect to indemnification)
as Dancing Bear and its Permitted Transferees, and, if such option is
exercised, Dancing Bear and its Permitted Transferees shall not proceed
with such sale unless the parties who have exercised such option are given
the right so to participate. Notwithstanding anything to the contrary set
forth above, any Warrants or Warrant Shares proposed to be sold or
exchanged by any Holder or their Permitted Transferees pursuant to this
Section 9(a) shall be subject to Dancing Bear's right of first refusal as
set forth in Section 7 hereof.
(b) If at any time Messrs. Krizelman or Paternot (or their Permitted
Transferees) propose to sell or exchange (in a business combination or
otherwise) in one or a series of related or contemporaneous, bona fide
arms-length transactions to any Buyer, other than in a Permitted Transfer,
pursuant to a registration statement under the Securities Act or pursuant
to Rule 144 under the Securities Act, shares of Stock, Warrants or Warrant
Shares which equal or exceed 7% of the Fully Diluted Capital Stock of the
Company, Messrs. Krizelman or Paternot (or their Permitted Transferees)
shall deliver a Tag-Along Notice to Dancing Bear, each other Holder and
their respective Permitted Transferees. The Tag-Along Notice shall state
(i) the name and address of the Buyer, (ii) the price per share and the
form of consideration which the Buyer proposes to pay for the purchased
Stock, Warrants or Warrants Shares, (iii) the collective percentage of the
Fully Diluted Capital Stock owned by both Messrs. Krizelman and Paternot
(and their Permitted Transferees) which is being sold or exchanged, and
(iv) the method of payment and other terms and conditions of the proposed
transfer. Dancing Bear, each other Holder and their respective Permitted
Transferees shall have the option, exercisable by written notice to Messrs.
Krizelman and Paternot (or their Permitted Transferees), within 10 business
days after Messrs. Krizelman and Paternot (or their Permitted Transferees)
deliver a Tag-Along Notice stating their intention to effect such sale or
exchange, to require Messrs. Krizelman and Paternot (or their Permitted
Transferees) to provide as part of their proposed sale that Dancing Bear,
each other Holder and their respective Permitted Transferees be given the
right to sell or exchange up to the same percentage of Fully Diluted
Capital Stock then beneficially owned by each of them (pro rata in
proportion to the respective number of shares of Stock, Warrants and
Warrant Shares owned by Messrs. Krizelman and Paternot and their Permitted
Transferees, collectively, and each other Holder, Dancing Bear and their
respective Permitted Transferees), in such transaction or series of
transactions on the same terms and conditions (including but not limited to
obligations with respect to indemnification) as Messrs. Krizelman and
Paternot and their Permitted Transferees, and, if such option is exercised,
Messrs. Krizelman and Paternot and their Permitted Investors shall not
proceed with such sale unless the parties who have exercised such option
are given the right so to participate. Notwithstanding anything to the
contrary set forth above, no Warrants or Warrant Shares may be sold or
exchanged by any Holder or their Permitted Transferees pursuant to this
Section 9(b) unless such sale or exchange is in accordance with Dancing
Bear's right of first refusal set forth in Section 7 hereof.
(c) The exercise of any Tag-Along Right and the purchase and sale of
Stock, Warrants and Warrant Shares resulting from the exercise of such
right shall take place at the principal offices of the Company on the fifth
business day following the date of delivery of any Tag-Along Notice, or at
such other place, on such other date, or both, as the Buyer and Messrs.
Krizelman and Paternot or Dancing Bear, as applicable, shall agree upon in
writing.
Section 10. Legend. The following legend shall be noted conspicuously
on all certificates representing shares of Stock, Warrants, Warrant Shares
or Options heretofore or hereafter issued which are subject to the terms of
this Agreement:
"The securities represented by this certificate are subject to
restrictions on transfer and voting, as provided in a Stockholders'
Agreement dated as of October ___, 1998, among xxxxxxxx.xxx, inc. (the
"Company") and certain of its securityholders, a copy of which is on
file with the Secretary of the Company. No sale, assignment, transfer,
pledge, encumbrance or other disposition shall be effective unless and
until the terms and conditions of that Stockholders' Agreement shall
have been complied with in full.
Section 11. No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to its securities, and neither the
Company nor any other party hereto shall take any action which is
inconsistent in any material respect with the rights granted to or
obligations undertaken by the parties to this Agreement.
Section 12. Termination. This Agreement, and the obligations of the
parties hereto, shall terminate:
(a) with respect to a Holder's Warrants and Warrant Shares at such
time as all of such Warrants and Warrant Shares have been transferred to a
third party (other than a Permitted Transferee) in accordance with the
terms of this Agreement;
(b) with respect to a party's Stock or Options upon such time as all
of such party's Stock or Options have been transferred to a third party
(other than a Permitted Transferee) in accordance with the terms of this
Agreement; or
(c) in its entirety, with the exception of the provisions contained in
Sections 6 and 7 hereof, in the event that Dancing Bear and its Permitted
Transferees hold less than 10% of the Fully Diluted Capital Stock of the
Company.
Section 13. Availability of Equitable Remedies. Since a breach of the
provisions of this Agreement could not adequately be compensated by money
damages, any non-breaching party shall be entitled, in addition to any
other right or remedy available to him, to an injunction restraining such
breach and to specific performance of any such provision of this Agreement,
and in either case no bond or other security shall be required in
connection therewith, and each party hereto hereby consents to such
injunction and to the ordering of such specific performance.
Section 14. Modification. This Agreement sets forth the entire
understanding of the parties hereto 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 at the time of any such modification;
provided, however, that any Permitted Transferee may become a party to this
Agreement upon the execution of an instrument in form and substance
satisfactory to the Company agreeing to be bound by the terms of this
Agreement as if an original signatory hereto, with no further action
required by any other party hereto.
Section 15. Notices. Any notice under or relating to this Agreement
shall be given in writing and shall be deemed sufficiently given when
delivered by hand or by conformed facsimile transmission, on the second
business day after a writing is consigned (freight prepaid) to a commercial
overnight courier, and on the fifth business day after a writing is
deposited in the mail, postage and other charges prepaid, addressed as
follows:
The Company:
xxxxxxxx.xxx,inc.
00 Xxxx 00 Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Xxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Dancing Bear:
Dancing Bear Investments, Inc.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Xxxx X. Xxxxxxxxx:
c/o xxxxxxxx.xxx, inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Xxxxxxx X. Xxxxxxxx:
c/o xxxxxxxx.xxx, inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Xxxxxx X. Xxxxxxxx:
c/o Dancing Bear Investments, Inc.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
Xxxxxxx X. Xxxxxx:
c/o Dancing Bear Investments, Inc.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Telephone No.: (000) 000-0000
or to such other address or telecopy number as either party may, from time to
time, designate in a written notice given in a like manner.
Any notice or other communication to be given hereunder to a Permitted
Transferee may be given by any party hereto to Xxxx X. Xxxxxxxxx (in the
case of a Permitted Transferee of Xxxx X. Xxxxxxxxx), to Xxxxxxx X.
Xxxxxxxx (in the case of a Permitted Transferee of Xxxxxxx X. Xxxxxxxx) to
Xxxxxx X. Xxxxxxxx (in the case of a Permitted Transferee of Xxxxxx X.
Xxxxxxxx) to Xxxxxxx X. Xxxxxx (in the case of a Permitted Transferee of
Xxxxxxx X. Xxxxxx) and to Dancing Bear (in the case of a Permitted
Transferee of Dancing Bear), in accordance with the provisions of this
Section 15. It shall be the responsibility of any of the Holders, as the
case may be, to deliver any such notice or communication to their
respective Permitted Transferees, and any party hereto shall have (i) no
responsibility to deliver such notice or communications to any such
Permitted Transferees and (ii) no liability of any kind whatsoever under
this Agreement or otherwise for failure of any of the Holders of Dancing
Bear, as the case may be, to deliver such notice or communication to any of
their respective Permitted Transferees.
Section 16. Waiver. 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 such 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 shall 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. Any waiver of any provision of this Agreement must be in
writing.
Section 17. Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors, assigns, heirs, and personal representatives.
Section 18. Separability. If any provision of this Agreement is
invalid, illegal, or unenforceable, the balance of this Agreement shall
remain in effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other persons
and circumstances.
Section 19. 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.
Section 20. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without
giving effect to the rules of such state respecting conflicts of law.
IN WITNESS WHEREOF, the parties hereto have duly executed or have
caused their duly authorized officers to execute this Agreement as of the
date first written above.
xxxxxxxx.xxx, inc.
By:
----------------------------
Name:
Title:
DANCING BEAR INVESTMENTS, INC.
By:
----------------------------
Name:
Title:
----------------------------
Xxxxxxx X. Xxxx
----------------------------
Xxxx X. Xxxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxxx
----------------------------
Xxxxxx X. Xxxxxxxx
----------------------------
Xxxxxxx X. Xxxxxx
