EXHIBIT 4.26
DIRECTOR SERVICE AGREEMENT
This Director Service Agreement is entered into by and between Xxxxxx Xxxxxxxx
("Director") and XxxxxxxxxXxx.xxx, Inc., a Nevada corporation (the "Company") as
of March 24, 1999.
RECITALS
WHEREAS, the Company deems it in the best interests of the Company to
attract highly qualified individuals to its Board of Directors; and
WHEREAS, the Director shall serve the Company as appointed or elected in
accordance with the Bylaws, the Articles of Incorporation of the Company, and
the Nevada Corporation Law:
NOW, THEREFORE, in consideration of the manual covenants set forth herein,
the parties agree as follows:
AGREEMENT
1. Service. The Director shall serve for up to three (3) years as duly
appointed by the Board of Directors or elected by the shareholders of the
Company.
2. Insurance. The Company shall maintain Directors and Officers insurance in
the amount of $5,000,000.
3. Expenses. The Company shall reimburse Director for all travel and other
expenses incurred for his attendance at any meeting of the Board or any
committee thereof.
4. Options. Director shall be entitled to options to acquire shares of the
Common Stock of the Company pursuant to the terms of a Stock Option Plan to be
adopted by the Company subject to the following terms:
(a) The options will vest only as follows:
Event Amount
----- ------
Upon appointment or election to Options to acquire 25,000 shares of
the Board Common Stock
Upon the first day of the second Options to acquire 25,000 shares of
quarter of service Common Stock
Upon the first day of the third Options to acquire 25,000 shares of
quarter of service Common Stock
Upon the first day of the fourth Option to acquire 25,000 shares of
quarter of service Common Stock
(b) The exercise price for the options shall be the closing price on the
date that each option is granted; as appropriately adjusted for stock splits,
stock dividends, and the like.
(c) The vested options shall be exercisable for five (5) years after the
granting thereof. No additional vesting of options shall occur after Director's
death, disability, or cessation of service on the Board for any reason or no
reason.
(d) Issuance of the options shall be in accordance with all applicable
securities laws.
5. Registration Rights.
(a) Definitions.
"Commission" means the United States Securities and Exchange
Commission
"Holder" means Director, so long as Director holds any
Registrable Securities.
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other entity or
organization.
"Registrable Securities" means (i) the Common Shares issued to
Director pursuant exercise of the options granted in Section 4 and (ii) any
other securities that may be issued or distributed in respect of such Common
Shares by way of dividend, split, exchange or other distribution, re-
capitalization or re-classification. For the purposes of this Agreement,
Registrable Securities will cease to be Registrable Securities when (i) a
registration statement covering such Registrable Securities has been declared
effective and they have been disposed of pursuant to such effective registration
statement, (ii) they are distributed pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act or (iii) they have been
otherwise transferred and the Company has delivered new certificates or other
evidences of ownership for them not subject to any stop transfer order or other
restriction on transfer and not bearing a legend restricting transfer.
"Securities Act" means the United States Securities Act of 1933,
as amended.
(b) Registration.
(i) Registration of Common Stock. If, at any time prior to the
second anniversary of this Agreement, the Company proposes to file a
registration statement under the Securities Act with respect to an offering by
the Company of its Common Stock then the Company shall give notice by telephone
(and confirmed by written notice) (together, the "Registration Notice") of such
proposed filing to the Holder of Registrable Securities as early as practicable,
but in no event later than thirty days before the anticipated filing date,
provided, however, that the Company shall have no obligation to give the
Registration Notice to the Holder with respect to the filing of any registration
statement in connection with the Company's first offering after the date of this
Agreement and the Company shall have no obligation to include Registrable
Securities in such registration. Any Registration Notice shall state the
estimated proposed offering price, the estimated number of securities proposed
to be registered and whether the registration will be in connection with an
underwritten offering (and, if not, shall identify the alternative plan of
distribution) and offer the Holder the opportunity to include in such
registration statement such amount of Registrable Securities as the Holder may
request by written notice delivered to the Company prior to the anticipated
filing date (any such request being referred to as a "Registration Request"). If
such registration is in connection with an underwritten offering or in
connection with a transaction pursuant to which securities are being sold to a
purchaser or purchasers with a view to the redistribution thereof, such
Registrable Securities may only be sold as part of such underwriting or
transaction. If the anticipated filing date is deferred by more than fifteen
business days, the Company shall promptly give written notice of such new filing
date to the Holder of Registrable Securities, which notice shall offer such
Holder the opportunity to request to include such greater or lesser amount of
Registrable Securities as previously requested, provided such Holder makes such
new request no later than forty-eight hours prior to the new filing date.
(ii) Underwritten Offerings. The Company shall use its best
efforts to cause the managing underwriters of a proposed underwritten offering
pursuant to Section 5 (b)(i) to permit the Holder of Registrable Securities
requested to be included in the registration for such offering to include such
Registrable Securities in such offering. Upon request by the Company or the
managing underwriters made to the Holders of Registrable Securities, such Holder
shall enter into underwriting agreements with such underwriters providing for
the inclusion of such Registrable Securities in such offering on such terms and
conditions or, if the Holder shall refuse to enter into any such agreements, the
Company shall have the right to exclude from such registration all (but no less
than all) Registrable Securities of the Holder. Notwithstanding the foregoing,
if the managing underwriters of such offering advise the Company in writing that
in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in any orderly manner in such
offering within a price range acceptable to the Company, the Company will
include in such registration (A) first, the securities originally intended to be
sold on behalf of the Company prior to the giving of the Registration Notice,
and (B) second, the Registrable Securities to the extent such Registrable
Securities have been requested to be included in such registration, pro rata
among the Holders on the basis of the number of shares owned by each such
Holder.
(iii) Effectiveness, Etc. Then Company agrees to use its best
efforts to effect the registration and the sale of the Registrable Securities
requested to be registered pursuant to this Section 5(b) in accordance with the
intended method of disposition thereof as quickly as practical; except that the
Company may terminate such registration in its sold discretion and for any
reason.
(iv) Availability of Rule 144. Notwithstanding this Section
5(b), the Company shall not be obligated to effect registration of any
Registrable Securities to the extent that such Registrable Securities to be
included in such registration can be sold pursuant to Rule 144 under the
Securities Act.
(c) Holdback Agreement. To the extent not inconsistent with applicable
law, Holder of Registrable Securities agrees not to offer publicly or effect any
public sale or distribution of the issue being registered or of any similar
security of the Company, or any securities convertible into or exchangeable or
exercisable for such securities, including a sale pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act, during the seven days
prior to, and during the ninety day period beginning on, the effective date of
all registration statements relating to the Company's securities, if and to the
extent requested by the Company in the case of a non-underwritten public
offering in with Registrable Securities of the Holder are included or if and to
the extent requested by the managing underwriter(s) in the case of an
underwritten public offering during the first year of this Agreement. Anything
herein to the contrary notwithstanding, under no circumstances shall the Holder
of Registrable Securities be precluded by the provisions of this Section 3 from
offering publicly or effecting any public sale or distribution of Registrable
Securities for more than ninety days out of any consecutive period of 270 days.
(d) Registration Procedures. Subject to the provisions of Section 5(b)
hereof, in connection with the registration of Registrable Securities hereunder,
the Company will as expeditiously as possible:
(i) furnish to each seller of Registrable Securities, prior to filing a
registration statement, copies of such registration statement as proposed to be
filed, and thereafter such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits thereto),
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents in such quantities as such
seller may reasonably request from time to time in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(ii) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller of Registrable Securities reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdiction of the
Registrable Securities owned by such seller; except that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (b), (ii)
subject itself to taxation in any such jurisdiction or (iii) consent to general
service of process in any such jurisdiction;
(iii) use its best efforts to cause the Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operation of the Company to enable the seller or sellers thereof to
consummate the disposition of such Registrable Securities;
(iv) notify each seller of such Registrable Securities, at any time when
a prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in such registration statement 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 the Company will promptly
(or, if such event is the conduct of negotiations disclosure of which, in the
Company's reasonable judgement, would be detrimental to the Company and the
Company shall have given a notice to each seller of Registrable Securities to
such effect (the "Negotiation Notice"), promptly after any required disclosure
would not be detrimental to the Company but in no event more than ninety days
after the giving of the Negotiation Notice) prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable 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.
(v) use its best efforts to cause all such Registrable Securities to be
listed (A) on each securities exchange on which securities issued by the Company
are then listed, or (B) if no such securities are then listed, on the Nasdaq
National Market;
(vi) enter into customary agreements (including an underwriting
agreement in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Registrable
Securities;
(vii) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter (collectively, the "Inspectors"), all financial
and other records, pertinent corporate documents and properties of the Company
and its subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence responsibility, and
cause the officers, directors and employees of the Company to supply all
information reasonable requested by any such Inspector in connection with such
registration statement. Records which the Company determines, in good faith, to
be confidential and which it notifies the Inspectors are confidential shall not
be disclosed by the Inspectors unless (A) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in the registration
statement and either (1) such registration has not been terminated or delayed
pursuant to the provisions of Section 5(b) hereof, as the case may be, or (2)
sales have been consummated pursuant to such registration statement by any
seller of Registrable Securities or (b) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction.
Each seller of Registrable Securities shall use reasonable efforts, prior to any
such disclosure by such seller's Inspector, to inform the Company that such
disclosure is necessary to avoid or correct a misstatement or omission in the
registration statement. Each seller of Registrable Securities further agrees
that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at the expense of the Company, to undertake
appropriate action to prevent disclosure of the Records deemed confidential;
(viii) in the event such sale is pursuant to an underwritten public
offering, use its best efforts to obtain a letter of the kind contemplated by
the Statement of Auditing Standards No. 72, "Letters For Underwriters and
Certain Other Requesting Parties," promulgated by the American Institute of
Certified Public Accountants (an "AICPA Letter") from the independent public
accountants for the Company in customary form and covering such matters of the
type customarily covered by such letters as the Holder reasonably requests; and
(ix) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and to make available to the Holder of
Registrable Securities, as soon as reasonably practicable, an earning statement
covering a period of twelve months, beginning within three months after the
effective date of the registration statement, which earning statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish the Company such information
regarding such seller or the distribution of such securities as the Company may
from time to time reasonably request in writing, in each case only as required
by the Securities Act.
The Holder of Registrable Securities agrees that, upon receipt of any
notice (including any Negotiation Notice) from the Company of the happening of
any event of the kind described in Section 5(d)(iv) hereof, the Holder shall
forthwith discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until the Holder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 5(d)(iv) hereof (the "Blackout Period"), and, if so directly by the
Company, the Holder will deliver to the Company (at the expense of the Company)
all copies, other than permanent file copies then in the Holder's possession, of
the prospectus covering such Registrable Securities current at the time of
receipt of such notice. The Company will suspend any underwritten public
offering that includes the Registrable Securities during the Blackout Period.
(e) Registration Expenses.
All expenses incident to the performance of or compliance with
Section 5 this Agreement by the Company, including, without limitation, all
registration and filing fees (including, without limitation, fees of the
Commission and the National Association of Securities Dealers, Inc.), fees and
expenses of compliance with securities or blue sky laws (including reasonable
fees and disbursements of counsel in connection with blue sky qualifications of
the Registrable Securities), rating agency fees, printing expenses, messenger
and delivery expenses, internal expenses the fees and expenses incurred in
connection with the listing of the securities to be registered one each
securities exchange on which securities issued by the Company are then listed,
fees and disbursements of counsel, for the Company and its independent certified
public
accountants (including the expenses of any special audit or AICPA Letter
required by or incident to such performance), securities act liability insurance
(if the Company elects to obtain such insurance), the fees and expenses of any
special experts retained by the Company in connection with such registration and
the fees and expenses of other persons retained by the Company (all such
expenses being herein called "Registration Expenses"), will be borne by the
Company, except that the Holder will pay those expenses incurred solely as a
result of Holder's participation in the offering, including, but not limited to,
Holder's pro rata portion of the Commission.
(f) Indemnification; Contribution. In connection with any registration
statement in which the Holder of Registrable Securities is participating, the
Holder and the Company will furnish in writing such information with respect to
each other as is reasonably requested for use in connection with any such
registration statement, or any prospectus or preliminary prospectus contained
therein, or any amendment or supplement thereto, and each agrees to indemnify
the other, to the extent permitted by law, against any losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of a
material fact contained in any such registration statement, or any prospectus or
preliminary prospectus contained therein, or any amendment 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 not
misleading, to the extent, but only to the extent, that such untrue statement or
omission is contained in any information provided for use in the preparation of
such registration statement. The Company will furnish Holder with a copy of the
information attributable to the Holder in the registration statement at the time
of the initial filing. Notwithstanding anything to the contrary in this
Agreement, in no event shall any indemnification provided hereunder by the
Holder and the Company of Registrable Securities in connection with any
registration thereof exceed the amount of proceeds received by either of them in
connection with such registration. In no event shall the amount contributed
hereunder by the Holder of Registrable Securities in connection with any
registration thereof exceed the amount of proceeds received by such Holder in
connection with such registration.
(g) Participation in Underwritten Registrations. No person may
participate in any underwritten registration thereunder unless such person (i)
agrees to sell such person's securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(h) Termination of the Company's Obligations. The Company's obligations
to register Registrable Securities pursuant to Section 5 hereof shall terminate
on the date on which all Registrable Securities (other than Registrable
Securities acquired by the Company or any affiliate of the Company) can be
freely sold by the Holder thereof without registration under the Securities Act
to a transferee, who (unless an affiliate of the Company) would be able to sell
freely such Common Shares without further registration under the Securities Act.
6. General.
(a) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof may not be given
unless the Company has obtained the written consent of the Holder.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made by hand deliver, telex, telecopy, overnight
courier or registered first-class mail:
(i) if to the Holder of Registrable Securities at the most current
address given by the Holder to the Company in writing.
(ii) if to the Company at its address set forth as follows: 000 Xxxx
Xxxxx, Xxxxxxxxx Xxxxxxx, Xxxxxxx 00000
All such notices and communications shall be deemed to have been duly given,
when delivered, if by hand, overnight courier or mail, when the appropriate
answer is received, if by telex; when transmitted, if by telecopy.
(c) Successors and Assigns; Nontransferability of Registration Rights.
This Agreement shall inure to the benefit and be binding upon the successors of
each of the parties. The registration rights set forth in this Agreement may not
be transferred by Director to any other Person.
(d) Delay of Registration. No Holder shall have any right to take any
unreasonable action to restrain, enjoin or otherwise delay any registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings to this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Florida applicable to contracts and to be performed
wholly within Florida.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended that all of the rights and privileges of Director
shall be enforceable to the fullest extent permitted by law.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
XXXXXXXXXXXX.XXX, INC.
Name: /s/ Xxxxx X. Xxxxx
______________________________
Xxxxx X. Xxxxx
Title: Executive Vice President
Name: /s/ Xxxxxx Xxxxxxxx
______________________________
Xxxxxx Xxxxxxxx
Title: Director
