EXHIBIT 99.1
REGISTRATION AGREEMENT
DATED AS OF FEBRUARY 8, 1999
BETWEEN
XXXXXXXX, INC.
AND
XXXXXX X. XXXXXX
REGISTRATION AGREEMENT
REGISTRATION AGREEMENT (this "Agreement") dated as of February 8, 1999
between Xxxxxxxx, Inc. (the "Company") and Xxxxxx X. Xxxxxx (the "Holder").
WITNESSETH
WHEREAS, the Company has agreed to Register Shares of the Holder;
WHEREAS, the parties hereto hereby desire to set forth the Holders'
rights and the Company's obligations to cause the registration of the Shares
pursuant to the Securities Act;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS AND USAGE.
As used in this Agreement:
1.1. DEFINITIONS.
AGENT. "Agent" means the principal placement agent on any
agented placement of Shares.
COMMISSION. "Commission" shall mean the Securities and
Exchange Commission.
COMMON STOCK. "Common Stock" shall mean the common stock, par
value $.10 per share, of the Company.
EXCHANGE ACT. "Exchange Act" shall mean the Securities
Exchange Act of 1934.
HOLDER. "Holder" shall have the meaning set forth in the first
paragraph.
PERSON. "Person" shall mean any individual, corporation,
partnership, joint venture, association, joint-stock company, limited
liability company, trust, unincorporated organization or government or other
agency or political subdivision thereof.
REGISTER, REGISTERED AND REGISTRATION. "Register",
"registered", and "registration" shall refer to a registration effected by
preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering by the
Commission of effectiveness of such registration statement or document.
REGISTRATION EXPENSES. "Registration Expenses" shall have the
meaning set forth in SECTION 4.1.
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REGISTRATION STATEMENT. "Registration Statement" shall have
the meaning set forth in SECTION 2.1.
SECURITIES ACT. "Securities Act" shall mean the Securities Act
of 1933.
SHARES. "Shares" shall mean up to 300,000 shares of Common
Stock held by the Holder on the date of this Agreement.
TRANSFER. "Transfer" shall mean and include the act of
selling, giving, transferring, creating a trust (voting or otherwise),
assigning or otherwise disposing of (other than pledging, hypothecating or
otherwise transferring as security) (and correlative words shall have
correlative meanings); PROVIDED HOWEVER, that any transfer or other
disposition upon foreclosure or other exercise of remedies of a secured
creditor after an event of default under or with respect to a pledge,
hypothecation or other transfer as security shall constitute a "Transfer".
UNDERWRITERS' REPRESENTATIVE. "Underwriters' Representative"
shall mean, with respect to any underwritten offering of Shares, the managing
underwriter, or, in the case of a co-managed underwriting, the managing
underwriter designated as the Underwriters' Representative by the co-managers.
VIOLATION. "Violation" shall have the meaning set forth in
SECTION 5.1.
1.2. USAGE.
(i) References to a Person are also references to its
assigns and successors in interest.
(ii) References to Shares "owned" by the Holder shall
include Shares beneficially owned by the Holder but which are held of record
in the name of a nominee, trustee, custodian, or other agent.
(iii) References to a document are to it as amended,
waived and otherwise modified from time to time and references to a statute
or other governmental rule are to it as amended and otherwise modified from
time to time (and references to any provision thereof shall include
references to any successor provision).
(iv) References to Sections are to sections hereof,
unless the context otherwise requires.
(v) The definitions set forth herein are equally
applicable both to the singular and plural forms and the feminine, masculine
and neuter forms of the terms defined.
(vi) The term "including" and correlative terms shall
be deemed to be followed by "without limitation" whether or not followed by
such words or words of like import.
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(vii) The term "hereof" and similar terms refer to this
Agreement as a whole.
(viii) The "date of" any notice or request given
pursuant to this Agreement shall be determined in accordance with SECTION 8.
SECTION 2. REGISTRATION PROCEDURES. To effect the registration of
the Shares, the Company shall, as expeditiously as practicable:
2.1. Prepare and file with the Commission a registration
statement on Form S-3 with respect to the Shares (the "Registration
Statement") and use the Company's reasonable efforts to cause such
registration statement to become effective.
2.2. Prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to comply with the provisions of the
Securities Act and rules thereunder with respect to the disposition of the
Shares. If the registration is for an underwritten offering, the Company
shall amend the Registration Statement or supplement the prospectus thereto
whenever required by the terms of the underwriting agreement entered into
pursuant to SECTION 3.2 and to include the names of the underwriters and the
planned methods of distribution. Pending such amendment or supplement the
Holder shall cease making offers or Transfers of Shares pursuant to the prior
prospectus. The Company shall maintain the effectiveness of the Registration
Statement until the earlier of (i) ninety (90) days after the Holder is no
longer a director of the Company, or (ii) until all of the Shares are sold.
In the event that any Shares included in the Registration Statement remain
unsold at the end of the period during which the Company is obligated to use
reasonable efforts to maintain the effectiveness of such registration
statement, the Company may file a post-effective amendment to such
registration statement for the purpose of removing such Shares from
registered status.
2.3. Furnish to the Holder, without charge, such numbers of
copies of the Registration Statement, any pre-effective or post-effective
amendment thereto, the prospectus, including each preliminary prospectus and
any amendments or supplements thereto, in each case in conformity with the
requirements of the Securities Act and the rules thereunder, and such other
related documents as the Holder may reasonably request in order to facilitate
the disposition of the Shares.
2.4. Use the Company's reasonable efforts (i) to register and
qualify the Shares under such other securities or Blue Sky laws of such
states or jurisdictions as shall be reasonably requested by the Underwriters'
Representative or Agent, and (ii) to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement, or the lifting
of any suspension of the qualification (or exemption from qualification) of
the offer and Transfer of any of the Shares in any jurisdiction, at the
earliest possible moment; PROVIDED, HOWEVER, that the Company shall not be
required in connection therewith or as a condition thereto to qualify to do
business or to file a general consent to service of process in any such
states or jurisdictions.
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2.5. In the event of any underwritten or agented offering,
enter into and perform the Company's obligations under an underwriting or
agency agreement (including indemnification and contribution obligations of
underwriters or agents), in usual and customary form, with the managing
underwriter or underwriters of or agents for such offering. The Company
shall also cooperate with the Holder, and the Underwriters' Representative or
Agent for such offering in the marketing of the Shares, including making
available the Company's officers, accountants, counsel, premises, books and
records for such purpose, but the Company shall not be required to incur any
material out-of-pocket expense pursuant to this sentence.
2.6. Promptly notify the Holder of any stop order issued or
threatened to be issued by the Commission in connection therewith (and take
all reasonable actions required to prevent the entry of such stop order or to
remove it if entered).
2.7. Make available for inspection by the Holder, any
underwriter participating in such offering and the representatives of the
Holder and underwriter, all financial and other information as shall be
reasonably requested by them, and provide the Holder, any underwriter
participating in such offering and the representatives of the Holder and
underwriter the reasonable opportunity to discuss the business affairs of the
Company with its principal executives and independent public accountants who
have certified the audited financial statements included in the Registration
Statement, in each case all as necessary to enable them to exercise their due
diligence responsibility under the Securities Act; PROVIDED, HOWEVER, that
information that the Company determines, in good faith, to be confidential
and which the Company advises such Person in writing, is confidential shall
not be disclosed unless such Person signs a confidentiality agreement
reasonably satisfactory to the Company or the Holder agrees to be responsible
for such Person's breach of confidentiality on terms reasonably satisfactory
to the Company.
2.8. In the event of any underwritten offering, use the
Company's reasonable efforts to obtain a so-called "comfort letter" from its
independent public accountants, and legal opinions of counsel to the Company
addressed to the Underwriters' Representative, in customary form and covering
such matters of the type customarily covered by such letters. The Company
shall furnish to the Holder a signed counterpart of any such comfort letter
or legal opinion. Delivery of any such opinion or comfort letter shall be
subject to the Holder furnishing such written representations or
acknowledgments as are customarily provided by selling shareholders who
request or receive such comfort letters or opinions.
2.9. Provide and cause to be maintained a transfer agent and
registrar for the Shares from and after a date not later than the effective
date of the Registration Statement.
2.10. Use reasonable efforts to cause the Shares covered by
the Registration Statement (i) to be listed on a securities exchange or
included for quotation in a recognized trading market for a reasonable period
of time after the offering, and (ii) to be registered with or approved by
such other United States or state governmental agencies or authorities as may
be necessary by virtue of the business and operations of the Company to
enable the Holder to consummate the disposition of the Shares.
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SECTION 3. HOLDERS' OBLIGATIONS. 3.1. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to
this Agreement with respect to the Shares of the Holder that the Holder shall:
(a) Furnish to the Company such information regarding the
Holder, the number of the shares of Common Stock owned by the Holder, and the
intended method of disposition of such securities as shall be required to
effect the registration of the Shares, and to cooperate with the Company in
preparing such registration; and
(b) In the case of an underwritten offering, execute the
underwriting agreement agreed to by the Company and the Holder.
3.2. Upon the completion of the sale of the Shares pursuant to
this Agreement, the Holder shall promptly notify the Company of such
completion.
SECTION 4. EXPENSES OF REGISTRATION. Expenses in connection with
registration of the Shares shall be allocated and paid as follows:
4.1. The Company shall bear and pay all expenses incurred in
connection with the registration, filing, or qualification of the Shares,
including all registration, filing and National Association of Securities
Dealers, Inc. fees, all fees and expenses of complying with securities or
blue sky laws, all word processing, duplicating and printing expenses,
messenger and delivery expenses, the reasonable fees and disbursements of
counsel for the Company, and of the Company's independent public accountants,
(the "Registration Expenses") (which right may be Transferred to any Person
to whom Shares are Transferred as permitted by SECTION 7), but excluding
underwriting discounts and commissions relating to the Shares (which shall be
paid by the Holder).
4.2. Any failure of the Company to pay any Registration
Expenses as required by this SECTION 5 shall not relieve the Company of its
obligations under this Agreement.
SECTION 5. INDEMNIFICATION; CONTRIBUTION. Upon the registration
of the Shares pursuant to this Agreement:
5.1. To the extent permitted by applicable law, the Company
shall indemnify and hold harmless the Holder, each Person, if any, who
controls the Holder within the meaning of the Securities Act, and each
officer, director, partner, and employee of the Holder and such controlling
Person, against any and all losses, claims, damages, liabilities and expenses
(joint or several), including attorneys' fees and disbursements and expenses
of investigation, incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of the foregoing
Persons may become subject under the Securities Act, the Exchange Act or
other federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"):
(i) Any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, including any
preliminary prospectus or final prospectus contained therein, or any
amendments or supplements thereto;
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(ii) The omission or alleged omission to state therein
a material fact required to be stated therein, or necessary to make the
statements therein not misleading; or
(iii) Any violation or alleged violation by the Company
of the Securities Act, the Exchange Act, any applicable state securities law
or any rule or regulation promulgated under the Securities Act, the Exchange
Act or any applicable state securities law;
PROVIDED, HOWEVER, that the indemnification required by this SECTION 5.1
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or expense if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability or expense to the extent that it arises out of or is based
upon a Violation which occurs in reliance upon and in conformity with written
information furnished to the Company by the indemnified party expressly for
use in connection with such registration; PROVIDED, FURTHER, that the
indemnity agreement contained in this SECTION 5 shall not apply to any
underwriter to the extent that any such loss is based on or arises out of an
untrue statement or alleged untrue statement of a material fact, or an
omission or alleged omission to state a material fact, contained in or
omitted from any preliminary prospectus if the final prospectus shall correct
such untrue statement or alleged untrue statement, or such omission or
alleged omission, and a copy of the final prospectus has not been sent or
given to such person at or prior to the confirmation of sale to such person
if such underwriter was under an obligation to deliver such final prospectus
and failed to do so. The Company shall also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their officers, directors, agents and
employees and each person who controls such persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the
same extent as provided above with respect to the indemnification of the
Holder.
5.2. To the extent permitted by applicable law, the Holder
shall indemnify and hold harmless the Company, each of its directors, each of
its officers who shall have signed the Registration Statement, each Person,
if any, who controls the Company within the meaning of the Securities Act,
and each officer, director, partner or employee of such controlling Person,
against any and all losses, claims, damages, liabilities and expenses (joint
and several), including attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of the foregoing
Persons may otherwise become subject under the Securities Act, the Exchange
Act or other federal or state laws, insofar as such losses, claims, damages,
liabilities and expenses arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information furnished by the
Holder expressly for use in connection with the registration of the Shares;
PROVIDED, HOWEVER, that (x) the indemnification required by this SECTION 5.2
shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or expense if settlement is effected without the consent of
the Holder, which consent shall not be unreasonably withheld, and (y) in no
event shall the amount of any indemnity under this SECTION 5.2 exceed the
gross proceeds from the applicable offering received by the Holder.
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5.3. Promptly after receipt by an indemnified party under
this SECTION 5 of notice of the commencement of any action, suit, proceeding,
investigation or threat thereof made in writing for which such indemnified
party may make a claim under this SECTION 5, such indemnified party shall
deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in,
and, to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with
counsel mutually satisfactory to the parties; PROVIDED, HOWEVER, that an
indemnified party shall have the right to retain its own counsel, with the
fees and disbursements and expenses to be paid 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 such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time following
the commencement of any such action, if materially prejudicial to its ability
to defend such action, shall relieve such indemnifying party of any liability
to the indemnified party under this SECTION 5 but shall not relieve the
indemnifying party of any liability that it may have to any indemnified party
otherwise than pursuant to this SECTION 5. Any fees and expenses incurred by
the indemnified party (including any fees and expenses incurred in connection
with investigating or preparing to defend such action or proceeding) shall be
paid to the indemnified party, as incurred, within thirty (30) days of
written notice thereof to the indemnifying party (regardless of whether it is
ultimately determined that an indemnified party is not entitled to
indemnification hereunder). Any such indemnified party shall have the right
to employ separate counsel in any such action, claim or proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be the expenses of such indemnified party unless (i) the indemnifying
party has agreed to pay such fees and expenses, (ii) the indemnifying party
shall have failed to promptly assume the defense of such action, claim or
proceeding, or (iii) the named parties to any such action, claim or
proceeding (including any impleaded parties) include both such indemnified
party and the indemnifying party, and such indemnified party shall have been
advised by counsel that there may be one or more legal defenses available to
it which are different from or in addition to those available to the
indemnifying party and that the assertion of such defenses would create a
conflict of interest such that counsel employed by the indemnifying party
could not faithfully represent the indemnified party (in which case, if such
indemnified party notifies the indemnifying party in writing that it elects
to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection
with any one such action, claim or proceeding or separate but substantially
similar or related actions, claims or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for
the reasonable fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all such
indemnified parties, unless in the reasonable judgment of such indemnified
party a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such action, claim or
proceeding, in which event the indemnifying party shall be obligated to pay
the fees and expenses of such additional counsel or counsels). No
indemnifying party shall be liable to an indemnified party for any settlement
of any action, proceeding or claim without the written consent of the
indemnifying party, which consent shall not be unreasonably withheld.
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5.4. If the indemnification required by this SECTION 5 from
the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to
in this SECTION 5:
(i) The indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified parties shall be determined by reference to, among other things,
whether any Violation has been committed by, or relates to information
supplied by, such indemnifying party or indemnified parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such Violation. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses referred to above
shall be deemed to include, subject to the limitations set forth in SECTION
5.1 and SECTION 5.2, any legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding.
(ii) The parties hereto agree that it would not be
just and equitable if contribution pursuant to this SECTION 5.4 were
determined by pro rata allocation or by any other method of allocation which
does not take into account the equitable considerations referred to in
SECTION 5.4(i). No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
5.5. If indemnification is available under this SECTION 5,
the indemnifying parties shall indemnify each indemnified party to the full
extent provided in this SECTION 5 without regard to the relative fault of
such indemnifying party or indemnified party or any other equitable
consideration referred to in SECTION 5.4.
5.6. The obligations of the Company and the Holder under this
SECTION 5 shall survive the completion of any offering of Shares pursuant to
the Registration Statement and otherwise.
SECTION 6. AMENDMENT, MODIFICATION AND WAIVERS; FURTHER ASSURANCES.
6.1 This Agreement may be amended with the consent of the
Company and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, only if the Company
shall have obtained the written consent of the Holder to such amendment,
action or omission to act.
6.2. No waiver of any terms or conditions of this Agreement
shall operate as a waiver of any other breach of such terms and conditions or
any other term or condition, nor shall any failure to enforce any provision
hereof operate as a waiver of such provision or of any other provision
hereof. No written waiver hereunder, unless it by its own terms explicitly
provides to
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the contrary, shall be construed to effect a continuing waiver of the
provisions being waived and no such waiver in any instance shall constitute a
waiver in any other instance or for any other purpose or impair the right of
the party against whom such waiver is claimed in all other instances or for
all other purposes to require full compliance with such provision.
6.3 Each of the parties hereto shall execute all such
further instruments and documents and take all such further action as any
other party hereto may reasonably require in order to effectuate the terms
and purposes of this Agreement.
SECTION 7. ASSIGNMENT; BENEFIT. This Agreement and all of the
provisions hereof shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, assigns, executors, administrators
or successors; PROVIDED, HOWEVER, that except as specifically provided herein
with respect to certain matters, neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned or delegated by
the Holder to any person who purchases such Shares from the Holder, unless
such transferee is an "affiliate" of the Company within the meaning of Rule
144(a)(1) adopted by the Commission pursuant to the Securities Act.
SECTION 8. MISCELLANEOUS.
8.1. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT
GIVING REGARD TO THE CONFLICT OF LAWS PRINCIPLES THEREOF.
8.2. NOTICES. All notices and requests given pursuant to
this Agreement shall be in writing and shall be made by hand-delivery,
first-class mail (registered or certified, return receipt requested),
confirmed facsimile or overnight air courier guaranteeing next business day
delivery. Except as otherwise provided in this Agreement, the date of each
such notice and request shall be deemed to be, and the date on which each
such notice and request shall be deemed given shall be: at the time
delivered, if personally delivered or mailed; when actual confirmed receipt
is acknowledged, if sent by facsimile; and the next business day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next
business day delivery.
If to the Company, to:
Xxxxxxxx, Inc.
0 Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
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with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
If to the Holder:
Xx. Xxxxxx X. Xxxxxx
Tech/Ops Corp.
00xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
8.3. ENTIRE AGREEMENT; INTEGRATION. This Agreement
supersedes all prior agreements between or among any of the parties hereto
with respect to the subject matter contained herein and therein, and such
agreements embody the entire understanding among the parties relating to such
subject matter.
8.4. INJUNCTIVE RELIEF. Each of the parties hereto
acknowledges that in the event of a breach by any of them of any material
provision of this Agreement, the aggrieved party may be without an adequate
remedy at law. Each of the parties therefore agrees that in the event of
such a breach hereof the aggrieved party may elect to institute and prosecute
proceedings in any court of competent jurisdiction to enforce specific
performance or to enjoin the continuing breach hereof. By seeking or
obtaining any such relief, the aggrieved party shall not be precluded from
seeking or obtaining any other relief to which it may be entitled.
8.5. SECTION HEADINGS. Section headings are for convenience
of reference only and shall not affect the meaning of any provision of this
Agreement.
8.6. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, and all of which
shall together constitute one and the same instrument. All signatures need
not be on the same counterpart.
8.7. SEVERABILITY. If any provision of this Agreement shall
be invalid or unenforceable, such invalidity or unenforceability shall not
affect the validity and enforceability of the remaining provisions of this
Agreement, unless the result thereof would be unreasonable, in which case the
parties hereto shall negotiate in good faith as to appropriate amendments
hereto.
8.8. FILING. A copy of this Agreement and of all amendments
thereto shall be filed at the principal executive office of the Company with
the Corporate Secretary of the Company.
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8.9. TERMINATION. This Agreement may be terminated at any
time by a written instrument signed by the parties hereto. Unless sooner
terminated in accordance with the preceding sentence, this Agreement (other
than SECTION 5 hereof) shall terminate in its entirety on such date as there
shall be no Shares outstanding, PROVIDED that any Shares previously subject
to this Agreement shall not be Shares subject to this Agreement following the
sale of any such shares in an offering registered pursuant to this Agreement.
8.10. ATTORNEYS' FEES. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to
recover reasonable attorneys' fees (including any fees incurred in any
appeal) in addition to its costs and expenses and any other available remedy.
8.11. NO THIRD PARTY BENEFICIARIES. Nothing herein expressed
or implied is intended to confer upon any person, other than the parties
hereto or their respective permitted assigns, successors, heirs and legal
representatives, any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first written above.
XXXXXXXX, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President and CEO
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
