REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") made this 27th day of
December, 1999, by and between XXXXXX TECHNOLOGIES, INC., a Delaware corporation
("Xxxxxx" or the "Company") and GREYSTONE FUNDING CORPORATION, a Virginia
corporation ("Greystone") and its permitted designees (individually, a "Holder"
and, collectively, the "Holders").
WHEREAS, concurrently with the execution and delivery hereof, the Company,
Xxxxxx Technologies, Inc., a New York Corporation ("Xxxxxx New York" and,
together with Xxxxxx, the "Debtors") and Greystone are entering into a Loan
Agreement of even date herewith (the "Loan Agreement"), pursuant to which
Greystone has agreed, subject to the terms and conditions thereof, to extend a
line of credit to Xxxxxx and Xxxxxx Delaware not to exceed $7,500,000 in
principal amount outstanding at any time, with all loans and advances thereunder
(the "Advances") and interest thereon to be evidenced by that certain line of
credit promissory note of the Debtor of even date herewith in such maximum
principal amount payable to the order of Greystone (the "Note"); and
WHEREAS, in order to induce Greystone to make the Advances pursuant to the
Loan Agreement and to be evidenced by the Note, Xxxxxx has agreed to issue to
Greystone warrants (the "Warrants") to purchase shares of Xxxxxx Common Stock
and to register the underlying shares of its common stock to be issued pursuant
to the exercise of such warrants pursuant to the terms and conditions of this
Agreement;
The parties hereto agree as follows:
ARTICLE 1
Section 1.1 Definitions. Certain defined terms used herein and not
otherwise defined shall have the meanings for such terms as used in the Loan
Agreement. In addition, as used in this Agreement, the following capitalized
terms have the following meanings:
Exchange Act shall mean, as of any date, the Securities Exchange Act of
1934, as amended, or any similar federal statute then in effect, and a reference
to a particular section thereof shall include a reference to the comparable
section, if any, of any similar federal statute and the rules and regulations
thereunder.
Holders shall mean any Holder and his permitted transferee or assignee
under the Loan Agreement.
Public Offering shall mean a public offering and sale of equity securities
of the Company or any successors thereto, pursuant to an effective registration
statement under the Securities Act.
Registrable Securities shall mean the Xxxxxx Common Stock issued pursuant
to the exercise of the Warrants.
As to any particular Registrable Securities, such securities shall cease to
be Registrable Securities when (i) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of under such registration statement,
(ii) such securities shall have become eligible for resale pursuant to Rule
144(k) and any restrictive legend on certificates representing such securities
shall have been removed, (iii) such securities shall have been otherwise
transferred or disposed of, and (x) new certificates therefor not bearing a
legend restricting further transfer shall have been delivered by the Company,
and (y) subsequent transfer or disposition of them shall not require their
registration or qualification under the Securities Act or any similar state law
then in force or compliance with Rule 144, or (iv) such securities shall have
ceased to be outstanding. The Registrable Securities held by a holder shall
cease to be Registrable Securities if such Holder can immediately sell all
Registrable Securities held by such Holder pursuant to Rule 144.
Securities Act shall mean, as of any date, the Securities Act of 1933, as
amended, or any similar federal statute then in effect, and in reference to a
particular section thereof shall include a reference to the comparable section,
if any, of any such similar federal statute and the rules and regulations
thereunder.
Shelf Registration shall mean a registration effected pursuant to Section
2.1 hereof.
Shelf Registration Statement shall mean one or more registration statements
of the Company pursuant to the provisions of Section 2.1 hereof filed with the
Securities and Exchange Commission (the "SEC") which covers the Registrable
Securities, provided that the Company may at its option file more than one
registration statement so long as all Registrable Securities are included in at
least one such registration statement, on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the SEC,
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the prospectus contained
therein, any prospectus supplement, all exhibits thereto and all material
incorporated by reference therein.
ARTICLE 2
Registration Rights
Section 2.1 Shelf Registration.
(a) At any time or from time to time, upon the written request of
Greystone, requesting that the Company effect a registration under the
Securities Act of all or part of the Registrable Securities but in no event less
than 3,000,000 shares of such Registrable Securities which specifies the
intended method of disposition thereof, the Company shall subject to the terms
of this agreement (i) file with the SEC a Shelf Registration Statement relating
to the offer
2
and sale of the Registrable Securities and (ii) take all necessary and
reasonable steps to cause such Shelf Registration Statements to be declared
effective under the Securities Act; provided, however, that no Holder shall be
entitled to have the Registrable Securities held by it covered by such Shelf
Registrations unless such Holder is in compliance with Sections 2.4 and 2.5
hereof.
(b) The Company shall (i) take all necessary and reasonable steps to keep
any Shelf Registration Statement continuously effective in order to permit the
prospectus forming a part thereof, and any requisite prospectus supplement, to
be usable by the Holders until all (x) Registrable Securities covered by the
Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement or (y) the Securities registered on the Shelf Registration Statement
cease to be Registrable Securities, and (ii) after the effectiveness of the
Shelf Registration Statement, promptly upon the request of any Holder to take
any action reasonably necessary, including the preparation and filing of any
amendments to the Shelf Registration Statement and any prospectus supplement, to
register the sale of any Registrable Securities of such Holder and to identify
such Holder as a selling securityholder.
(c) the Company shall use its best efforts to qualify for registration on
Form S-3 or its successor form consistent with its obligations to become current
in its SEC Reporting Requirements under Section 2.9.
Section 2.2 Registration Procedures.
(a) In connection with any Shelf Registration Statement, the Company shall:
(i) Prepare and file with the SEC a Shelf Registration Statement
within 90 days after receipt of a written request of the Holder, provided
that such written request is made no earlier than July 15, 2000 or such
earlier date as the Company may become current win its SEC filings, on an
appropriate form pursuant to Rule 415 of the Securities Act and which the
Company is eligible to use, with respect to such Registrable Securities and
cause such Shelf Registration Statement to become and remain effective as
provided in Section 2.1.
(ii) Prepare and timely file with the SEC such amendments (including
post-effective amendments) and supplements to such Shelf Registration
Statement and the prospectus used in connection therewith as may be
necessary to keep such Shelf Registration Statement effective and to comply
with the provisions of the Securities Act with respect to the disposition
of all Registrable Securities covered by such Shelf Registration Statement
in accordance with the intended methods of disposition by the Holder or
Holders thereof set forth in such Shelf Registration Statement.
(iii) Furnish to each Holder of such Registrable Securities covered by
the Shelf Registration Statement, such number of copies of a prospectus,
preliminary prospectus and/or prospectus supplement for delivery in
conformity with the requirements of the Securities Act, and such other
documents, as such person may reasonably request including an opinion of
counsel for the Company and a comfort letter or agreed upon procedures
letter if requested, in order to facilitate the public sale or other
disposition of the Registrable Securities.
3
(iv) Take all necessary and reasonable steps to register or qualify
such Registrable Securities covered by such Shelf Registration Statement
under such other securities or blue sky laws of such jurisdictions as each
Holder shall reasonably request, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such Holder to
consummate the disposition of the Registrable Securities owned by such
Holder, in such jurisdictions, except that the Company shall not for any
such purpose be required (A) to qualify to do business as a foreign
corporation in any jurisdiction where, but for the requirements of this
Section 2.2(a)(iv), it is not then so qualified, or (B) to subject itself
to taxation in any such jurisdiction, or (C) to take any action which would
subject it to general or unlimited service of process in any such
jurisdiction where it is then so subject.
(v) Take all necessary and reasonable steps to cause such Registrable
Securities covered by such Shelf Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be necessary to enable the Holder or Holders thereof to consummate the
disposition of such Registrable Securities.
(vi) Immediately notify each Holder of Registrable Securities covered
by such Shelf Registration Statement, if the Company becomes aware that the
prospectus included in such Shelf Registration Statement, as then in
effect, includes 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 in the light of the circumstances then
existing, and, at the request of any such Holder, deliver a reasonable
number of copies of an amended or supplemental prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing.
(vii) Make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Shelf Registration Statement as
quickly as practicable.
(viii) Otherwise comply with all applicable rules and regulations of
the SEC and any state securities or "blue sky" administrators.
(ix) List such Registrable Securities on any securities exchange on
which any of the securities of the same class as the Registrable Securities
are then listed.
(x) Maintain a transfer agent and registrar, which may be a single
entity, for the Registrable Securities not later than the effective date of
the Registration Statement;
(xi) Cooperate with the Holders of Registrable Securities being
offered to facilitate the timely preparation and delivery of certificates
for the Registrable Securities to be offered pursuant to the Registration
Statement and enable such certificates for the Registrable Securities to be
in such denominations or amounts as the case may be, as the Holders may
4
reasonably request and registered in such names as the Holders may request;
and, within three (3) business days after a Registration Statement which
includes Registrable Securities is ordered effective by the SEC, the
Company shall deliver, and shall cause legal counsel selected by the
Company to deliver, to the transfer agent for the Registrable Securities
(with copies to the Holders whose Registrable Securities are included in
such Registration Statement) an appropriate instruction and opinion of such
counsel; and
(xii) Take all other reasonable actions necessary to expedite and
facilitate disposition by the Holder of the Registrable Securities pursuant
to the Registration Statement.
(b) Each holder of Registrable Securities will, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
2.2(a)(vi), forthwith discontinue disposition of the Registrable Securities
pursuant to the registration statement covering such Registrable Securities
until such Holder's receipt of the copies of the supplemented or amended
prospectus contemplated by Section 2.2(a)(vi).
Section 2.3 Limitations on Offerings by the Holders.
If at any time the Company is engaged, or proposes to engage in a
registered Public Offering, underwritten offering or merger, or is engaged or
proposes to engage in any other activity or corporate event that, in the good
faith determination of the Board of Directors of the Company (the "Board"),
would be adversely affected by a Shelf Registration or the required disclosure
in connection therewith to the material detriment of the Company or any
affiliate thereof, then the Company may at its option direct that such offering
under the Shelf Registration be delayed, suspended or postponed for a period not
in excess of 90 days from the effective date of such offering (other than a
registration on Form S-8 or Form S-3 relating to an employee benefit plan), or
the date of commencement of such other material activity, as the case may be.
Section 2.4 Holders' Cooperation.
(a) Holders of Registrable Securities desiring to sell in a Shelf
Registration Statement will furnish to the Company such information as the
Company may reasonably require from such Holder in connection with the Shelf
Registration Statement (and the prospectus included therein). No Holder may
participate in any offering unless such Holder (i) agrees to sell his
Registrable Securities to be sold on the basis provided in any agreement
governing the offering and (ii) completes and executes all questionnaires,
indemnities, and other documents required in connection with the offering.
(b) Failure of Holder to furnish the information and agreements described
in this Agreement shall not affect the obligations of the Company under this
Agreement to remaining Holders who do furnish such information and agreements
unless, in the reasonable opinion of counsel to the Company, such failure
impairs or may impair the viability of the offering or the legality of the
registration or the underlying offering.
5
(c) The Holders holding shares included in the registration will not (until
further notice by the Company) effect sales thereof (or deliver a prospectus to
any purchaser) after receipt of telegraphic or written notice from the Company
to suspend sales to permit the Company to correct or update a registration
statement or prospectus. At the end of the period during which the Company is
obligated to keep the registration statement current and effective as described
in Section 2.1(b)(i), the Holders holding shares of Registrable Securities
included in the registration shall discontinue sales of shares pursuant to such
registration statement upon receipt of notice from the Company of its intention
to remove from registration the shares of Registrable Securities covered by such
registration statement that remain unsold, and such Holders shall notify the
Company of the number of such shares registered that remain unsold immediately
upon receipt of such notice from the Company.
In connection with any offering, each Holder who intends to sell
Registrable Securities in the Shelf Registration Statement, will not use any
offering document, offering circular or other offering materials with respect to
the offer or sale of Registrable Securities, other than the prospectuses
provided by the Company and any documents incorporated by reference therein.
Section 2.5 Expenses of Shelf Registration Statements.
All expenses incurred in effecting a Shelf Registration Statement pursuant
to Section 2.1 shall be borne by the Holders, except for those expenses which
would necessarily be required to be paid by the Company regardless of whether or
not any Shelf Registration Statement is filed or in effect, including for
example, the cost of regular audits of the Company's financial statement which
shall be borne by the Company. The costs to be borne by the Holder shall
include, without limitation, Registration fees, printing expenses and expenses
in compliance with Blue Sky laws.
Section 2.6 Piggyback Registration Rights.
(a) If at any time or from time to time, the Company shall determine to
register any of its securities, for its own account or the account of any of its
stockholders, other than a registration relating solely to employee benefit
plans, or a registration relating solely to an SEC Rule 145 transaction, a
transaction relating solely to the sale of debt or convertible debt instruments
or a registration on any form (other than Form X-0, X-0 or S-3, or their
successor forms) which does not include substantially the same information as
would be required to be included in a registration statement covering the sale
of Registrable Securities, the Company will:
(i) give to the Holders written notice thereof as soon as practicable
prior to filing the registration statement; and
(ii) include in such registration and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within fifteen (15) days after receipt of such written
notice from the Company by the Holder.
6
(b) If the registration is for a registered Public Offering involving an
underwriting, the Company shall so advise the Holder as a part of the written
notice given pursuant to subsection 2.6(a)(i). In such event, the right of the
Holder to registration pursuant to Section 2.6 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. Should
the Holder propose to distribute his securities through such underwriting, he
shall (together with the Company and the other Holders distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this Section
2.6, if a managing underwriter determines that marketing factors require a
limitation of the number of shares to be underwritten, the managing underwriter
may limit the number of Registrable Securities to be included in the
registration and underwriting. The Company shall so advise the Holder and the
other Holders distributing their securities through such underwriting pursuant
to piggyback registration rights similar to this Section 2.6, and the number of
shares of Registrable Securities and other securities that may be included in
the registration and underwriting shall be allocated among the Holder and other
Holders in proportion, as nearly as practicable, to the respective percentage of
the Company held by the Holder and other securities held by other Holders at the
time of the filing of the registration statement assuming the exercise of all
warrants held by Xxxxxxx Xxxxxx and Greystone. If the Holder disapproves of the
terms of any such underwriting, he may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. Any Registrable Securities
excluded or withdrawn from such underwriting shall be withdrawn from such
registration.
(c) All expenses for registrations pursuant to this Section 2.6, including,
without limitation, printing expenses, expenses of compliance with blue sky
laws, fees and disbursements of counsel for the Company and expenses of any
audits incidental to or required by any such Registration Statement, shall be
borne by the Company, except that (i) all expenses, fees and disbursements of
any counsel retained by the Holders shall be borne entirely by such Holders, and
(ii) all registration and filing fees and all brokerage and selling commissions
shall be borne by the Holders holding the securities registered pursuant to such
Registration Statement, in pro rata fashion, according to the quantity of their
securities so registered.
Section 2.7 Indemnification.
(a) In the event of any registration of any securities of the Company under
the Securities Act pursuant to this Agreement, the Company will, and it hereby
agrees to, indemnify and hold harmless, to the extent permitted by law, each
Holder of any Registrable Securities covered by such registration statement, its
directors and officers or general and limited partners, as follows:
(i) against any and all loss, liability, claim, damage or expense
whatsoever arising out of or based upon an untrue statement or alleged
untrue statement of a material fact contained in any registration statement
(or any amendment or supplement thereto),
7
including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of an untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense reasonably incurred by them in
connection with investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, to the extent that any such expense is not
paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any such Holder or to the extent such Holder fails to comply with
Section 2.2 (b). Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such Holder or any such director,
officer, general or limited partner, investment advisor or agent, or controlling
person and shall survive the transfer of such securities by such Holder.
(b) The Company may require, as a condition to including any Registrable
Securities in any registration statement filed in accordance with this
Agreement, that the Company shall have received an undertaking reasonably
satisfactory to it from the Holder of Registrable Securities, to indemnify and
hold harmless (in the same manner and to the same extent as set forth in Section
2.7(a)) the Company with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement,
if such statement or alleged statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by or on behalf of such Holder. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of the
Company or any such director, officer or controlling person and shall survive
the transfer of such securities by such Holder. In that event, the obligations
of the Company and such Holder pursuant to this Section 2.7 are to be several
and not joint; provided, however, that with respect to each claim pursuant to
this Section, the Company shall be liable for the full amount of such claim, and
each such Holder's liability under this Section 2.7 shall be limited to an
amount equal to the proceeds received by such Holder from the sale of
Registrable Securities
8
held by such Holder pursuant to this Agreement.
(c) Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding involving a claim
referred to in this Section 2.7, such indemnified party will, if a claim in
respect thereof is to be made against an indemnifying party, give written notice
to such indemnifying party of the commencement of such action; provided,
however, that the failure of any indemnified party to give notice as provided
herein shall not relieve the indemnifying party of its obligations under this
Section 2.7, except to the extent that the indemnifying party is actually
prejudiced by such failure to give timely notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim (in which case the
indemnifying party shall not be liable for the fees and expenses of more than
one firm of counsel for a majority of the Holders of Registrable Securities in
connection with any one action or separate but similar or related actions), the
indemnifying party will be entitled to participate in and to assume the defense
thereof, jointly with any other indemnifying party similar notified, to the
extent that it may wish with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will not
be liable to such indemnified party for any legal or other expenses subsequently
incurred by such indemnifying party in connection with the defense thereof.
Section 2.8 Contribution.
In order to provide for just and equitable contribution in circumstances
under which the indemnity contemplated by Section 2.7 is for any reason not
available, the parties required to indemnify by the terms thereof shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity agreement incurred by the Company and
any Holder of Registrable Securities, except to the extent that contribution is
not permitted under Section 11(f) of the Securities Act. In determining the
amounts which the respective parties shall contribute, there shall be considered
the relative benefits received by each party from the offering of the
Registrable Securities (taking into account the portion of the proceeds of the
offering realized by each), the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement or omission and any other
equitable considerations appropriate under the circumstances. The Company and
each Holder selling securities agree with each other that no seller of
Registrable Securities shall be required to contribute any amount in excess of
the amount such Holder would have been required to pay to an indemnified party
if the indemnity under Section 2.7(b) were available.
Section 2.9 Rule 144.
The Company covenants that by August 1, 2000, it will have filed all of the
reports that were required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder,
including periodic reports under Section 13
9
or 15(d) of the Exchange Act (the "Reports") that have not been filed that it
will take all reasonable and necessary steps to complete such Reports as quickly
as possible to be considered "current" prior to August 1, 2000 and that it will
timely file all Reports required thereafter. If at any time the Company ceases
to be required to file such periodic reports, the Company will, upon the request
of any Holder of Registrable Securities, make publicly available the information
specified in paragraph (c) of Rule 144 under the Securities Act, and it will
take such further action as any Holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by (i) Rule 144 under the Securities
Act, as such Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Without limitation to the foregoing,
the Company shall, promptly upon the request of any Holder, deliver to such
Holder a written statement as to whether it has complied with the requirements
of Section 13 or 15(d) of the Exchange Act during the 12 months preceding such
request. Each Holder may assign his rights under this Agreement to anyone to
whom he sells, transfers or assigns any of the Registrable Securities so long as
the new Holder is not and will not upon receipt of such Registrable Securities
become an affiliate of the Company.
ARTICLE 3
Termination
Section 3.1 Certain Terminations.
(a) The provisions of this Agreement shall terminate on the date which is
ten (10) years from the date of this Agreement.
(b) Notwithstanding the foregoing, this Agreement shall in any event
terminate with respect to any Holder when such Holder no longer owns any
Registrable Securities.
ARTICLE 4
Miscellaneous
Section 4.1 Successors and Assigns.
The rights to have the Company register Registrable Securities pursuant to
this Agreement shall be automatically assigned by the Holder to any transferee
of all or any portion of such securities of Registrable Securities only if: (a)
the Holder agrees in writing with the transferee or assignee to assign such
rights, and a copy of such agreement is furnished to the Company within a
reasonable time after such assignment, (b) the Company is, within a reasonable
time after such transfer or assignment, furnished with written notice of (i) the
name and address of such transferee or assignee and (ii) the securities with
respect to which such registration rights are being transferred or assigned, (c)
immediately following such transfer or
10
assignment the further disposition of such securities by the transferee or
assignee is restricted under the Securities Act and applicable state securities
laws, and (d) at or before the time the Company received the written notice
contemplated by clause (b) of this sentence the transferee or assignee agrees in
writing with the Company to be bound by all of the provisions contained herein.
In the event of any delay in filing the Registration Statement as a result of
such assignment, the Company shall not be liable for any damages arising from
such delay.
Section 4.2 Amendment and Modification; Waiver of Compliance; Conflicts.
(a) This Agreement may be amended only by a written instrument duly
executed by Greystone and Xxxxxx.
(b) Except as otherwise provided in this Agreement, any failure of any of
the parties to comply with any obligation, covenant, agreement or condition
herein may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
Section 4.3 Notices.
Any notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal of receipt)
and shall be in writing and delivered personally or sent by telex or telecopy
(with such telex or telecopy confirmed promptly in writing sent by first class
mail), or first class mail, or other similar means of communication, as follows:
All such communications shall be deemed to have been given, delivered or
made when so delivered by hand or sent by telex (answer back received) or
facsimile, or five business days after being so mailed.
Section 4.4 Headings.
The section and paragraph headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 4.5 LITIGATION.
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF ANY BREACH OF THIS AGREEMENT, THE
NON-BREACHING PARTY WOULD BE IRREPARABLY HARMED AND COULD NOT BE MADE WHOLE BY
MONETARY DAMAGES, AND THAT, IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE
ENTITLED AT LAW OR IN EQUITY, THE PARTIES SHALL BE
11
ENTITLED TO SUCH EQUITABLE OR INJUNCTIVE RELIEF AS MAY BE APPROPRIATE. EACH
PARTY AGREES THAT JURISDICTION AND VENUE WILL BE PROPER IN NEW YORK AND WAIVES
ANY OBJECTIONS BASED UPON FORUM NON CONVENIENS. EACH PARTY WAIVES PERSONAL
SERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION
OR PROCEEDING SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF
SERVED BY REGISTERED OR CERTIFIED MAIL TO THE PARTY AT THE ADDRESS SET FORTH IN
THIS AGREEMENT, OR AS OTHERWISE PROVIDED BY THE LAWS OF THE STATE OF NEW YORK OR
THE UNITED STATES. THE CHOICE OF FORUM SET FORTH IN THIS SECTION 4.5 SHALL NOT
BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN ANY OTHER
FORUM OR THE TAKING OF ANY ACTION UNDER THIS AGREEMENT TO ENFORCE SAME IN ANY
OTHER APPROPRIATE JURISDICTION.
Section 4.6 No Strict Construction.
The language used in this Agreement will be deemed to be the language
chosen by the parties hereto to express their mutual intent, and no rule of
strict construction will be applied against any person.
Section 4.7 Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
12
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
duly executed as of the date first above written.
XXXXXX TECHNOLOGIES, INC.
------------------------------
By: Xxxxx Xxxxxx
Title: CEO
GREYSTONE FUNDING ORPORATION
------------------------------
By: Xxxxxxx Xxxxxxxxx
Title: President
13
