Exhibit 4(v)
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REGISTRATION RIGHTS AGREEMENT
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THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of June 25,
1999 by and among XXXX TECHNOLOGY, INC., a Delaware corporation (the
"Company"), XXXXXXX X. XXXXXX, a resident of the State of Tennessee ("Xxxxxx"),
XXXXXXX X. XXXXXX, a resident of the State of Tennessee ("Martin"), LANDOAK
SECURITIES, LLC, a Tennessee limited liability company ("LandOak") (Xxxxxx,
Xxxxxx and LandOak are collectively referred to herein as the "Initial
Investors"), such other persons that may become parties to this Agreement from
time to time (the "Investors") pursuant to the Company's offering of its
securities (the "Offering") upon the terms set forth in that certain private
placement memorandum dated May 21, 1999 (the "Memorandum") (Atkins, Martin,
LandOak and the Investors are collectively referred to herein as the
"Purchasers"), and such other persons that may become parties to this Agreement
from time to time by reason of the transfer of rights pursuant to Section 9
hereof (collectively the "Transferees").
WITNESSETH:
WHEREAS, the Initial Investors have executed and delivered to the Company
that certain Letter Agreement dated April 26, 1999 (the "Purchase Agreement")
pursuant to which they agreed to purchase shares of the Company's common stock
(the "Common Stock");
WHEREAS, the Company is conducting the Offering to the Investors upon the
terms set forth in the Memorandum;
WHEREAS, as an inducement to and condition of Xxxxxx, Xxxxxx and LandOak
consummating the acquisition contemplated in the Purchase Agreement (the
"Acquisition") and the Investors participation in the Offering, the Company
agreed to provide the Purchasers and certain transferees certain rights to cause
the registration under the Securities Act of 1933 of offers and sales of Common
Stock held by such persons.
NOW, THEREFORE, in consideration of the recitals made above and the mutual
covenants and agreements stated herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following meanings:
(a) "Acquisition" shall have the meaning set forth in the recitals above,
(b) "Best Efforts" means the taking of all commercially reasonable steps
to cause or prevent any event or condition which would have been taken in
similar circumstances by a reasonably prudent business person engaged in a
similar business for the advancement or
protection of his own economic interest in light of the consequences of failure
to cause or prevent the occurrence of such event or condition.
(c) "Closing" means the closing of the Acquisition pursuant to the
Purchase Agreement.
(d) "Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
(e) "Common Stock" means the shares of Common Stock of the Company,
no par value per share.
(f) "Company" shall have the meaning set forth in the preface hereof.
(g) "Form S-3" means a registration statement on Form S-3 adopted by
the Commission under the Securities Act or any substantially similar form from
time to time in effect.
(h) "Holder" means any holder of outstanding Registrable Securities
which have not been sold to the public, but only if such holder is the Purchaser
or lawful Transferee.
(i) "Material Adverse Event" means an occurrence having a consequence
that either (a) is materially adverse as to the business, properties, prospects
or financial condition or the market for the securities of the Company or (b)
is reasonably foreseeable, has a reasonable likelihood of occurring, and if it
were to occur might materially adversely affect the business, properties,
prospects or financial condition of the Company.
(j) "Purchase Agreement" has the meaning set forth in recitals above.
(k) "Purchasers" has the meaning set forth in the preface above.
(l) "Register," "Registered" and "Registration" refer to a
registration of the offer and sale of securities pursuant to the Securities Act
effected by preparing and filing a Registration Statement (hereinbelow defined)
in compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
(m) "Registrable Securities" means the shares of Common Stock held by
the Purchasers, or acquired by or issued to any Transferee, including shares of
Common Stock or shares or units of other securities issued pursuant to any
stock split, stock dividend, reorganization, recapitalization, reclassification,
or other distribution or change in respect of the shares of Common Stock of the
Company.
(n) "Registration Expenses" means all expenses excluding Selling
Expenses incurred by the Company in effecting any Registration pursuant to this
Agreement and in complying with Section 2, Section 3 and Section 4 of this
Agreement, including, without limitation, all
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registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company and reasonable fees and
disbursements of a single special counsel for the Holders (if different from the
Company's counsel), blue sky fees and expenses, and the expense of any special
audits incident to or required by any such registration (but excluding the
compensation of regular employees of the Company which shall be paid in any
event by the Company).
(o) "Registration Statement" means a registration statement on a
form prescribed by the Commission for use in registering the offer and sale of
securities under the Securities Act.
(p) "Securities Act" means the Securities Act of 1933, as amended,
or any similar federal statute and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
(q) "Selling Expenses" means all underwriting discounts, selling
commissions and stock transfer taxes applicable to the sale of Registrable
Securities pursuant to this Agreement.
(r) "Transferee" has the meaning set forth in the preface above.
(s) "Underwritten Offering" means a registered public offering of
Registrable Securities pursuant to an underwriting agreement with an investment
banking firm reasonably acceptable to the Company.
2. Demand Registration.
2.1 Request for Registration.
(a) Subject to exceptions and limitations as hereinafter provided, at
any time after the Closing, any Holder or group of Holders holding, in the
aggregate, at least fifty-one percent (51%) of the Registrable Securities at the
time of any Demand may make a single, one time written request (a "Demand") that
the Company file with the Commission a Registration Statement in respect of all,
but not less than all, Registrable Securities then held by such Holder(s) at the
time of such Demand. Upon receipt of a Demand, the Company shall as soon as
practicable cause a Registration Statement to be filed with the Commission on
Form S-3, if available, or, if Form S-3 is not available for the Registration of
the Registrable Securities, on such form as may be prescribed by the Commission.
If the Registration is not in connection with an Underwritten Offering pursuant
to Section 2.4 below, then such Registration Statement shall contain all
appropriate undertakings necessary to comply with Rule 415 under the Securities
Act pertaining to "shelf registration" or delayed offerings of securities. The
Company shall use its Best Efforts to cause the Commission to declare such
Registration Statement effective and, if a Registration subject to Rule 415, to
maintain the effectiveness of such Registration Statement for a period of one
(1) year. Should any Holder or group of Holders holding, in the aggregate, at
least fifty-one percent (51%) of the Registrable Securities make a Demand within
one (1) year of the Closing, such Holder or Holders shall bear all costs
associated with such Registration.
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(b) Upon receipt of any Demand, the Company shall immediately give notice
to all other Holders that such Demand has been received. Upon receipt of such
notice, the Piggyback Registration Rights of such Holders described in Section 3
hereof shall vest and be exercisable, subject to the exceptions and limitations
expressed herein.
2.2 Registration of Other Securities in Demand Registration. Any
Registration Statement filed pursuant to the Demand of a Holder pursuant to
Section 2.1 above may, subject to the provisions hereof, including, without
limitation, Section 3.2 include securities of the Company other than Registrable
Securities whether held by the Holders or other Shareholders.
2.3 Blue Sky in Demand Registration. In the event of any Registration
pursuant to this Section 2, the Company shall use its Best Efforts to register
and/or qualify the securities covered by the Registration Statement under such
other securities or Blue Sky laws of such jurisdictions as shall be reasonably
requested by the Holders and as may be reasonably appropriate for the
distribution of such securities, provided, however, the Company shall not be
required to register and/or qualify such securities in more than three (3) such
jurisdictions that require filing.
2.4 Underwritten Offering Pursuant to Demand Registration. The Holder(s)
making a Demand shall be entitled to engage an underwriter reasonably acceptable
to the Company to offer and sell in an Underwritten Offering the Registrable
Securities included in any Registration Statement filed pursuant to Section 2.1
hereof. In such event, the Company and each participating Holder shall enter
into an underwriting agreement with such underwriter(s), in customary form
reasonably acceptable to the Company and the Holders, providing for, among other
things, the sale of the Registrable Securities included in such Registration
Statement by the Holders thereof to the underwriter(s), and containing such
representations, warranties and covenants of the Company, including the
procurement of opinions of counsel and accountants' "comfort letters" and the
delivery of such certificates of executive officers of the Company, as shall be
customary in Underwritten Offerings.
2.5 Limitation of Number of Shares or Securities in Underwritten Offering.
In the event the representative of the underwriters in any Underwritten Offering
pursuant to Section 2.4 shall advise the Holder making the Demand pursuant to
Section 2.1 in writing that marketing or other factors (including, without
limitation, the aggregate number of shares or securities requested to be
included in the Underwritten Offering, the general condition of the market, and
the status of the persons proposing to sell securities in such Underwritten
Offering) require a limitation of the number of shares to be offered and sold in
the Underwritten Offering, then the securities to be excluded from the
Underwritten Offering shall be determined in the following order: (i) first,
securities held by persons who are not contractually entitled to include
securities in the Registration; (ii) second, securities included in the
Registration by the Company for initial offering and issuance; (iii) third,
securities included in the Registration pursuant to the exercise of Piggyback
Registration Rights pursuant to Section 3 hereof; and (iv) finally, securities
included in the Registration pursuant to this Section 2. Any partial reduction
in the number of shares or securities included in the Underwritten Offering
affecting any of the four (4) classes set forth in the immediately preceding
sentence shall be allocated among the persons in any such
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class pro rata, as nearly as practicable, based on the number of shares or
securities held by each person in such class and included in the Registration as
a percentage of the aggregate shares or securities held by all persons in such
class and included in the Registration.
2.6 Other Obligations in Connection with Underwritten 0ffering. In
connection with such Underwritten Offering, the Company shall (i) provide to a
single counsel for the Holders whose Registrable Securities are included in
such underwritten offering, for such counsel's review and comment, drafts of the
registration statement; (ii) provide such counsel with a reasonable number of
executed copies of the registration statement and all amendments thereto, as
filed, as well as a reasonable number of preliminary prospectuses used by the
underwriters in such underwritten offering; (iii) give prompt notice to such
counsel of the effectiveness of such registration statement and of any stop
order issued by the Commission or proceeding, or threat of such a proceeding, by
the Commission for the purpose of issuing a stop order or otherwise suspending
the effectiveness of any registration statement; (iv) provide to the Holders a
reasonable number of final prospectuses delivered to purchasers under the
Securities Act; and (v) for such period for which prospectuses are required to
be delivered by dealers, provide such dealers with an adequate number of final
prospectuses in order to permit the dealers to comply with their obligations
under the Securities Act. In all other regards, the Company agrees to comply
with the requirements of the Securities Act in connection with any underwritten
offering.
3. Piggyback Registration.
3.1 Notice of Piggyback Registration. Subject to the exceptions and
limitations contained herein, if, at any time or from time to time, the Company
shall Register any of its securities, either for its own account or the account
of a security holder or holders other than (i) a Registration relating solely to
employee benefit or stock option plans, or (ii) a Registration relating solely
to a transaction described in Rule 145 under the Securities Act, the Company
will: (i) promptly give to each Holder written notice thereof (which notice
shall include a list of jurisdictions in which the Company intends to attempt to
qualify such securities under applicable Blue Sky or other state securities
laws), and (ii) include in such Registration (and any related registration
and/or qualification under the applicable Blue Sky or other state securities
laws), and in any Underwritten Offering pursuant to such Registration, all
Registrable Securities specified in a written request or requests delivered to
the Company by any Holder within twenty (20) days after receipt of such written
notice from the Company by such Holder.
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3.2 Piggyback Registration in Underwritten Offerings.
(a) Notice of Underwritten Offering. If the Registration of which the
Company gives notice is for an Underwritten Offering commenced at the election
of the Company (and not pursuant to the exercise of rights pursuant to Section 2
hereof), the Company shall so advise the Holders as a part of the written notice
given pursuant to Section 2.1(b). In such event, the right of any Holder to
Registration shall be conditioned upon there being an Underwritten Offering, and
the inclusion of such Holder's Registrable Securities in such Registration and
Underwritten Offering to the extent provided in and in compliance with this
Section 3. All Holders proposing to distribute their securities through such
Underwritten Offering shall (together with the Company and any other holders
distributing securities through such underwriting) enter into an underwriting
agreement described in Section 2.4. The Holders shall have no right to
participate in the selection of underwriters for an offering pursuant to this
Section.
(b) Marketing Limitation in Piggyback Registration. In the event the
representative of the underwriters in any Underwritten Offering advises the
Holders seeking Registration of Registrable Securities pursuant to this Section
3 in writing that market factors (including, without limitation, the aggregate
number of shares of Common Stock requested to be Registered, the general
condition of the market, and the status of the persons proposing to sell
securities in the Underwritten Offering) require a limitation of the shares to
be offered and sold in the Underwritten Offering, then the number of shares to
be excluded from the Underwritten Offering shall be determined in the manner
provided in Section 2.5, except that securities included in the Registration by
the Company for initial offering and issuance and securities included in the
Registration by the Holders pursuant to this Section 3 shall be excluded
together on a pro rata basis.
(c) Withdrawal in Piggyback Registration. If any Holder who shall exercise
piggyback registration rights pursuant to this Section 3 shall disapprove of the
proposed terms of any Underwritten Offering, he may elect to withdraw therefrom
by written notice to the Company and the underwriters delivered no more than two
(2) days after the receipt of the final terms and price of the Registration
Statement by such Holder. Any Registrable Securities or other securities
excluded or withdrawn from such Underwritten Offering shall be withdrawn from
such Registration.
3.3 Blue Sky in Piggyback Registration. In the event of any Registration
of Registrable Securities pursuant to Section 3, the Company will use its best
efforts to register and/or qualify the securities covered by the Registration
Statement under such other securities or Blue Sky laws of such jurisdictions as
shall be reasonably appropriate for the distribution of such securities;
provided, however, that notwithstanding anything in this Agreement to the
contrary, in the event any jurisdiction in which the securities shall be
qualified imposes a non-waivable requirement that expenses incurred in
connection with the qualification of the securities be borne by selling
shareholders, the Holders shall pay their pro rata share of such expenses.
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3.4 Right to Terminate Registration. The Company shall have the right to
terminate or withdraw any Registration initiated by it that triggers piggyback
registration rights pursuant to this Section 3, whether or not any Holder has
elected to include securities in such registration.
4. Limitations on Subsequent Registration Rights. From and after the date
of this Agreement, the Company shall not enter into any agreement granting any
holder or prospective holder of any securities of the Company registration
rights with respect to such securities without the prior written consent of a
majority of the Registrable Securities then outstanding (on a Common Stock
equivalent basis) unless such new registration rights, including standoff
obligations, are subordinate to the registration rights granted the Holders
hereunder and would not have the effect of reducing the amount of Registrable
Securities which are included in any Registration for which the Holders hold
registration rights pursuant to this Agreement. If the Holders of a majority of
the Registrable Securities do not object to such new registration rights within
seven (7) days of delivery of written notice of such new registration rights to
such Holders, such new registration rights shall be approved.
5. Expenses of Registration. All Registration Expenses incurred in
connection with any registration pursuant to Section 2 and Section 3 and the
reasonable cost of one special legal counsel to represent all of the Holders
together in any such registration shall be borne by the Company, provided that
the Company shall not be required to pay the Holders' counsel fees in respect of
any Registration begun pursuant to Section 2.1, the request of which has been
subsequently withdrawn by the Holders making the Demand for such Registration.
Notwithstanding the foregoing, however, if at the time of the withdrawal, the
Holders have learned of a Material Adverse Event with respect to the Company
since the time of their Demand, of which the Company had knowledge at the time
of the Demand, then the Company shall pay the fees of such single counsel. All
Selling Expenses shall be allocated among the persons participating in any
Registration based, in an Underwritten Offering, on the relative gross proceeds
allocable to each such person and, in a non-Underwritten Offering, based on the
Selling Expenses actually incurred with respect to the sale of Registrable
Securities of each person whose shares were included in the Registration.
Notwithstanding the foregoing, all Registration Expenses incurred in connection
with any registration pursuant to Section 2 on or before May 1, 2000 shall be
borne by the Holders.
6. Registration Procedures. The Company will keep each Holder whose
Registrable Securities are included in any Registration pursuant to this
Agreement advised in writing as to the initiation and completion of such
registration. The Company shall cause any registration statement filed pursuant
to Section 2.1 hereof to comply with the requirements of Rule 415 (unless such
registration statement relates to an Underwritten Offering pursuant to Section
2.4 hereof) and shall use its best efforts to comply with the undertakings
required thereby to qualify the registration as a "shelf registration" pursuant
to Rule 415. At its expense, the Company shall: (a) use its best efforts to keep
such Registration Statement effective for the lesser of one (1) year or so long
as Holders who are not affiliates of the Company whose Registrable Securities
are included in the Registration Statement are subject to the volume or manner
of resale restrictions set forth in Rule 144 under the Securities Act or until
the Holder or Holders have completed the distribution described in the
Registration Statement relating thereto,
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whichever first occurs; (b) furnish such number of prospectuses (including
preliminary prospectuses) and other documents as a Holder from time to time
reasonably may request; (c) prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement; (d) notify each seller of
Registrable Securities covered by such registration statement 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, as then in effect, includes an untrue statement
of a material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or incomplete
in the light of the circumstances then existing, and at the request of any such
seller, prepare and furnish to such seller a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such shares, 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 or incomplete in the light of the circumstances then existing; (e)
cause all such Registrable Securities registered pursuant hereunder to be listed
on each securities exchange or automated quotation service (including the
National Market of The NASDAQ Stock Market) on which similar securities issued
by the Company are then listed; (f) provide a transfer agent and registrar for
all Registrable Securities registered pursuant to such registration statement
and a CUSIP number for all such Registrable Securities, in each case not later
than the effective date of such registration; and (g) otherwise use its best
efforts to comply with all applicable rules and regulations of the Commission,
and make available to its security holders, as soon as reasonably practicably,
an earnings statement covering the period of at least twelve months, but not
more than eighteen months, beginning with the first month after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
7. Information Furnished by Holder. It shall be a condition precedent to
the Company's obligations under this Agreement that each Holder of Registrable
Securities included in any Registration timely furnish to the Company such
information regarding such Holder and the distribution proposed by such Holder
or Holders as the Company may reasonably request in writing and as shall be
reasonably required.
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8. Indemnification.
8.1 Company's Indemnification of Holders. The Company shall indemnify and
hold harmless each Holder, each of its agents, legal counsel and accountants and
each (i) person controlling such Holder within the meaning of Section 15 of the
Securities Act ("Controlling Person"); and (ii) each underwriter and each
Controlling Person of such underwriter, with respect to which Registration,
qualification or compliance of Registrable Securities has been effected pursuant
to this Agreement against all claims, losses, damages, expenses or liabilities
(or actions in respect thereof) to the extent such claims, losses, damages,
expenses or liabilities (or actions, proceedings or settlements in respect
thereto) arise out of or are based upon any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus or other document
(including any related Registration Statement notification or the like) incident
to any such Registration, qualification or compliance, are based on 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, or any
violation by the Company of the Securities Act or any rule or regulation
promulgated under the Securities Act applicable to the Company and relating to
action or inaction required of the Company in connection with any such
Registration, qualification or compliance; and the Company will reimburse each
such indemnified party and each Controlling Person, for any legal and any other
expenses reasonably incurred in connection with investigating, defending or
settling any such claim, loss, damage, liability or action; provided, however,
that the indemnity contained in this Section 6.1 shall not apply to amounts paid
in settlement of any such claim, loss, damage, liability or action if settlement
is effected without the consent of the Company; and provided, further, that the
Company will not be liable in any such case to the extent that any such claim,
loss, damage, liability or expense arises out of or is based upon any untrue
statement or omission based upon written information furnished to the Company by
such Underwriter, Holder or Controlling Person of such Underwriter or Holder and
stated to be specifically for use therein, in which case such Underwriter,
Holder or Controlling Person of such Underwriter or Holder shall likewise
indemnify the Company, its Controlling Persons and each of its agents, legal
counsel and accountants.
8.2 Indemnification Procedure. Promptly after receipt by an indemnified
party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof and generally summarize such action. The
indemnifying party shall have the right to participate in and to assume the
defense of such claim; provided, however, that the indemnifying party shall be
entitled to select counsel for the defense of such claim with the approval of
any parties entitled to indemnification, which approval shall not be
unreasonably withheld; provided further, however, that if either party
reasonably determines that there may be a conflict between the position of the
Company and the Holders in conducting the defense of such action, suit or
proceeding by reason of recognized claims for indemnity under this Section 8,
then counsel for such party shall be entitled to conduct the defense to the
extent reasonably determined by such counsel to be necessary to protect the
interest of such party. The failure to notify an indemnifying party promptly of
the commencement of any such action, if prejudicial to the ability of the
indemnifying party to defend such action, shall relieve such indemnifying party,
to the extent so prejudiced, of any
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liability to the indemnified party under this Section 8, but the omission so to
notify the indemnifying party will not relieve such party of any liability that
such party may have to any indemnified party otherwise other than under this
Section 8.
9. Transfer of Rights. The rights granted to Holders pursuant to this
Agreement to cause the Company to Register the Registrable Securities may be
transferred or assigned by the Holder to a transferee or assignee of such
Holder's Registrable Securities.
10. Market Stand-off.
10.1 Restrictions on Holders. In consideration of the granting to the
Purchasers of the registration rights pursuant to this Agreement, each of them
agrees that, for so long as such Holder holds Common Stock, except as permitted
by Section 2 and Section 3 hereof, such Holder will not sell, transfer or
otherwise dispose of, including, without limitation, through the use of any put
or call option, short sale or other derivative arrangement, shares of Common
Stock in the ten days prior to the effectiveness of any Registration Statement
(other than a registration statement on Form S-8 or Form S-4, or any successor
form) with respect to shares of Common Stock pursuant to which such Common Stock
will be offered for sale to the public, and for up to 90 days following the
effectiveness of such Registration Statement, provided that (i) the underwriters
of any such offering shall reasonably request that the Stockholders be bound by
such restrictions and (ii) all directors, executive officers and holders of more
than five percent of the outstanding shares of Common Stock agree to
restrictions that are at least as burdensome as those imposed on such Holders.
10.2 Restrictions on the Company. Except for offers to sell and sales of
Common Stock pursuant to a Registration Statement on Form S-8 or Form S-4, the
Company shall not offer to sell or sell any shares of capital stock or any
security convertible into shares of Common Stock during the 90-day period
immediately following commencement of an Underwritten Offering of Registrable
Securities pursuant to Section 2.4 hereof.
11. Miscellaneous.
11.1 Assignment. Except as otherwise provided in this Agreement, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the parties to this Agreement.
11.2 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties to this Agreement, and
their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
11.3 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Tennessee in the United States of America without
giving effect to the conflicts of laws principles thereof.
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11.4 Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
11.5 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be given by registered or
certified mail, return receipt requested, postage prepaid, by telecopier or by
national overnight delivery service, and addressed to the intended recipient as
set forth below:
If to the Company:
Xxxx Technology, Inc.
x/x Xxxxxxx X. Xxxx
0000 Xxxxxxxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to Purchaser:
LandOak Securities LLC
c/o Xxxxxxx X. Xxxxxx
00000 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Any notice given in the manner aforesaid shall be deemed to have been served,
and shall be effective for all purposes hereof if sent by registered or
certified mail, on the earlier of the second day following the day on which it
is posted or the date of its receipt by the party to be notified, if sent by
telecopier, the day actually received as evidenced by a written receipt of
transmission and if sent by overnight delivery service, the day after such
notice has been delivered by the party to said service. Any Party may change the
address to which notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Party notice in the manner
herein set forth
11.6 Severability. If one or more provisions of this Agreement are held to
be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
11.7 Amendment and Waiver. Any provision of this Agreement may be amended
or waived with the written consent of the Company and the Holders of at least a
majority of the outstanding shares of the Registrable Securities, so long
as the effect is to treat all Holders equally, provided, however, that the
consent of the Initial Investors is required for any such amendment or waiver,
which consent shall not be unreasonably withheld. Any amendment or waiver of
this Agreement shall require the written consent of any Holder who is
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disproportionately adversely affected by such amendment or waiver. Any amendment
or waiver effected in accordance with this paragraph shall be binding upon each
Holder of Registrable Securities and the Company. In addition, the Company may
waive performance of any obligation owing to it, as to some or all of the
Holders of Registrable Securities, or agree to accept alternatives to such
performance, without obtaining the consent of any Holder of Registrable
Securities. In the event that an underwriting agreement is entered into between
the Company and any Holder, and such underwriting agreement contains terms
differing from this Agreement, as to any such Holder the terms of such
underwriting agreement shall govern.
11.8 Effect of Amendment or Waiver. The Purchasers and their successors
and assigns acknowledge that by the operation of Section 3.7 of this Agreement
the holders of a majority of the outstanding Registrable Securities, acting in
conjunction with the Company, will have the right and power to diminish or
eliminate any or all rights or increase any or all obligations pursuant to this
Agreement.
11.9 Rights of Holders. Each holder of Registrable Securities shall have
the absolute right to exercise or refrain from exercising any right or rights
that such holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such holder shall not incur any liability to any other
holder of any securities of the Company as a result of exercising or refraining
from exercising any such right or rights.
11.10 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
XXXX TECHNOLOGY, INC.
By: /s/
--------------------------------
Xxxxxxx X. Xxxx, President
/s/
-----------------------------------
Xxxxxxx X. Xxxxxx
/s/
-----------------------------------
Xxxxxxx X. Xxxxxx
LANDOAK SECURITIES, LLC
By: /s/
--------------------------------
Xxxxxxx X. Xxxxxx, Chief Manager
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