EXHIBIT 99.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of
____________, 2000, between xxxxx.xxx, Inc., a Georgia corporation located at
0000 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (the "Company"), and the
undersigned investors (each an "Investor" and collectively, the "Investors").
WHEREAS, the Company will issue and sell units to Investors consisting
of four shares of 8% cumulative convertible preferred stock and a warrant to
purchase two shares of common stock (the "Units") pursuant to Subscription
Agreements between the Company and each Investor (collectively, the
"Subscription Agreements"); and
WHEREAS, in connection with the execution of the Subscription
Agreements, the Investors have requested and the Company has agreed to grant to
the Investors certain registration rights on the terms set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the
following meanings:
1.1 Closing Date means the date of closing of the Private
Placement.
1.2 Common Stock means the Common Stock, par value $.01 per
share, of the Company and any capital stock for or into which such Common Stock
hereafter is exchanged, converted, reclassified or recapitalized by the Company
pursuant to a business combination to which the Company is a party.
1.3 Exchange Act means the Securities Exchange Act of 1934.
1.4 Form S-3 means such form under the Securities Act as in
effect on the date hereof or any registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
1.5 Holder means that Investor or those Investors who hold
Registrable Securities or any permitted assignee of Registrable Securities.
1.6 Person means any individual, firm, corporation, or other
entity, and shall include any successor (by merger or otherwise) of such
entity.
1.7 Preferred Stock means the Series A Preferred Stock of the
Company.
1.8 Private Placement means the issuance of Units pursuant to the
Subscription Agreements.
1.9 Register, registered and registration refers 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 of effectiveness of such registration statement or document.
1.10 Registrable Securities means (i) the shares of Common Stock
issuable or issued upon conversion of the Preferred Stock and the exercise of
the warrants, and (ii) any other shares of Common Stock issued as (or issuable
upon the conversion or exercise of any warrant, right or other security which
is issued as) a dividend or other distribution with respect to, or in exchange
for or in replacement of, the shares listed in (i); provided, however, that the
foregoing definition shall exclude in all cases any Registrable Security sold
by a Person in a transaction in which his or her rights under this Agreement
are not assigned pursuant to Section 9. Notwithstanding the foregoing, Common
Stock shall only be treated as Registrable Securities if and so long as they
have not been (a) sold to or through a broker or dealer or underwriter in a
public distribution or a public securities transaction, or (b) sold in a
transaction exempt from the registration and prospectus delivery requirements
of the Securities Act under Section 4(1) thereof so that all transfer
restrictions, and restrictive legends with respect thereto, if any, are removed
upon the consummation of such sale.
1.11 SEC means the Securities and Exchange Commission.
1.12 Securities Act means the Securities Act of 1933 and the rules
and regulations thereunder.
2. REGISTRATION RIGHTS.
2.1 Form S-3 Registration. The Company shall prepare and file
with the SEC a Form S-3 registration statement covering the Registrable
Securities no later than 60 days after the Closing Date (the "Shelf
Registration Statement"). The Company shall use its reasonable efforts to have
the Shelf Registration Statement declared effective as soon as reasonably
practicable following the filing thereof, and to keep such registration
statement continuously effective under the Securities Act until the earlier of
(a) the date on which the Holders no longer hold any Registrable Securities or
(b) the date on which all of the Registrable Securities held or subsequently
held by the Holders may be resold in a public transaction without registration
under the Act, including, but not limited to, pursuant to Rule 144 under the
Act.
2.2 "Piggy Back" Registration.
a. If the Company proposes to file a registration
statement at any time during the six months following the termination of the
Private Placement with respect to any class of equity securities of the
Company, whether for its own account (other than in connection with a
registration statement on Form S-4 or S-8 (or any successor or substantially
similar forms), or a registration statement filed in connection with an
exchange offer or offering of securities solely to the Company's existing
shareholders), or for the account of a holder of securities of the Company,
then the Company shall in each case give prompt written notice of such proposed
filing to all Holders of Registrable Securities at least 15 days before the
anticipated filing date of any such registration statement by the Company, and
such notice shall offer to all Holders the opportunity to have any or all of
the Registrable Securities held by such Holders included in such registration
statement. Each Holder of Registrable Securities desiring to have its
Registrable Securities registered under this Section 2.2 shall so advise the
Company in writing within 10 days after date of receipt of such notice (which
request shall set forth the amount of Registrable Securities for which
registration is requested), and the Company shall include in such registration
statement all such Registrable Securities so requested to be
2
included therein subject to the limitations set forth in Section 6 hereof.
Under no circumstances shall the rights and obligations set forth in this
Section 2.2 apply to any registration statement filed by the Company after six
months following the termination of the Private Placement.
b. Nothing in this Section 2.2 shall create any
liability on the part of the Company or any other person to the Holders if the
Company or any other person should, for any reason, decide not to file a
registration statement proposed to be filed pursuant to Section 2.2 or to
withdraw such registration statement subsequent to its filing, regardless of
any action whatsoever that a Holder may have taken, whether as a result of the
issuance by the Company of any notice under Section 2.2 or otherwise.
2.3 Limitations on Obligations to Register.
a. Subject to the provisions of this Section 2.3, the
Company shall be entitled to postpone or suspend the filing, effectiveness,
supplementing or amending of any registration statement otherwise required to
be prepared and filed pursuant to this Section 2, if the Company has
determined, in good faith and in the exercise of reasonable judgment, that such
action would materially delay or interfere with any material financing,
acquisition, corporate reorganization, or other transaction involving the
Company then pending or contemplated. Holder agrees to promptly execute and
deliver a confidentiality agreement in form and substance reasonably acceptable
to the Company in connection with any disclosures the Company is required to
make under this paragraph.
b. If, after a registration statement becomes
effective, the Company advises the Holders that the Company considers it
appropriate for the registration statement to be amended, the Holders shall
suspend any further sales of their registered shares until the Company advises
them that the registration statement has been properly amended. The notice by
the Company will include the Company's estimate of the length of the suspension
or postponement. Upon receipt of such notice, each Holder agrees to cease such
Holder's disposition of Registrable Securities pursuant to such registration
statement during such suspension period. The Company will give prompt notice to
the Holders of the expiration or early termination of any suspension or
postponement pursuant to this Section 2.3.
2.4 Obligations of the Company. Whenever required under this
Agreement to effect the registration of any Registrable Securities (and except
as specifically provided otherwise elsewhere in this Agreement), the Company
will use commercially reasonable efforts to do the following:
a. Prepare and file with the SEC a registration
statement with respect to the Registrable Securities and use commercially
reasonable efforts to cause such registration statement to become effective,
and, with respect to the Shelf Registration Statement, keep such registration
effective as set forth in Section 2.1.
b. Prepare and file with the SEC 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.
3
c. Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Securities Act, and such other documents as they may
reasonably request in order to facilitate the disposition of Registrable
Securities owned by them.
d. Use commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or "blue sky" laws of such jurisdictions as the Holders shall
reasonably request; provided, however, that the Company shall not be required
to register and qualify such securities in more than 10 states and shall not be
required to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions.
e. In the event of any underwritten public offering,
enter into and perform its obligations under an underwriting agreement, in
usual and customary form, with the managing underwriter of such offering. Each
Holder participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
f. Notify each Holder 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 that causes the prospectus included in such registration statement to
contain 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 in the light of the circumstances then existing, such obligation
to continue until the earlier of (i) the sale of all Registrable Securities
registered pursuant to the registration statement of which such prospectus
forms a part or (ii) withdrawal of such registration statement.
g. Promptly notify the Holders of Registrable
Securities covered by such registration statement (i) when the registration
statement has become effective; (ii) when any post-effective amendment to the
registration statement becomes effective; and (iii) of any request by the SEC
for any amendment or supplement to the registration statement or prospectus or
for additional information.
h. Notify each Holder of Registrable Securities if at
any time the SEC should institute or threaten to institute any proceedings for
the purpose of issuing, or should issue, a stop order suspending the
effectiveness of the registration statement. Upon the occurrence of any of the
events mentioned in the preceding sentence, the Company will use its best
efforts to prevent the issuance of any such stop order or to obtain the
withdrawal thereof as soon as possible. The Company will advise each Holder of
Registrable Securities promptly of any order or communication of any public
board or body addressed to the Company suspending or threatening to suspend the
qualification of any Registrable Securities for sale in any jurisdiction.
i. As soon as practicable after the effective date of
the registration statement, and in any event within 16 months thereafter, have
"made generally available to its security holders" (within the meaning of Rule
158 under the Securities Act) an earning statement (which need not be audited)
covering a period of at least 12 months beginning after
4
the effective date of the registration statement and otherwise complying with
Section 11 (a) of the Securities Act.
j. Use commercially reasonable efforts to cause the
transfer agent to remove restrictive legends on certificates representing the
Registrable Securities, as appropriate.
k. Use commercially reasonable efforts to have the
Registrable Securities listed on the same quotation system or market as the
Common Stock.
2.5 Termination of Registration Rights. No Holder shall be
entitled to exercise any right provided for in this Agreement (except Section 7
hereof) (i) during such times as Rule 144 or another similar exemption under
the Securities Act is available for the sale of all of such Holders shares
during a three month period without registration and (ii) if such Holder holds
less than one percent of the Company's outstanding Common Stock on a fully
diluted basis (assuming the exercise of all options and warrants and conversion
of all convertible securities into Common Stock).
2.6 Registration Rights of Company. The Company shall be entitled
to include in any registration statement referred to in this Section 2 shares
of Common Stock to be sold by the Company for its own account or other existing
shareholders for their own account.
2.7 Delay of Registration. No Holder shall have any right to
obtain or seek an injunction restraining or otherwise delaying any registration
under Section 2 as the result of any controversy that might arise with respect
to the interpretation or implementation of the provisions of this Agreement.
3. FURNISH INFORMATION. A condition precedent to the obligations of the
Company to take any action pursuant to this Agreement with respect to the
Registrable Securities of any selling Holder is that such Holder furnishes to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as is required
to effect the registration of such Holder's Registrable Securities. Any such
information included in the draft of the registration statement shall be
provided to the Company within any reasonable time period requested by the
Company.
4. LOCK-UP PERIOD. Each Holder agrees that it will not sell or otherwise
transfer or dispose of any Common Stock registered on the Shelf Registration
Statement except in accordance with the following schedule: no more than 50% of
the shares during the 120 day period following termination of Private Placement
and an additional 50% of the shares on or after the 180th day following
termination of the Private Placement.
5. EXPENSES OF REGISTRATION. The Company will pay all expenses incurred
in connection with registrations, filings or qualifications pursuant to this
Agreement, including, but not limited to, all registration, filing and
qualification fees, printers' and accounting fees, and fees and disbursements
of counsel for the Company, except that the Company will not pay (a)
underwriting discounts and commissions relating to Registrable Securities
(which the holders of the securities so registered shall bear pro rata on the
basis of the number of shares so registered), and (b) fees and expenses of
counsel to the selling Holders.
5
6. UNDERWRITING REQUIREMENTS. In connection with any offering conducted
in accordance with Section 2.2 involving an underwriting of shares being issued
by the Company, the Company shall not be required to include any Holder's
securities in such underwriting unless such Holder accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected
by it, and then only in such quantity as will not, in the opinion of the
underwriters, exceed the largest number of securities requested to be included
in such offering which can be sold without having an adverse effect on such
offering by the Company; provided, however, that no Investor participating in
such underwriting shall be required to make any representations, warranties or
indemnities except as they relate to such Investor's ownership of shares and
authority to enter into the underwriting agreement and to such Investor's
intended method of distribution, and the liability of such Investor shall be
limited to an amount equal to the net proceeds from the offering received by
such Investor. If the total number of securities proposed to be sold in the
offering, including shares proposed to be issued by the Company and Registrable
Securities requested by shareholders to be included in such offering, exceeds
the largest number of securities that the underwriters reasonably believe can
be sold without having an adverse effect on such offering, then the Company
shall be required to include in the offering only that number of such
securities, which may or may not include Registrable Securities, which the
underwriters believe will not have an adverse effect on such offering. After
the number of securities to be sold by the Company, any securities of the
Holders so included shall be allocated as follows: (i) first, among the Holders
of Registrable Securities that have elected to participate in such offering,
pro rata according to the number of Registrable Securities held by each such
Holder (or in such other proportions as shall mutually be agreed to by such
Holders), and (ii) thereafter, to the extent additional securities may be
included in such offering, to other selling shareholders, pro rata according to
the total number of securities entitled to be included therein owned by each
such other selling shareholder or in such other proportions as shall mutually
be agreed to by such other selling shareholders.
7. INDEMNIFICATION. In the event any Registrable Securities are included
in a Registration Statement under this Agreement:
7.1 Indemnification by the Company. To the extent permitted by
law, the Company will indemnify and hold harmless each Holder and each person,
if any, who controls such Holder within the meaning of the Securities Act and
the Exchange Act and their respective directors, officers, partners, employees
and affiliates (each, an "Indemnified Person"), against any losses, claims,
damages, or liabilities, joint or several, to which they may become subject
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any final prospectus contained therein or any amendments or
supplements thereto or (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, and the Company will pay to each Indemnified Person any
reasonable legal or other expenses incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section 7
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of the
Company, nor shall
6
the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon any
untrue statement or alleged untrue statement or omission or alleged omission
which occurs in reliance upon and in conformity with written information
furnished by a Holder expressly for use in connection with such registration or
is caused by any failure by the Holder to deliver a prospectus or preliminary
prospectus (or amendment or supplement thereto) as and when required under the
Securities Act after such prospectus has been timely furnished by the Company.
7.2 Indemnification by the Holder. To the extent permitted by
law, each Holder will indemnify and hold harmless the Company, each of its
directors, each of its officers who has signed the registration statement, and
each person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act, against any losses, claims, damages or
liabilities (joint or several) to which any of the foregoing persons may become
subject, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon (x) any untrue statement or
alleged untrue statement contained in, or any omission or alleged omission
from, information furnished in writing to the Company by the Holder
specifically and expressly for use in any such registration statement or
prospectus or (y) any failure by the Holder to deliver a prospectus or
preliminary prospectus (or amendment or supplement thereto) as and when
required under the Securities Act after such prospectus has been timely
furnished by the Company. Such Holder will pay any reasonable legal or other
expenses incurred by the Company, its directors, officers, shareholders and
affiliates pursuant to this Section 7.2 in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the indemnity agreement contained in this Section 7.2 shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Holder.
7.3 Notice of Claim. Promptly after receipt by an indemnified
party under this Section 7 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
7, 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 indemnifying parties; provided, however,
that an indemnified party (together with all other indemnified parties that may
be represented without conflict by one counsel) shall have the right to retain
one separate counsel, with the reasonable fees 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 (in the opinion of
counsel to the indemnifying party) 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 of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
7, but the omission so to deliver
7
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 7.
7.4 Survival of Indemnification Provision. The obligations of the
Company and the Holders under this Section 7 shall survive the completion of
any offering of Registrable Securities under a registration statement pursuant
to this Agreement, and otherwise.
8. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the
Holders the benefits of Rule 144 under the Securities Act and any other rule or
regulation of the SEC that permits the Holder to sell the Registrable
Securities to the public without registration, the Company agrees to use
commercially reasonable efforts to:
8.1 Make and keep public information available, as those terms
are understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act;
8.2 File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Securities Act and Exchange Act;
and
8.3 Furnish to any Holder, so long as the Holder owns any
Registrable Securities, promptly upon request (i) a written statement by the
Company, if true, that it has complied with the reporting requirements of SEC
Rule 144, the Act and the 1934 Act, (ii) a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
in availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration.
9. ASSIGNMENT AND REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Agreement may be assigned by a
Holder to a permitted transferee or assignee of Registrable Securities which
(a) is a subsidiary, parent, general partner, limited partner, retired partner,
affiliate, beneficial owner, member or retired member of a Holder, or (b) is a
Holder's family member or trust for the benefit of an individual Holder;
provided, however, (i) the transferor shall, within 10 days after such
transfer, furnish to the Company written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned and (ii) such transferee shall agree to
be subject to all restrictions set forth in this Agreement.
10. "MARKET STAND-OFF" AGREEMENT.
10.1 Each Holder hereby agrees that, during the period of duration
(up to, but not exceeding, 180 days) specified by the Company and an
underwriter of Common Stock or other securities of the Company, following the
effective date of a registration statement of the Company filed under the
Securities Act, it shall not, to the extent requested by the Company and such
underwriter, directly or indirectly sell, offer to sell, contract to sell
(including, without limitation, any short sale), grant any option to purchase
or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any securities of the
8
Company held by it at any time during such period except Common Stock included
in such registration; provided, however, that:
a. Such agreement shall be applicable only during the
two year period following the date of the final prospectus distributed pursuant
to the first registration statement of the Company after the date of this
Agreement which covers Common Stock (or other securities) to be sold on its
behalf to the public in an underwritten offering; and
b. All officers and directors of the Company, all one
percent security holders, and all other persons with registration rights
(whether or not pursuant to this Agreement) enter into similar agreement.
10.2 In order to enforce the foregoing covenant, the Company may
impose stop-transfer instructions with respect to the Registrable Securities of
each Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 10.
10.3 Notwithstanding the foregoing, the obligations described in
this Section 10 shall not apply to a registration relating solely to employee
benefit plans on Form S-8 or similar forms which may be promulgated in the
future, or a resignation relating solely to an SEC Rule 145 transaction on Form
S-4 or similar forms which may be promulgated in the future.
11. MISCELLANEOUS.
11.1 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia without giving
effect to conflict of laws.
11.2 Consent to Jurisdiction; Exclusive Venue. The Company and the
Holder hereby irrevocably consent to the jurisdiction of the United States
District Court for the Northern District of Georgia and all Georgia state
courts sitting in Xxxxxx County, Georgia, for the purpose of any litigation to
which the Company or the Holder may be a party and that concerns this
Agreement. It is further agreed that venue for any action shall lie exclusively
with courts sitting in Xxxxxx County, Georgia, unless the Company agrees to the
contrary in writing.
11.3 Successors and Assigns. Except as otherwise provided in this
Agreement, the provisions of this Agreement will inure to the benefit of, and
be binding upon, the successors, assigns, heirs, executors and administrators
of the parties to this Agreement.
11.4 Waiver of Jury Trial. Each party hereto hereby waives its
rights to a jury trial of any claim or cause of action based upon or arising
out of this Agreement. The scope of this waiver is intended to be
all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including, without
limitation, contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims. Each party hereto hereby further warrants and
represents that such party has reviewed this
9
waiver with its legal counsel, and that such party knowingly and voluntarily
waives its jury trial rights following consultation with legal counsel. This
waiver is irrevocable, meaning that it may not be modified either orally or in
writing, and this waiver shall apply to any subsequent amendments, supplements
or modifications to (or assignments of) this agreement. In the event of
litigation, this agreement may be filed as a written consent to a trial
(without a jury) by the court.
11.5 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
11.6 Captions and Headings. The captions and headings used in this
Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
11.7 Notices. Unless otherwise provided, any notice or other
communication required or permitted to be given or effected under this
Agreement shall be in writing and shall be deemed effective upon personal or
facsimile delivery to the party to be notified or one business day after
deposit with an internationally recognized courier service, delivery fees
prepaid, and addressed to the party to be notified at the following respective
addresses, or at such other addresses as may be designated by written notice;
provided, however, that any notice of change of address shall be deemed
effective only upon receipt.
If to the Company: xxxxx.xxx, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Box
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx Xxxxx & Scarborough, L.L.P.
First Union Plaza
Suite 1400
000 Xxxxxxxxx Xxxxxx, X.X.
X.X. Xxx 00000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Holders: Notice shall be
sent to the person and address
indicated on the signature page
hereof.
11.8 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has
10
obtained written consent of the Holders of at least a majority of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure and upon obtaining such consent will bond all
Holders, including those who did not consent. Notwithstanding the foregoing,
any Holder may waive its own rights under this Agreement.
11.9 Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, such provisions shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
11.10 Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter
contained herein, and supersedes and cancels all prior agreements,
negotiations, correspondence, undertakings and communications of the parties,
oral or written, respecting such subject matter. There are no restrictions,
promises, representations, warranties, agreements or undertakings of any party
hereto with respect to the matters contemplated hereby, other than those set
forth herein or made hereunder.
11
IN WITNESS WHEREOF, the parties, each by its duly authorized
signatory, have executed this Agreement as of the date first above written.
xxxxx.xxx, Inc. INVESTORS:
By: /s/ Xxxxx X. Box [670 Winmark Dr.]
-------------------------------
Name: Xxxxx X. Xxx [Xxxxxxx, XX 00000]
Title: Chief Executive Officer Address
By: /s/ Xxxxx X. Xxxxxxx
------------------
Name: Xxxxx X. Xxxxxxx
------------------
Title:
12
