REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of July 31, 2003, by and between Xxxxxx, Inc., a Delaware corporation
(the "Company"), and Laurus Master Fund, Ltd., a Cayman Islands company (the
"Purchaser").
This Agreement is made pursuant to the Security Agreement, dated as of the
date hereof, between the Purchaser and the Company (the "Security Agreement"),
and pursuant to the Note and Warrant.
The Company and the Purchaser hereby agree as follows: 1. Definitions.
Capitalized terms used and not otherwise defined herein that are defined in the
Security Agreement shall have the meanings given such terms in the Security
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Effectiveness Date" means November 30, 2003.
"Effectiveness Period" shall have the meaning set forth in Section 2(a).
"Filing Date" means, with respect to the Registration Statement required to
be filed hereunder, August 31, 2003.
"Holder" or "Holders" means the Purchaser or any of its affiliates or
transferees to the extent any of them hold Registrable Securities.
"Indemnified Party" shall have the meaning set forth in Section 5(c).
"Indemnifying Party" shall have the meaning set forth in Section 5(c).
"Losses" shall have the meaning set forth in Section 5(a).
"Note" means the convertible promissory note issued on the date hereof.
"Proceeding" means an action, claim, suit, investigation or proceeding
(including, without limitation, an investigation or partial proceeding, such as
a deposition), whether commenced or threatened.
"Prospectus" means the prospectus included in a Registration Statement
(including, without limitation, a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by the
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
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"Registrable Securities" means the shares of Common Stock issued upon the
conversion of two million dollars aggregate principal amount of the Note and
issuable upon exercise of the Warrant.
"Registration Statement" means the registration statement required to be
filed hereunder, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference in such registration statement.
"Rule 144" means Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Rule 415" means Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Rule 424" means Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission having substantially the
same effect as such Rule.
"Warrant" means the Common Stock purchase warrant issued pursuant to the
Security Agreement.
2. Registration.
(a) On or prior to the Filing Date, the Company shall prepare and file
with the Commission a Registration Statement covering the Registrable
Securities for an offering to be made on a continuous basis pursuant
to Rule 415. The Registration Statement shall be on Form S-3 (except
if the Company is not then eligible to register for resale the
Registrable Securities on Form S-3, in which case such registration
shall be on another appropriate form in accordance herewith). The
Company shall cause the Registration Statement to become effective and
remain effective as provided herein. The Company shall use its
reasonable commercial efforts to cause the Registration Statement to
be declared effective under the Securities Act as promptly as possible
after the filing thereof, but in any event no later than the
Effectiveness Date, and shall keep the Registration Statement
continuously effective under the Securities Act until the date set
forth in Section 3(b) hereof (the "Effectiveness Period").
(b) If: (i) any Registration Statement is not filed on or prior to the
Filing Date; (ii) a Registration Statement filed hereunder is not
declared effective by the Commission by the Effectiveness Date; (iii)
after a Registration Statement is filed with and declared effective by
the Commission, such Registration Statement ceases to be effective (by
suspension or otherwise) as to all Registrable Securities to which it
is required to relate at any time prior to the expiration of the
Effectiveness Period (without being succeeded immediately by an
additional registration statement filed and declared effective) for a
period of time which shall exceed 30 days in the aggregate per year or
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more than 20 consecutive calendar days (defined as a period of 365
days commencing on the date the Registration Statement is declared
effective); or (iv) the Common Stock is not listed or quoted, or is
suspended from trading on any Trading Market for a period of three (3)
consecutive Trading Days (provided the Company shall not have been
able to cure such trading suspension within 30 days of the notice
thereof or list the Common Stock on any of the NASD OTC Bulletin
Board, NASDAQ SmallCap Market, the Nasdaq National Market, American
Stock Exchange or New York Stock Exchange (the "Trading Market"))(any
such failure or breach being referred to as an "Event," and for
purposes of clause (i), (ii) or (v) the date on which such Event
occurs, or for purposes of clause (iii) the date which such 30 day or
20 consecutive day period (as the case may be) is exceeded, or for
purposes of clause (iv) the date on which such three (3) Trading Day
period is exceeded, being referred to as "Event Date"), then until the
applicable Event is cured, the Company shall pay to each Holder an
amount in cash, as liquidated damages and not as a penalty, equal to
1.0% for each thirty (30) day period (prorated for partial periods) on
a daily basis of the aggregate outstanding principal amount of the
Note. Such liquidation damages shall be paid not less than each thirty
(30) days during an Event and within three (3) days following the date
on which such Event has been cured by the Company.
3. Registration Procedures. If and whenever the Company is required by the
provisions hereof to effect the registration of the Registrable Securities
under the Act, the Company will, as expeditiously as possible:
(a) prepare and file with the SEC a registration statement with respect to
such securities, promptly as possible respond to any comments received
from the SEC and use its best efforts to cause such registration
statement to become and remain effective for the period of the
distribution contemplated thereby (determined as herein provided), and
promptly provide to the Purchaser copies of all filings and SEC
letters of comment;
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith
as may be necessary to comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by the
registration statement and to keep such registration statement
effective until the earlier of: (i) six months after the latest
exercise period of the Warrant; (ii) four years after the Closing
Date, (iii) the date on which the Purchaser has disposed of all of the
Registrable Securities covered by such registration statement in
accordance with the Purchaser's intended method of disposition set
forth in such registration statement for such period or (iv) all
Registrable Securities may be sold immediately without registration
under the Securities Act and without volume restrictions pursuant to
Rule 144(k), as determined by the counsel to the Company pursuant to a
written opinion letter to such effect, addressed and acceptable to the
Company's transfer agent and the affected Holders;
(c) furnish to the Purchaser such number of copies of the registration
statement and the prospectus included therein (including each
preliminary prospectus) as the Purchaser reasonably may request to
facilitate the public sale or disposition of the securities covered by
such registration statement;
(d) register or qualify the Purchaser's Registrable Securities covered by
such registration statement under the securities or "blue sky" laws of
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such jurisdictions as the Purchaser, provided, however, that the
Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general
service of process in any such jurisdiction;
(e) list the Registrable Securities covered by such registration statement
with any securities exchange on which the Common Stock of the Company
is then listed;
(f) immediately notify the Purchaser at any time when a prospectus
relating thereto is required to be delivered under the Securities Act,
of the happening of any event of which the Company has knowledge as a
result of which the prospectus contained 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 in
light of the circumstances then existing; and
(g) make available for inspection by the Purchaser and any attorney,
accountant or other agent retained by the Purchaser, all publicly
available, non-confidential financial and other records, pertinent
corporate documents and properties of the Company, and cause the
Company's officers, directors and employees to supply all publicly
available, non-confidential information reasonably requested by the
attorney, accountant or agent of the Purchaser.
4. Registration Expenses. All expenses relating to the Company's compliance
with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and
expenses (including reasonable counsel fees) incurred in connection with
complying with state securities or "blue sky" laws, fees of the NASD,
transfer taxes, fees of transfer agents and registrars, reasonable fees of,
and disbursements incurred by, one counsel for the Holders, and costs of
insurance are called "Registration Expenses". All selling commissions
applicable to the sale of Registrable Securities, including any fees and
disbursements of any special counsel to the Holders beyond those included
in Registration Expenses, are called "Selling Expenses." The Company shall
be responsible for all Registration Expenses, but not Selling Expenses.
5. Indemnification.
(a) In the event of a registration of any Registrable Securities under the
Securities Act pursuant to this Agreement, the Company will indemnify
and hold harmless the Purchaser, and its officers, directors and each
other person, if any, who controls the Purchaser within the meaning of
the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which the Purchaser, or such persons
may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in any
registration statement under which such Registrable Securities were
registered under the Securities Act pursuant to this Agreement, any
preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, or arise out of or are based upon 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 will reimburse the Purchaser, and each such person for
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any reasonable legal or other expenses incurred by them in connection
with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be
liable in any such case if and to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
so made in conformity with information furnished by the Purchaser or
any such person in writing specifically for use in any such document.
(b) In the event of a registration of the Registrable Securities under the
Securities Act pursuant to this Agreement, the Purchaser will
indemnify and hold harmless the Company, and its officers, directors
and each other person, if any, who controls the Company within the
meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Company or such persons
may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact which was furnished in
writing by the Purchaser to the Company expressly for use in (and such
information is contained in) the registration statement under which
such Registrable Securities were registered under the Securities Act
pursuant to this Agreement, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof,
or arise out of or are based upon 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 will
reimburse the Company and each such person for any reasonable legal or
other expenses incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided,
however, that the Purchaser will be liable in any such case if and
only to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with
information furnished in writing to the Company by the Purchaser
specifically for use in any such document. Notwithstanding the
provisions of this paragraph, the Purchaser shall not be required to
indemnify any person or entity in excess of the amount of the
aggregate net proceeds received by the Purchaser of Registrable
Securities in connection with any such registration under the
Securities Act.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing thereof, but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to such indemnified party other than
under this Section 5(c) and shall only relieve it from any liability
which it may have to such indemnified party under this Section 5(c) if
and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel satisfactory to such
indemnified party, and, after notice from the indemnifying party to
such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such
indemnified party under this Section 5(c) for any legal expenses
subsequently incurred by such indemnified party in connection with the
defense thereof; if the indemnified party retains its own counsel,
then the indemnified party shall pay all fees, costs and expenses of
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such counsel, provided, however, that, if the defendants in any such
action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there
may be reasonable defenses available to it which are different from or
additional to those available to the indemnifying party or if the
interests of the indemnified party reasonably may be deemed to
conflict with the interests of the indemnifying party, the indemnified
parties shall have the right to select one separate counsel and to
assume such legal defenses and otherwise to participate in the defense
of such action, with the reasonable expenses and fees of such separate
counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution in the event
of joint liability under the Securities Act in any case in which
either (i) the Purchaser, or any controlling person of the Purchaser,
makes a claim for indemnification pursuant to this Section 5(c) but it
is judicially determined (by the entry of a final judgment or decree
by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the
fact that this Section 5(c) provides for indemnification in such case,
or (ii) contribution under the Securities Act may be required on the
part of the Purchaser or controlling person of the Purchaser in
circumstances for which indemnification is provided under this Section
5(c); then, and in each such case, the Company and the Purchaser will
contribute to the aggregate losses, claims, damages or liabilities to
which they may be subject (after contribution from others) in such
proportion so that the Purchaser is responsible only for the portion
represented by the percentage that the public offering price of its
securities offered by the registration statement bears to the public
offering price of all securities offered by such registration
statement, provided, however, that, in any such case, (A) the
Purchaser will not be required to contribute any amount in excess of
the public offering price of all such securities offered by it
pursuant to such registration statement; and (B) no person or entity
guilty of fraudulent misrepresentation (within the meaning of Section
10(f) of the Act) will be entitled to contribution from any person or
entity who was not guilty of such fraudulent misrepresentation.
6. Representations and Warranties.
(a) The Common Stock of the Company is registered pursuant to Section
12(b) or 12(g) of the Exchange Act and the Company has timely filed
all proxy statements, reports, schedules, forms, statements and other
documents required to be filed by it under the Exchange Act. The
Company has filed (i) its Annual Report on Form 10-K for the fiscal
year ended December 31, 2002, (ii) its Quarterly Report on Form 10-Q
for the fiscal quarter ended March 31, 2003, and (iii) Form 8-K,
Definitive Proxy and other forms filed in 2003 (collectively, the "SEC
Reports"). Each SEC Report was, at the time of its filing, in
substantial compliance with the requirements of its respective form
and none of the SEC Reports, nor the financial statements (and the
notes thereto) included in the SEC Reports, as of their respective
filing dates, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The
financial statements of the Company included in the SEC Reports comply
as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the Commission
or other applicable rules and regulations with respect thereto. Such
financial statements have been prepared in accordance with generally
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accepted accounting principles ("GAAP") applied on a consistent basis
during the periods involved (except (i) as may be otherwise indicated
in such financial statements or the notes thereto or (ii) in the case
of unaudited interim statements, to the extent they may not include
notes, may be subject to year-end adjustments or may be condensed) and
fairly present in all material respects the financial condition, the
results of operations and the cash flows of the Company and its
subsidiaries, on a consolidated basis, as of, and for, the periods
presented in each such SEC Report.
(b) The Company Common Stock is listed for trading on the OTC Bulletin
Board and satisfies all requirements for the continuation of such
listing. The Company has not received any notice that its Common Stock
will be delisted from the OTC Bulletin Board or that the Common Stock
does not meet all requirements for the continuation of such listing.
(c) Neither the Company, nor any of its affiliates, nor any person acting
on its or their behalf, has directly or indirectly made any offers or
sales of any security or solicited any offers to buy any security
under circumstances that would cause the offering of the Securities
pursuant to this Agreement to be integrated with prior offerings by
the Company for purposes of the Securities Act which would prevent the
Company from selling the Common Stock pursuant to Rule 506 under the
Securities Act, or any applicable exchange-related stockholder
approval provisions. Nor will the Company or any of its affiliates or
subsidiaries take any action or steps that would cause the offering of
the Securities to be so integrated with other offerings.
(d) The Registrable Securities are restricted securities under the
Securities Act as of the date of this Agreement. The Company will not
issue any stop transfer order or other order impeding the sale and
delivery of any of the Registrable Securities at such time as the
Registrable Securities are registered for public sale or an exemption
from registration is available, except as required by federal or state
securities laws.
(e) The Company understands the nature of the Registrable Securities
issuable upon the conversion of the Note and the exercise of the
Warrant and recognizes that the Registrable Securities may have a
potential dilutive effect. The Company specifically acknowledges that
its obligation to issue the Registrable Securities is binding upon the
Company and enforceable regardless of the dilution such issuance may
have on the ownership interests of other shareholders of the Company.
(f) Except for agreements made in the ordinary course of business, there
is no agreement that has not been filed with the SEC as an exhibit to
a registration statement or to a form required to be filed by the
Company under the Securities Exchange Act the breach of which could
have a material and adverse effect on the Company and its
subsidiaries, or would prohibit or otherwise interfere with the
ability of the Company to enter into and perform any of its
obligations under this Agreement in any material respect.
(g) The Company will at all times have authorized and reserved a
sufficient number of shares of Common Stock for the full conversion of
the Note and exercise of the Warrant.
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7. Miscellaneous.
(a) Remedies. In the event of a breach by the Company or by a Holder, of
any of their obligations under this Agreement, each Holder or the
Company, as the case may be, in addition to being entitled to exercise
all rights granted by law and under this Agreement, including recovery
of damages, will be entitled to specific performance of its rights
under this Agreement.
(b) No Piggyback on Registrations. Except as and to the extent specified
in Schedule 6(b) hereto, neither the Company nor any of its security
holders (other than the Holders in such capacity pursuant hereto) may
include securities of the Company in the Registration Statement other
than the Registrable Securities, and the Company shall not after the
date hereof enter into any agreement providing any such right for
inclusion of shares in the Registration Statement to any of its
security holders. Except as and to the extent specified in Schedule
4.15 of the Securities Purchase Agreement of even date herewith, the
Company has not previously entered into any agreement granting any
registration rights with respect to any of its securities to any
Person that has not been fully satisfied.
(c) Compliance. Each Holder covenants and agrees that it will comply with
the prospectus delivery requirements of the Securities Act as
applicable to it in connection with sales of Registrable Securities
pursuant to the Registration Statement.
(d) Discontinued Disposition. Each Holder agrees by its acquisition of
such Registrable Securities that, upon receipt of a notice from the
Company of the occurrence of a Discontinuation Event, such Holder will
forthwith discontinue disposition of such Registrable Securities under
the Registration Statement until such Holder's receipt of the copies
of the supplemented Prospectus and/or amended Registration Statement
or until it is advised in writing (the "Advice") by the Company that
the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in
such Prospectus or Registration Statement. The Company may provide
appropriate stop orders to enforce the provisions of this paragraph.
For purposes of this Section 7(d), a "Discontinuation Event" shall
mean when the Commission notifies the Company whether there will be a
"review" of such Registration Statement and whenever the Commission
comments in writing on such Registration Statement (the Company shall
provide true and complete copies thereof and all written responses
thereto to each of the Holders); (iii) any request by the Commission
or any other Federal or state governmental authority for amendments or
supplements to the Registration Statement or Prospectus or for
additional information; (iv) the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
covering any or all of the Registrable Securities or the initiation of
any Proceedings for that purpose; (v) the receipt by the Company of
any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities
for sale in any jurisdiction, or the initiation or threatening of any
Proceeding for such purpose; and (vi) the occurrence of any event or
passage of time that makes the financial statements included in the
Registration Statement ineligible for inclusion therein or any
statement made in the Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires any
revisions to the Registration Statement, Prospectus or other documents
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so that, in the case of the Registration Statement or the Prospectus,
as the case may be, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) Piggy-Back Registrations. If at any time during the Effectiveness
Period there is not an effective Registration Statement covering all
of the Registrable Securities and the Company shall determine to
prepare and file with the Commission a registration statement relating
to an offering for its own account or the account of others under the
Securities Act of any of its equity securities, other than on Form S-4
or Form S-8 (each as promulgated under the Securities Act) or their
then equivalents relating to equity securities to be issued solely in
connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee
benefit plans, then the Company shall send to each Holder written
notice of such determination and, if within fifteen days after receipt
of such notice, any such Holder shall so request in writing, the
Company shall include in such registration statement all or any part
of such Registrable Securities such holder requests to be registered,
subject to customary underwriter cutbacks applicable to all holders of
registration rights and subject to the consent of any selling
stockholder(s) under such registration statement.
(f) 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 same shall be in
writing and signed by the Company and the Holders of the then
outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to
a matter that relates exclusively to the rights of certain Holders and
that does not directly or indirectly affect the rights of other
Holders may be given by Holders of at least a majority of the
Registrable Securities to which such waiver or consent relates;
provided, however, that the provisions of this sentence may not be
amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(g) Notices. Any notice or request hereunder may be given to the Company
or Purchaser at the respective addresses set forth below or as may
hereafter be specified in a notice designated as a change of address
under this Section 7(g). Any notice or request hereunder shall be
given by registered or certified mail, return receipt requested, hand
delivery, overnight mail or telecopy (confirmed by mail). Notices and
requests shall be, in the case of those by hand delivery, deemed to
have been given when delivered to any officer of the party to whom it
is addressed, in the case of those by mail or overnight mail, deemed
to have been given when deposited in the mail or with the overnight
mail carrier, and, in the case of a telecopy, when confirmed
telephonically. The address for such notices and communications shall
be as follows:
If to the Company: Xxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxx 000
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
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With a copy to: Xxxxxxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxx Xxxx & Xxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to a Purchaser: To the address set forth under
such Purchaser name on the signature
pages hereto.
If to any other Person who is then the registered Holder:
To the address of such Holder as it
appears in the stock transfer books
of the Company
or such other address as may be designated in writing hereafter, in the same
manner, by such Person.
(h) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of
the parties and shall inure to the benefit of each Holder. The Company
may not assign its rights or obligations hereunder without the prior
written consent of each Holder. Each Holder may assign their
respective rights hereunder in the manner and to the Persons as
permitted under the Note.
(i) Execution and Counterparts. This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed
to be an original and, all of which taken together shall constitute
one and the same Agreement. In the event that any signature is
delivered by facsimile transmission, such signature shall create a
valid binding obligation of the party executing (or on whose behalf
such signature is executed) the same with the same force and effect as
if such facsimile signature were the original thereof.
(j) Governing Law. All questions concerning the construction, validity,
enforcement and interpretation of this Agreement shall be governed by
and construed and enforced in accordance with the internal laws of the
State of New York, without regard to the principles of conflicts of
law thereof. Each party agrees that all Proceedings concerning the
interpretations, enforcement and defense of the transactions
contemplated by this Agreement shall be commenced exclusively in the
state and federal courts sitting in the City of New York, Borough of
Manhattan. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in the
City of New York, Borough of Manhattan for the adjudication of any
dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any Proceeding, any claim that it
is not personally subject to the jurisdiction of any such court, that
such Proceeding is improper. Each party hereto hereby irrevocably
waives personal service of process and consents to process being
served in any such Proceeding by mailing a copy thereof via registered
or certified mail or overnight delivery (with evidence of delivery) to
such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and
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sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law. Each party hereto hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby. If
either party shall commence a Proceeding to enforce any provisions of
a Transaction Document, then the prevailing party in such Proceeding
shall be reimbursed by the other party for its reasonable attorneys
fees and other costs and expenses incurred with the investigation,
preparation and prosecution of such Proceeding.
(k) Cumulative Remedies. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law.
(l) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain
in full force and effect and shall in no way be affected, impaired or
invalidated, and the parties hereto shall use their reasonable efforts
to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any of such that may be hereafter declared invalid,
illegal, void or unenforceable.
(m) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
XXXXXX, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President - CFO
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGES OF PURCHASER TO FOLLOW]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
LAURUS MASTER FUND, LTD.
By: /s/ Xxxxx Grin
--------------------------------------------
Name: Xxxxx Grin
Title: Partner
Address for Notice:
c/o Laurus Capital Management, LLC
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Grin
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