EXHIBIT 10.30
REGISTRATION RIGHTS AGREEMENT
Agreement dated as of February 13, 1997, by and among Renaissance
Solutions, Inc., a corporation organized under the laws of the State of Delaware
(the "Company"), and Xxxx X. Xxxxxxx, Xxxxxx X. Belt and Xxxxxxxxxx Xxxxx
(individually, a "Stockholder" and collectively, the "Stockholders").
INTRODUCTION
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The Company and the Stockholders have, as of the date hereof, entered
into a certain Stock Purchase Agreement (the "Purchase Agreement") pursuant to
which, upon and subject to the occurrence of certain events, the Company may
issue to the Stockholders shares of Common Stock, $.0001 par value per share
("Common Stock"), of the Company. The Stockholders wish to have, and the
Company is willing to grant to them, certain rights with respect to the
registration of such shares of Common Stock, if any are so issued.
In consideration of the mutual covenants and promises contained in
this Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Stockholders
agree as follows:
1. Certain Definitions. As used in this Section 1 and elsewhere in
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this Agreement, the following terms shall have the following respective
meanings:
"Commission" means the Securities and Exchange Commission, or any
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other Federal agency at the time administering the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, as
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amended or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"First Contingent Payment Date" means the date of payment of the
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First Contingent Payment by the Company to the Stockholders in accordance with
the terms of the Purchase Agreement.
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"Registration Statement" means a registration statement filed by
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the Company with the Commission for a public offering and sale of securities of
the Company (other than a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for a limited purpose, or any registration
statement covering only securities proposed to be issued in exchange for
securities or assets of another corporation).
"Registration Expenses" means the expenses described in Section 5.
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"Registrable Shares" means (a) the shares of Common Stock, if any,
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issued to the Stockholders pursuant to Purchase Agreement and (b) any other
shares of Common Stock of the Company issued in respect of such shares (because
of stock splits, stock dividends, reclassifications, recapitalizations, or
similar events); provided, however, that shares of Common Stock which are
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Registrable Shares shall cease to be Registrable Shares (i) upon any sale
pursuant to a Registration Statement, Section 4(1) of the Securities Act or Rule
144 under the Securities Act or upon any sale in any manner to a person or
entity which, by virtue of Section 11 of this Agreement, is not entitled to the
rights provided in this Agreement, (ii) at such time as all of the Registrable
Shares then held by the Rightsholders may be sold without restriction as to
volume under Rule 144, or (iii) with respect to a Rightsholder, at such time as
all such shares may be sold by such Rightsholder under Rule 144(k).
"Rightsholders" means the Stockholders and any other person or
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entity who becomes a Rightsholder under this Agreement pursuant to Section 11.
"Second Contingent Payment Date" means the date of payment of the
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Second Contingent Payment by the Company to the Stockholders in accordance with
the terms of the Purchase Agreement.
"Securities Act" means the Securities Act of 1933, as amended, or
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any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
Other terms used herein and not otherwise defined shall have the
respective meanings ascribed to them in the Purchase Agreement.
2. Demand Registration Rights.
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(a) Subject to the provisions of paragraph (c) below, from and
after the First Contingent Payment Date and prior to the first anniversary
thereof, the
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Rightsholders, by an election of the Stockholders' Representative, may request,
in writing, that the Company effect the registration of up to 35% of the
Registrable Shares owned by each Rightsholder and issued to him as part of the
First Contingent Payment (the "First Demand"). Subject to the provisions of
paragraph (c) below, from and after the Second Contingent Payment Date and prior
to the first anniversary thereof, the Rightsholders, by an election of the
Stockholders' Representative, may request, in writing, that the Company effect
the registration of up to 35% of the Registrable Shares owned by each
Rightsholder and issued to him as part of the First Contingent Payment or the
Second Contingent Payment, less such number of Registrable Shares as were
registered pursuant to the First Demand. If the Rightsholders intend to
distribute such Registrable Shares by means of an underwriting, the
Stockholders' Representative shall so advise the Company in his request. In the
event either such registration is underwritten, the right of Rightsholders to
participate shall be conditioned on such Rightsholders' participation in such
underwriting. Upon receipt of such a request, the Company shall, as expedi-
tiously as possible, use its best efforts to effect the registration of all
Registrable Shares which the Company has been requested to so register (subject
to the maximums stated above in this paragraph (a)) on such registration form
selected by the Company as the Company is then eligible to use. Notwithstanding
any other provision of this Section 2, if the managing underwriter(s) advises
the Rightsholders participating in the registration in writing that marketing
factors require a limitation of the number of shares to be underwritten, then
the number of Registrable Shares that may be included in the underwriting shall
be allocated among all such Rightsholders in proportion (as nearly as
practicable) to the amount of Registrable Shares of the Company owned by each
such Rightsholder.
(b) The Company shall not be required to effect more than two
registrations pursuant to paragraph (a) above.
(c) If at the time of any request to register Registrable Shares
pursuant to this Section 2 the Company is engaged or has fixed plans to engage
within 30 days of the time of the request in a registered public offering as to
which the Rightsholders may include Registrable Shares pursuant to Section 3
(subject to the limitations set forth therein) or is engaged in any other
activity which, in the good faith determination of the Company's Board of
Directors, would be adversely affected by the requested registration to the
material detriment of the Company, then the Company may at its option direct
that such request be delayed for a period not in excess of six months from the
effective date of such offering or the date of commencement of such other
material activity, as the case may be, such right to delay a request to be
exercised by the Company not more than once.
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3. Incidental Registration Rights.
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(a) From and after the First Contingent Payment Date and until the
first anniversary of the Second Contingent Payment Date (or, if no Second
Contingent Payment is made, the date by which such payment would have been
made), whenever the Company proposes to file a Registration Statement at any
time and from time to time relating to an offering in which the Company proposes
to sell shares of Common Stock for its own account, it will, prior to such
filing, give at least 20 days' written notice to all Rightsholders of its
intention to do so (subject to the limitations set forth in paragraph (c) below)
and, upon the written request of a Rightsholder or Rightsholders given within 20
days after the Company provides such notice (which request shall state the
intended method of disposition of such Registrable Shares), the Company shall
use its best efforts to cause all Registrable Shares which the Company has been
requested by such Rightsholder or Rightsholders to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of such Rightsholder or Rightsholders; provided, that the Company
shall have the right to postpone or withdraw any registration effected pursuant
to this Section 3 without obligation to any Rightsholder.
(b) In connection with any offering under this Section 3 involving
an underwriting, the Company shall not be required to include any Registrable
Shares in such underwriting unless the holders thereof accept the terms of the
underwriting as agreed upon between the Company and the underwriter(s) of such
offering. If in the opinion of the managing underwriter(s) of such offering the
registration of all, or part of, the shares of Common Stock (the "Incidental
Shares") which the Rightsholders have requested to be included pursuant to this
Section 3 and/or which other holders of shares of Common Stock or other
securities of the Company entitled to include shares of Common Stock in such
registration have requested to be included would materially and adversely affect
such public offering, then the Company shall be required to include in the
underwriting only that number of such shares, if any, which the managing
underwriter(s) believe(s) may be sold without causing such adverse effect. If
the number of Registrable Shares to be included in the underwriting in
accordance with the foregoing is less than the total number of shares which the
Rightsholders have requested to be included, then (i) the Company shall be
entitled to include all shares that it desires to be registered and (ii) the
Rightsholders who have requested registration and other holders of shares of
Common Stock or other securities of the Company entitled to include shares of
Common Stock in such registration on a parity with the Rightsholders shall
participate in the underwriting
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pro rata based upon their total ownership of shares of Common Stock of the
Company.
(c) Notwithstanding anything in the foregoing to the contrary, the
Company shall not be required to provide any advance notice to Rightsholders in
connection with any offering under this Section 3 involving an underwriting if
the Company has been informed that in the opinion of the managing underwriter(s)
the inclusion of any Incidental Shares in such offering would materially and
adversely affect the offering. In such event, the Company will provide written
notice to all Rightsholders of such managing underwriter's(s') opinion, which
notice need not be given prior to the filing of the applicable Registration
Statement.
4. Registration Procedures. If and whenever the Company is required
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by the provisions of this Agreement to use its best efforts to effect the
registration of any of the Registrable Shares under the Securities Act, the
Company shall:
(a) file with the Commission a Registration Statement with respect
to such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective for the period specified in paragraph
(b) below;
(b) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to keep
the Registration Statement effective for a period ending on the earlier of (i)
30 days after the effective date (excluding any days on which the Company
requires the Rightsholders to cease sales of shares as provided below) or (ii)
the date on which all Registrable Shares registered under such Registration
Statement have been sold; provided, however, that the Company may by written
notice require that each Rightsholder who is selling shares pursuant to such
registration (a "Selling Holder") immediately cease sales of shares pursuant to
such Registration Statement at any time that (A) the Company becomes engaged in
a business activity or negotiation which is not disclosed in the Registration
Statement (or the prospectus included therein) and which the Company desires to
keep confidential for business purposes, (B) the Company determines that a
particular disclosure would be premature or would adversely affect the Company
or its business or prospects, or (C) the Registration Statement can no longer be
used under the existing rules and regulations promulgated under the Securities
Act. The Company shall not be required to disclose to the Selling Holder(s) the
reasons for requiring a suspension of sales hereunder, and the Selling Holder(s)
shall not disclose to any third party the existence of any such suspension;
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(c) as expeditiously as possible furnish to each Selling Holder
such reasonable numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as the Selling Holder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the Selling Holder; and
(d) as expeditiously as possible use its best efforts to register
or qualify the Registrable Shares covered by the Registration Statement under
the securities or Blue Sky laws of such states as the Selling Holders shall
reasonably request, and do any and all other acts and things that may reasonably
be necessary or desirable to enable the Selling Holders to consummate the public
sale or other disposition in such states of the Registrable Shares owned by the
Selling Holders; provided, however, that the Company shall not be required in
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connection with this paragraph (d) to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction.
If the Company has delivered preliminary or final prospectuses to
the Selling Holders and after having done so the prospectus is amended to comply
with the requirements of the Securities Act, the Company shall promptly notify
the Selling Holders and, if requested, the Selling Holders shall immediately
cease making offers of Registrable Shares and return all undistributed
prospectuses to the Company. The Company shall promptly provide the Selling
Holders with revised prospectuses and, following receipt of the revised
prospectuses, the Selling Holders shall be free to resume making offers of the
Registrable Shares.
5. Allocation of Expenses. The Selling Holders, on the one hand, and
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the Company, on the other hand, will share equally in all Registration Expenses
of all registrations under Section 2 of this Agreement; provided, however, that
if a registration is withdrawn at the request of the Rightsholders requesting
such registration and if the requesting holders elect not to have such
registration counted as a registration requested under Section 2, the requesting
Rightsholders shall pay the Registration Expenses of such registration pro rata
in accordance with the number of their Registrable Shares included in such
registration. For purposes of this Section 5, the term "Registration Expenses"
shall mean all expenses incurred by the Company in complying with this
Agreement, including without limitation all registration and filing fees,
exchange listing fees, printing expenses, fees and disbursements of counsel for
the Company, state Blue Sky fees and expenses, and the expense of any special
audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses of the
Selling Holders' own counsel, all of which shall be borne by the Selling
Holders.
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6. Indemnification. In the event of any registration of any of the
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Registrable Shares under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless the seller of such Registrable Shares,
each underwriter of such Registrable Shares, and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act or
the Exchange Act against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act, the Exchange Act, state securities or Blue Sky
laws 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 Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company will reimburse such seller,
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by such seller, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
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any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or omission made in such
Registration Statement, preliminary prospectus or prospectus, or any such
amendment or supplement, in reliance upon and in conformity with information
furnished to the Company, in writing, by or on behalf of such seller,
underwriter or controlling person specifically for use in the preparation
thereof.
In the event of any registration of any of the Registrable Shares
under the Securities Act pursuant to this Agreement, each seller of Registrable
Shares, severally and not jointly, will indemnify and hold harmless the Company,
each of its directors and officers and each underwriter (if any) and each
person, if any, who controls the Company or any such underwriter within the
meaning of the Securities Act or the Exchange Act, against any losses, claims,
damages or liabilities, joint or several, to which the Company, such directors
and officers, underwriter or controlling person may become subject under the
Securities Act, Exchange Act, state securities or Blue Sky laws 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 a material fact contained in any Registration Statement under which
such Registrable Shares were registered under the Securities Act, any
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preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of such seller, specifically for use in connection with the preparation
of such Registration Statement, prospectus, amendment or supplement; provided,
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however, that the obligations of such Rightsholders hereunder shall be limited
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to an amount equal to the proceeds to each Rightsholder of Registrable Shares
sold as contemplated herein.
Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
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Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); and, provided, further, that the failure of any Indemnified Party to
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give notice as provided herein shall not relieve the Indemnifying Party of its
obligations under this Agreement unless and to the extent that the Indemnifying
Party is adversely affected by such failure. The Indemnified Party may
participate in such defense at such party's expense; provided, however, that the
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Indemnifying Party shall pay such expense if representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would be inappropriate
due to actual or potential differing interests between the Indemnified Party and
any other party represented by such counsel in such proceeding. No Indemnifying
Party, in the defense of any such claim or litigation shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect of such claim or litigation, and no Indemnified Party
shall consent to entry of any judgment or settle such claim or litigation
without the prior written consent of the Indemnifying Party.
7. Indemnification with Respect to Underwritten Offering. In the
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event that Registrable Shares are sold pursuant to a Registration Statement in
an underwritten offering pursuant to Section 2(a), the Company agrees to enter
into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of an issuer of the
securities being registered
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and customary covenants and agreements to be performed by such issuer, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering.
8. Information by Holder. Each Rightsholder of Registrable Shares
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included in any registration shall furnish to the Company such information
regarding such holder and the distribution proposed by such holder as the
Company may reasonably request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this
Agreement.
9. "Stand-Off" Agreement. Each Rightsholder, if requested by an
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underwriter of Common Stock or other securities of the Company, shall agree not
to sell or otherwise transfer or dispose of any Registrable Shares or other
securities of the Company held by such Rightsholder for a specified period of
time (not to exceed 180 days) following the effective date of a Registration
Statement. Any such Stand-Off Agreement shall be in writing in a form
satisfactory to the Company and such underwriter. The Company may impose stop-
transfer instructions with respect to the Registrable Shares or other securities
subject to the foregoing restriction until the end of the stand-off period.
10. Effectiveness. This Agreement shall become effective upon the
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occurrence of the Closing under the Purchase Agreement. If the Purchase
Agreement shall be terminated without the occurrence of such a Closing, this
Agreement (and all of the rights and obligations of the parties hereunder) shall
terminate simultaneously.
11. Transfers of Certain Rights; Additional Rightsholders.
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(a) General. The rights granted to each Rightsholder pursuant to
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the terms of this Agreement may be transferred by such Rightsholder to another
Rightsholder, to any affiliate of such Rightsholder, or to any member of the
immediate family of such Rightsholder, or any trust established for the benefit
of any of the foregoing; provided, however, that in the case of any transfer
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referred to in this paragraph (a), the Company is given written notice by the
transferor at the time of such transfer stating the name and address of the
transferee and identifying the securities with respect to which such rights are
being assigned.
(b) Transferees. Any transferee to whom rights hereunder are
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transferred shall, as a condition to such transfer, deliver to the Company a
written instrument by which such transferee agrees to be bound by the
obligations imposed
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upon Rightsholders under this Agreement to the same extent as if such transferee
were a party hereto.
(c) Subsequent Transferees. A transferee to whom rights are
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transferred pursuant to this Section 11 may not again transfer such rights to
any other person or entity, other than as provided in (a) and (b) above.
12. No Assignment. Except as provided in Section 11 hereof, the
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rights granted pursuant to this Agreement may not be transferred or assigned by
any Rightsholder.
13. Amendments. The provisions of this Agreement may be modified or
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amended at any time and from time to time only by an agreement or consent in
writing executed by the Company and the holders of a majority of the Registrable
Shares then outstanding; provided, however, that the registration rights granted
under this Agreement may be amended only in a manner which affects all
Registrable Shares in the same fashion.
14. Notices. All notices, requests, consents and other
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communications required to be given pursuant to this Agreement shall be in
writing and shall be given by personal delivery or by certified or registered
mail, postage prepaid, return receipt requested. Notices shall be deemed
effective when personally delivered or five days after being so mailed, as the
case may be, to the parties at the following respective addresses or at such
other address of which either party shall notify the other in accordance with
this Section 14:
The Company: Renaissance Solutions, Inc.
Lincoln North
00 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
With a copy to: Xxx X. Xxxxxxxxx, Esq.
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
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Any
Rightsholder: c/o C.M. Management Systems Ltd. Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
With a copy to: Xxxxx X. Xxxxxx, Esq.
Xxxxxxx, Xxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
15. Entire Agreement; Governing Law. This Agreement, together with
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the Purchase Agreement, embodies the entire agreement and understanding between
the parties, and supersedes all prior agreements and understandings relating to
the subject matter hereof. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to conflict of laws provisions.
16. Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Headings. The headings of the sections, subsections, and
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paragraphs of this Agreement have been added for convenience only and shall not
be deemed to be a part hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Renaissance Solutions, Inc.
By: /s/ Xxxxxxx X. Xxxxxxx
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Title: Vice President, Finance and
Administration
STOCKHOLDERS:
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
/s/ Xxxxxx X. Belt
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Xxxxxx X. Belt
/s/ Xxxxxxxxxx Xxxxx
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Xxxxxxxxxx Xxxxx
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