REGISTRATIONS RIGHTS AGREEMENT
REGISTRATIONS
RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (the “Agreement”) is made and entered into as of
February
28, 2006, between SmartVideo Technologies, Inc., a Delaware corporation (the
“Company”), the parties whose names appear on the signature page hereof
(individually, a “Holder” and collectively, the
“Holders”).
This
Agreement is made in connection with the Holders acquisition of the Company’s
shares of common stock
(the “Common Stock”).
The
parties hereby agree as follows:
| 1. |
Certain
Definitions.
|
As
used
in this Agreement, the following terms shall have the following respective
meanings:
| (a) |
“Business
Day”
means any day, other than a Saturday, Sunday or legal holiday, on
which
banks in the State of New York are open for
business.
|
| (b) |
“Commission”
means the Securities and Exchange
Commission.
|
| (c) |
“Exchange
Act”
means the Securities Exchange Act of 1934, as amended, or any successor
statute
thereto, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect at the
time.
|
| (d) |
“Holders”
means the Holders referred to in the
Preamble.
|
| (e) |
“Person”
shall mean an individual, partnership, corporation, association,
trust,
joint venture, unincorporated
organization and any government, governmental department or agency
or
political
subdivision thereof.
|
| (f) |
“Registrable
Securities”
means (i) the Common Stock issued to the Holders; and (ii) any shares
of
capital stock of the Company issued or issuable with respect to the
securities referred to in clause
(i) by way of a stock split or stock dividend or in connection with
a
combination of shares,
recapitalization, merger, consolidation or other reorganization.
For
purposes of this Agreement,
a Person will be deemed to be a holder of Registrable Securities
upon
conversion or
exercise in connection with a transfer of securities or otherwise,
but
disregarding any restrictions
or limitations upon the exercise of such right, whether or not such
acquisition has actually
been effected. Such securities will cease to be Registrable Securities
when sold pursuant
to Rule 144 under the Securities Act or any offering registered under
the
Securities Act.
|
| (g) |
“Registration
Expenses”
means all expenses incident to the Company’s performance of or compliance
with this Agreement, including, without limitation, all registration,
filing, listing and National Association of Securities Dealers, Inc.
(“NASD”) fees, all fees and expenses of complying with securities or blue
sky laws, all word processing, duplicating and printing expenses,
all
messenger and delivery expenses, any transfer taxes, the fees and
expenses
of the Company’s
legal counsel and independent public accountants, including the expenses
of any special
audits or “cold comfort” letters required by or incident to such
performance and compliance,
fees and disbursements of one counsel for all of the Holders, and
any fees
and disbursements
of underwriters customarily paid by insurers or sellers of securities;
provided,
however,
that Registration Expenses shall not include underwriting discounts
and
commissions.
|
| (h) |
“Securities
Act”
means the Securities Act of 1933, as amended, or any successor statute
thereto,
and the rules and regulations of the Commission promulgated thereunder,
all as the same
shall be in effect at the time.
|
| 2. |
Piggyback
Registration Rights.
|
| (a) |
Incidental
Registration.
If
the Company for itself or any of its security holders shall at any
time
or times after the date hereof determine to register under the Securities
Act any shares of its
capital stock or other securities other than: (i) the registration
of an
offer, sale or other disposition
of securities solely to employees of, or other persons providing
services
to, the Company,
or any subsidiary pursuant to an employee or similar benefit plan;
or (ii)
relating to a merger,
acquisition or other transaction of the type described in Rule 145
under
the Securities Act
or a comparable or successor rule, registered on Form S-4 or similar
or
successor forms, on each
such occasion the Company will notify each Holder of such determination
at
least thirty (30)
days prior to the filing of such registration statement, and upon
the
request of any Holder given
in writing within twenty (20) days after the receipt of such notice,
the
Company will use its
best efforts as soon as practicable thereafter to cause any of the
Registrable Securities specified
by any such Holder to be included in such registration statement
to the
extent such registration
is permissible under the Securities Act and subject to the conditions
of
the Securities
Act (an “Incidental Registration”).
|
| (b) |
Number
of Registrations.
The Company shall not be obligated to effect more than one Incidental
Registration pursuant to this Agreement, except as provided in subdivision
(f) hereof.
Subject to subdivision (f) hereof, the Company may include in such
Incidental Registration
other securities of the Company for sale, for the Company’s account or for
the account
of any other person, if and to the extent that the managing underwriter
determines that the
inclusion of such additional shares will not interfere with the orderly
sale of the underwritten
securities at a price range acceptable to the requesting Holders.
Upon
receipt of a written request pursuant to this Section 2(a), the Company
shall promptly give written notice of such
request to all Holders, and all Holders shall be afforded the opportunity
to participate in such
request. The Company will be obligated to include in the Incidental
Registration such number
of Registrable Securities of any Holder joining in such request as
are
specified in a written
request by the Holder received by the Company within 20 days after
receipt
of such written
notice from the Company.
|
| (c) |
Limitations
on Piggyback Registration Rights.
No
Holder may exercise his registration rights under Section 2(a) hereof
if
such Holder could sell all of his
Registrable Securities requested
to be included in the Incidental Registration in a three (3) month
period
without registration under the Securities Act pursuant to Rule 144
under
the Securities Act.
|
| (d) |
Expenses.
The
Company shall pay all Registration Expenses incurred in connection
with
any Incidental
Registration.
|
| (e) |
Effective
Registration Statement.
An
Incidental Registration requested pursuant to Section 2(a)
shall not be deemed to have been effected unless it has been declared
effective by the Commission.
Notwithstanding the foregoing, a registration statement will not
be deemed
to have
been effected if: (i) after it has become effective with the Commission,
such registration is interfered
with by any stop order, injunction, or other order or requirement
of the
Commission or
other governmental agency or any court proceeding for any reason
other
than a misrepresentation
or omission by any Holder; or (ii) the conditions to closing specified
in
the purchase
agreement or underwriting agreement entered into in connection with
such
registration
are not satisfied, other than solely by reason of some act or omission
by
any Holder.
|
| (f) |
Priority
in Incidental Registration.
If
an Incidental Registration is an underwritten registration initiated
by
the Company, and the managing underwriters shall give written advice
to
the Company that, in their opinion, market conditions dictate that
no more
than a specified maximum number of securities (the “Underwriter’s Maximum
Number”) could successfully be included in such Incidental Registration,
then the Company will include in such
registration:
|
| (i) |
first,
that number of securities which the Company proposes to offer and
sell
for its own account in such registration and which does not exceed
the
Underwriter’s
Maximum Number; and
|
| (ii) |
second,
that number of Registrable Securities which shall have been requested
by the Holders thereof having registration rights hereunder which
does not exceed the difference between the Underwriter’s Maximum
Number and that number of securities which the Company is entitled
to
include therein pursuant to clause (i)
above.
|
If
less
than all of the Registrable Securities requested to be included in any such
registration by the Holders
can be so included due to these priority requirements, then each requesting
Holder’s request shall be
granted on an pro rata basis with the other requesting Holders. In addition,
all
Holders whose Registrable
Securities were not included in the Incidental Registration as requested as
a
result of this Section
2(f), shall have the right to participate in one (1) additional Incidental
Registration in accordance with the terms of this Agreement.
| (g) |
Notwithstanding
anything to the contrary contained in this Section 2, the Company
shall
have the
right to delay any registration of Registrable Securities requested
pursuant to this Section 2 for
up to one hundred twenty (120) days if such registration would, in
the
judgment of the Company’s Board of Directors, substantially interfere with
any material transaction being considered
at the time of receipt of the request from the
Holders.
|
| 3. |
Registration
Procedures.
|
| (a) |
If
and whenever the Company is required to use its best efforts to effect
the
registration of any Registrable Securities under the Securities Act
as
provided in Section 2, the Company, as expeditiously as possible
and
subject to the terms and conditions of Section 2,
will:
|
| (i) |
prepare
and file with the Commission the requisite registration statement
to
effect such registration
and use its best efforts to cause such registration to become and
remain
effective;
|
| (ii) |
permit
any Holder which, in the reasonable judgment of the Holder, might
be
deemed to be
an underwriter or a controlling person of the Company, to participate
in
the preparation
of such registration statement and to require the insertion therein
of
material furnished to the Company in writing, which in the reasonable
judgment of such Holder and its counsel should be
included;
|
| (iii) |
prepare
and file with the Commission such amendments and supplements to such
registration
statement and the prospectus used in connection therewith as may
be
necessary
to keep such registration statement effective and to comply with
the
provisions of
the Securities Act with respect to the disposition of all securities
covered by such registration statement until the earlier of such
time as
all of such securities have been disposed
of in accordance with the intended methods of disposition by the
seller or
sellers
thereof set forth in such registration statement or the expiration
of 180
days after such registration statement becomes
effective;
|
| (iv) |
furnish
to the Holders such number of conformed copies of such registration
statement and
of each such amendment and supplement thereto (in each case including
all
exhibits),
such number of copies of the prospectus contained in such registration
statement
(including each preliminary prospectus and any summary prospectus)
and any
other prospectus filed under Rule 424 under the Securities Act, in
conformity with the requirements of the Securities Act, and such
other
documents, as the purchaser or any Holder
of Registrable Securities to be sold under such registration statement
may
reasonably
request;
|
| (v) |
use
its best efforts to register or qualify all Registrable Securities
covered
by such registration
statement under such other United States state securities or blue
sky laws
of such
jurisdictions as any Holder of Registrable Securities to be sold
under
registration statement
shall reasonably request, to keep such registration or qualification
in
effect for so long as such registration remains in effect, and take
any
other action which may be reasonably
necessary or advisable to enable the Holder of Registrable Securities
to
be sold
under such registration statement to consummate the disposition in
such
jurisdictions
of the securities owned by such Holder, except that the Company shall
not
for
any such purpose be required to (a) qualify generally to do business
as a
foreign corporation
in any jurisdiction wherein it would not but for the requirements
of this
subdivision
(v) be obligated to be so qualified, or (b) subject itself to taxation
in
any such jurisdiction,
or (c) consent to general service of process in any such
jurisdiction;
|
| (vi) |
use
its best efforts to cause all Registrable Securities covered by such
registration statement
to be registered with or approved by such other United States state
governmental
agencies or authorities as may be necessary to enable the Holder
of
Registrable
Securities to be sold under such registration statement to consummate
the
intended
disposition of such Registrable
Securities;
|
| (vii) |
in
the event of the issuance of any stop order suspending the effectiveness
of the registration
statement, or of any order suspending or preventing the use of any
related
prospectus
or suspending the qualification of any Registrable Securities included
in
such registration
statement for sale in any jurisdiction, the Company shall use its
best
efforts promptly
to obtain the withdrawal of such order;
and
|
| (viii) |
immediately
notify the Holders of Registrable Securities included in such registration
statement
at any time when a prospectus relating thereto is required to be
delivered
under the
Securities Act, of the happening of any event as a result of which
the
prospectus included
in such registration statement, as then in effect, includes an untrue
statement of material fact or omits to state any material fact required
to
be stated therein or necessary to
make the statements therein not misleading in the light of the
circumstances under which
they were made, and at the request of the Holders promptly prepare
and
furnish to the
Holders a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, as thereafter delivered
to
the purchasers of such securities,
such prospectus shall not include an untrue statement of a material
fact
or omit to
state a material fact required to be stated therein or necessary
to make
the statements therein
not misleading in the light of the circumstances under which they
were
made.
|
| (b) |
The
Company may require each Holder of Registrable Securities to be sold
under
such registration
statement, at the Company’s expense, to furnish the Company with such
information
and undertakings as it may reasonably request regarding such Holder
and
the distribution
of such securities as the Company may from time to time reasonably
request
in writing.
|
| (c) |
Each
Holder, by execution of this Agreement, agrees (A) that upon receipt
of
any notice of the Company
of the happening of any event of the kind described in subdivision
(a)(viii) of this Section
3, such Holder will forthwith discontinue its disposition of Registrable
Securities pursuant
to the registration statement relating to such Registrable Securities
until the receipt by such
Holder of the copies of the supplemented or amended prospectus
contemplated by subdivision
(a)(viii) of this Section 3 and, if so directed by the Company, will
deliver to the Company
all copies, other than permanent file copies, then in possession
of the
Holders of the prospectus
relating to such Registrable Securities current at the time of receipt
of
such notice and (B) that the Holder will immediately notify the Company,
at any time when a prospectus relating to the registration of such
Registrable Securities is required to be delivered under the Securities
Act, of the happening of any event as a result of which information
previously furnished
by such Holder to the Company for inclusion in such prospectus contains
an
untrue statement
of a material fact or omits to state any material fact required to
be
stated therein or necessary
to make the statements therein not misleading in the light of the
circumstances under which
they were made. In the event the Company or any such Holder shall
give any
such notice,
the period referred to in subdivision (a)(viii) of this Section 3
shall be
extended by a number
of days equal to the number of days during the period from and including
the giving of notice pursuant to subdivision (a)(viii) of this Section
3
to and including the date when such Holder
shall have received the copies of the supplemented or amended prospectus
contemplated
by subdivision (a)(viii) of this Section
3.
|
| 4. |
Underwritten
Offerings.
|
| (a) |
Underwritten
Offering.
In
connection with any underwritten offering pursuant to a registration
requested under Section 2(a), the Company will enter into an underwriting
agreement
with the underwriters for such offering. Each Holder shall be a party
to
such underwriting agreement. Each Holder whose Registrable Securities
are
included in such registration shall be required to make such
representations or warranties to or agreements with the
Company or the underwriters as are reasonable requested by the Company
and
such underwriters.
|
| (b) |
Selection
of Underwriters.
If
an Incidental Registration pursuant to Section 2(a) involves an
underwritten
offering, then the Company shall have sole discretion to select the
underwriter.
|
| (c) |
Holdback
Agreements.
Each Holder agrees, if so reasonably required by the managing underwriter
in a registration pursuant to Section 2, not to effect any public
sale or
distribution of Registrable
Securities or sales of such Registrable Securities pursuant to Rule
144 or
Rule 144A under
the Securities Act, during the seven (7) days prior to and the 180
days
after any firm commitment
underwritten registration pursuant to Section 2 has become effective
(except as part
of such underwritten registration) or, if the managing underwriter
advises
the Company that, in its opinion, no such public sale or distribution
should be effected for a period of not more
than 180 days after such underwritten registration in order to complete
the sale and distribution
of securities included in such registration and the Company gives
notice
to such effect
to such Holders of such advice, each Holder shall not effect any
public
sale or distribution of
Registrable Securities or sales of such Registrable Securities pursuant
to
Rule 144 or Rule 144A
under the Securities Act during such period after such underwritten
registration, except as part
of such underwritten registration, whether or not such Holder participates
in such registration.
|
| 5. |
Preparation.
Reasonable Investigation.
In connection with the preparation and filing of each registration
statement under the Securities Act, the Company will give the Holders
of
Registrable Securities
to be sold under such registration statement, the underwriters, if
any,
and their respective counsel
and accountants, drafts and final copies of such registration statement,
each prospectus included
therein or filed with the Commission and each amendment thereof or
supplement thereto, at
least five (5) Business Days prior to the filing thereof with the
Commission, and will give each of them
such access to its books and records and such opportunities to discuss
the
business of the Company
with its officers and the independent public accountants who have
certified its financial statements as shall be necessary, in the
opinion
of such Holders and such underwriters’ respective counsel,
to conduct a reasonable investigation within the meaning of the Securities
Act.
|
| 6. |
Indemnification
and Contribution.
|
| (a) |
Indemnification
by the Company.
In the event of any registration under the Securities Act pursuant
to Section 2 of any Registrable Securities covered by such registration,
the Company will, and hereby does, indemnify and hold harmless each
Holder
of Registrable Securities to be sold under such registration statement,
each other person who participates as an underwriter in the
offering or sale of such securities (if so required by such underwriter
as
a condition to including
the Registrable Securities of the Holders in such registration) and
each
other person, if
any, who controls any such Holder or any such underwriter within
the
meaning of the Securities
Act (collectively, the “Indemnified Parties”), against any losses, claims,
damages or liabilities,
joint or several, to which the Holders or underwriter or controlling
person may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, 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 securities
were
registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained
therein or any document incorporated therein by reference, or any
amendment or supplement
thereto, or any omission or alleged omission to state therein a material
fact required to
be stated therein or necessary to make the statements therein not
misleading, or arise out of any
violation by the Company of any rule or regulation promulgated under
the
Securities Act or state
securities law applicable to the Company and relating to action or
inaction required of the Company
in connection with any such registration, and the Company will reimburse
the Indemnified
Parties for any legal or any other expenses reasonably incurred by
them in
connection
with investigating or defending any such loss, claim, liability,
action or
proceeding; provided,however,
that the Company shall not be liable to any Indemnified Party in
any such
case
to the extent that any such loss, claim, damage, liability (or action
or
proceeding in respect thereof)
or expense arises out of or is based upon any untrue statement or
alleged
untrue statement
or omission or alleged omission made in such registration statement,
any
such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement
in reliance
upon and in conformity with written information furnished to the
Company
by such Indemnified
Party.
|
| (b) |
Indemnification
by the Holders.
As
a condition to including any Registrable Securities of any
person or entity in any registration statement filed pursuant to
Section
2(a) hereof, the Holders
whose Registrable Securities are included in such registration statement
will, and do hereby,
indemnify and hold harmless (in the same manner and to the same extent
as
set forth in subdivision
(a) of this Section 6) the Company, each director of the Company,
each
officer of the Company and each other person, if any, who controls
the
Company within the meaning of the
Securities Act, with respect to any statement or alleged statement
in or
omission or alleged omission
from such registration statement, any preliminary prospectus, final
prospectus or summary
prospectus contained therein, or any amendment or supplement thereto,
if,
and only if,
such statement or alleged statement or omission or alleged omission
was
made in reliance upon
and in conformity with information furnished in writing to the Company
directly by such person
or entity specifically for use therein; provided,however,
that the obligation of any Holder
hereunder shall be limited to an amount equal to the proceeds received
by
such Holder upon
the sale of Registrable Securities sold in the offering covered by
such
registration.
|
| (c) |
Notices
of Claims, etc.
Promptly
after receipt by an Indemnified Party of notice of the commencement
of any action or proceeding involving a claim referred to in the
preceding
subdivisions
of this Section 6, such Indemnified Party will, if a claim in respect
thereof is to be made
against a party required to provide indemnification (an “Indemnifying
Party”), give written
notice to the latter of the commencement of such action, provided,however,
that the failure
of any Indemnified Party to give notice as provided herein shall
not
relieve the Indemnifying
Party of its obligation under the preceding subdivisions of this
Section
6, except to the extent that the Indemnifying Party is actually prejudiced
by such failure to give notice. In
case any such action is brought against an Indemnified Party, unless
in
such Indemnified Party’s
reasonable judgment a conflict of interest between such Indemnified
and
Indemnifying Parties
may exist in respect of such claim, the Indemnifying Party shall
be
entitled to participate
in and to assume the defense thereof, jointly with any other Indemnifying
Party similarly notified to the extent that it may wish, with counsel
reasonably satisfactory to such Indemnified
Party, and after notice from the Indemnifying Party to such Indemnified
Party of its election so to assume the defense thereof, the Indemnifying
Party shall not be liable to such Indemnified
Party for any legal or other expenses subsequently incurred by the
latter
in connection
with the defense thereof other than reasonable costs of investigation.
No
Indemnifying
Party shall consent to entry of any judgment or enter into any settlement
without the
consent of the Indemnified Party 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
to such claim or litigation.
|
| (d) |
Indemnification
Payment.
The indemnification required by this Section 6 shall be made by
periodic
payments of the amount thereof during the course of the investigation
or
defense, as and
when bills are received or expense, loss, damage or liability is
incurred.
|
| (e) |
Survival
of Obligations.
The obligations of the Company and of the Holders under this Section
6 shall survive the completion of any offering of Registrable Securities
under this Agreement.
|
| (f) |
Contribution.
If the indemnification provided for in this Section 6 is unavailable
or
insufficient
to hold harmless an Indemnified Party, then each Indemnifying Party
shall
contribute
to the amount paid or payable to such Indemnified Party as a result
of the
losses, claims,
damages or liabilities referred to in this Section 6 an amount or
additional amount, as the
case may be, in such proportion as is appropriate to reflect the
relative
fault of the Indemnifying
Party or parties on the one hand and the Indemnified Party on the
other in
connection
with the statements or omissions which resulted in such losses, claims,
demands or liabilities as well as any other relevant equitable
considerations. The relative fault shall be determined by reference
to,
among other things, whether the untrue or alleged untrue statement
of
a material fact or the omission or alleged omission to state a material
fact relates to information
supplied by the Indemnifying Party or parties on the one hand or
the
Indemnified Party
on the other and the parties’ relative, intent, knowledge, access to
information and opportunity
to correct or prevent such untrue statement or omission. The amount
paid
to an Indemnified
Party as a result of the losses, claims, damages or liabilities referred
to in the first sentence
of this Section 6(f) shall be deemed to include any legal or other
expenses reasonably incurred by such Indemnified Party in connection
with
investigating or defending any action or claim
which is the subject of this Section 6. No person guilty of fraudulent
misrepresentation within
the meaning of Section 1l (f) of the Securities Act) shall be entitled
to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
|
| 7. |
Rule
144.
The Company shall file, on a timely basis, any reports required to
be
filed by it under the Securities Act and the Exchange Act so as to
enable
the Holders holding any Registrable Securities to
sell such Registrable Securities without registration under the Securities
Act within the limitations
of the exemptions provided by (i) Rule 144 under the Securities Act,
as
such Rule may be amended from time to time, or (ii) any similar rule
hereafter adopted by the Commission. Upon the
request of any such Holder, the Company shall deliver to such Holder
a
written statement as to whether it has complied with such
requirements.
|
| 8. |
Miscellaneous.
|
| (a) |
Specific
Performance.
The
parties hereto acknowledge that there may be no adequate remedy at
law if
any party fails to perform any of its obligations hereunder and that
each
party may be irreparably
harmed by any such failure, and accordingly agree that each party,
in
addition to any
other remedy to which it may be entitled at law or in equity, shall
be
entitled to compel specific
performance of the obligations of any other party under this Agreement
in
accordance with
the terms and conditions of this
Agreement.
|
| (b) |
Notices.
All demands, requests, notices and other communications required
or
permitted to be given under this Agreement shall be in writing and
shall
be deemed to have been duly given if delivered personally or sent
by
United States first class mail, postage prepaid, or by reputable
overnight
courier service, and to the parties hereto at the following address
or at
such other address
as any party hereto shall hereafter specify by notice to the other
party
hereto:
|
| (i) |
if
to the Company, addressed to:
SmartVideo
Technologies, Inc.
0000
Xxxxx Xxxxxxxxx
Xxxxx
000
Xxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxxx
|
With
a
copy
to:
Xxxxxxx
Xxxxxx Xxxxxx & Xxxxx, LLP
000
Xxxx
Xxx Xxxx Xxxx.
Xxxxx
0000
Xxxx
Xxxxxxxxxx, XX 00000-0000
Attention:
Xxxxxx X. Xxxxxxx, P.A.
| (ii) |
if
to the Holder, to their addresse set forth on Schedule 1 attached
hereto
|
Except
as
otherwise provided herein, all such demands, requests, notices and other
communications
shall be deemed to have been received on the date of personal delivery thereof
or on the third business day after the mailing thereof.
| (c) |
Severability.
If
any one or more of the provisions of this Agreement should be ruled
wholly
or partially
invalid or unenforceable by a court or other governmental body of
competent jurisdiction,
then: (i) the validity and enforceability of all provisions of this
Agreement not ruled to be invalid or unenforceable shall be unaffected;
(ii) the effect of the ruling shall be limited to the jurisdiction
of the
court or other government body making the ruling; (iii) the provision(s)
held wholly or partly invalid or unenforceable shall be deemed amended
and
the court
or other government body is authorized to reform the provision(s),
to the
minimum extent necessary
to render them valid and enforceable in conformity with the parties
intent
as manifested
herein; and (iv) if the ruling and/or
controlling principle of law or equity leading to the ruling is
subsequently overruled, modified, or amended by legislative, judicial,
or
administrative action, then the provision(s) in question as originally
set
forth in this Agreement shall be deemed valid and enforceable to
the
maximum extent permitted by the new controlling principle of law
or
equity.
|
| (d) |
Governing
Law.
This Agreement shall be governed by and construed in accordance with
the
internal
laws of Delaware, without regard to conflicts of law principles thereof.
Each of the parties
to this Agreement submits to the nonexclusive jurisdiction of the
United
States District Court
and the state courts sitting in Xxxxxx County, Georgia for purposes
of all
legal proceedings
arising out of or relating to this Agreement and the transactions
contemplated hereby.
Each of the parties to this Agreement irrevocably waives, to the
fullest
extent permitted
by law, any objection which a party may now or hereafter have to
the
laying of venue of
any such proceeding brought in any such court and any claim that
any such
proceeding brought
in such a court has been brought in an inconvenient
forum.
|
| (e) |
Headings.
The descriptive headings of the several sections and paragraphs of
this
Agreement are inserted for convenience only, and do not constitute
a part
of this Agreement and shall not affect in any way the meaning or
interpretation of this Agreement.
|
| (f) |
Entire
Agreement; Amendments.
This Agreement and the other writings referred to herein or delivered
pursuant hereto which form a part hereof contain the entire understanding
of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to its subject matter. This Agreement may be amended
and the
observance of any term of this Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively)
only by a written instrument duly executed by the Company and those
Holders holding a majority of Registrable Securities. Each Holder
of any
Registrable Securities at the time or thereafter outstanding shall
be
bound by an amendment or waiver authorized by this Section 9(e),
whether
or not any such Registrable Securities shall have been marked to
indicate
such consent.
|
| (g) |
No
Assignability.
This Agreement and all of the provisions hereof shall not be assigned
by
any Holder to any purchaser, transferee or assignee of any Registrable
Security.
|
| (h) |
Counterparts.
This Agreement may be executed in two or more counterparts, each
of which
shall be deemed an original, but all of which together shall constitute
one and the same instrument.
|
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
|
SMARTVIDEO
TECHNOLOGIES, INC.
|
||
| |
|
|
| By: |  |
|
|
Name:
Xxxxxxx X. Xxxxxxx, Xx.
Title:
Chief Executive Officer
|
||
|
THE
HOLDERS:
|
Xxxx
Financial Consulting Services
Attn:
Dick Xxxxxxx
Xxxx
Financial Consulting Services
000
Xxxxx Xxxxxx Xxxxx
Xxxxxx
Xxxxx, XX 00000
|
|
|
Holders Signature |
||
Schedule
1
Names
and Addresses of Xxxxxx
Xxxx
Financial Consulting Services
Attn:
Dick Xxxxxxx
Xxxx
Financial Consulting Services
000
Xxxxx
Xxxxxx Xxxxx
Xxxxxx
Xxxxx, XX 00000
