EXHIBIT 10.19
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT is made as of the 15th day of May,
1996 (this "Agreement") between Styles On Video, Inc., a Delaware corporation
(the "Company"), and K. Xxxxxx Xxxxxxx, an individual ("Xxxxxxx").
WITNESSETH:
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WHEREAS, the Company has entered into a Note and Preferred Stock Purchase
Agreement, dated May 14, 1996 (the "Note Agreement"), among the Company, Xxxxxxx
Xxxxx, Inc., a California corporation and subsidiary of the Company ("FYI"), and
International Digital Investors, L.P., a Delaware limited partnership ("IDI").
WHEREAS, the Company issued to Xxxxxxx warrants to purchase 250,000
shares of the Common Stock of the Company (the "Warrants"), pursuant to
Xxxxxxx'x Consulting Agreement with the Company dated as of April 19, 1996.
WHEREAS, the Company desires to grant to Xxxxxxx, as provided herein,
certain registration rights with respect to the Warrants and the shares of
Common Stock issuable to the Xxxxxxx upon exercise of the Warrants.
NOW, THEREFORE, in consideration of the mutual covenants and undertaking
contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
subject to and on the terms and conditions herein set forth, the parties hereto
agree as follows:
ARTICLE 1
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CERTAIN DEFINITIONS
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Terms with initial capital letters not otherwise defined in this
Agreement have the meanings set forth in Exhibit A to the Note Agreement. In
addition, the following terms with initial capital letters have the following
meanings:
1.1 "BUSINESS DAY" means any day on which the American Stock Exchange
is open for trading.
1.2 "CLOSING DATE" means the date of this Agreement.
1.3 "COMMON STOCK" means the Common Stock, par value $.001 per share
of the Company, and any securities of the Company or any successor which may be
issued on or after the date hereof in respect of, or in exchange for, shares of
Common Stock pursuant to merger, consolidation, stock split, stock dividend,
recapitalization of the Company or otherwise.
1.4 "ELIGIBLE SECURITIES" means any and all of the Warrants and any
shares of Common Stock issuable upon exercise of
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the Warrants, whether held by Xxxxxxx or any direct or indirect transferee of
Xxxxxxx.
As to any proposed offer or sale of Eligible Securities, such
securities shall cease to be Eligible Securities with respect to such proposed
offer or sale when (i) registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement or (ii) all of such securities are permitted to be distributed
concurrently pursuant to Rule 144 (or any successor provision to such Rule)
under the Securities Act or are otherwise freely transferable to the public
without registration pursuant to Section 4(1) of the Securities Act. In the
event the Company prepares a registration statement pursuant to Article 3 hereof
which becomes effective and the Holder fails to dispose of Eligible Securities
included therein at the request of such Holder, such securities shall remain
Eligible Securities but the Holder shall be responsible for assuming that
portion of the Registration Expenses in connection with such registration as
equals that portion of Eligible Securities originally to be sold pursuant to
such registration which were included therein at the request of such Holder but
were not so sold.
1.5 "HOLDER" means Xxxxxxx and each of Xxxxxxx'x successive successors
and assigns who acquires Eligible
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Securities, directly or indirectly, from Xxxxxxx or from any successive
successor or assign of Xxxxxxx.
1.6 "PERSON" means an individual, a partnership (general or limited),
corporation, joint venture, business trust, cooperative, association or other
form of business organization, whether or not regarded as a legal entity under
applicable law, a trust under vivos or testamentary), an estate of a deceased,
insane or incompetent person, a quasi-governmental entity, a government entity,
a government or any agency, authority, political subdivision or other
instrumentality thereof, or any other entity.
1.7 "REGISTRATION EXPENSES" means all expenses incident to the
Company's performance of or compliance with the registration requirements set
forth in this Agreement including, without limitation, the following: (a) the
fees, disbursements and expenses of the Company's counsel(s) and accountants in
connection with the registration of Eligible Securities to be disposed of under
the Securities Act, (b) all expenses in connection with the preparation,
printing and filing of the registration statement, any preliminary prospectus or
final prospectus, any other offering document and amendments and supplements
thereto and the mailing and delivering of copies thereof to the underwriters and
dealers, (c) the cost of printing or producing any agreement(s) among
underwriters, underwriting agreement(s) and blue sky or legal investment
memoranda, any
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selling agreements and any other documents in connection with the offering, sale
or delivery of Eligible Securities to be disposed of, (d) all expenses in
connection with the qualification of Eligible Securities to be disposed of for
offering and sale under state securities laws, including the fees and
disbursements of counsel for the underwriters in connection with such
qualifications and in connection with any blue sky and legal investment surveys,
(e) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc., of the terms of the sale of Eligible
Securities to be disposed of and (f) fees and expenses incurred in connection
with the listing of Eligible Securities on each securities exchange on which
securities of the same class are then listed; provided, however, that
Registration Expenses with respect to any registration pursuant to this
Agreement shall not include (x) underwriting discounts or commissions
attributable to Eligible Securities, (y) transfer taxes applicable to Eligible
Securities or (z) SEC filing fees with respect to Eligible Securities to be sold
by the Holder thereof.
1.8 "SEC" means the Securities and Exchange Commission.
1.9 "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated thereunder, all as
the same shall be in effect at the relevant time.
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1.10 "ADDITIONAL REGISTRABLE SECURITIES" means any securities of the
Company, including the IDI Securities, the holders of which have been granted
registration rights by the Company.
1.11 "IDI SECURITIES" means "Eligible Securities" as defined in that
certain Amended and Restated Registration Rights Agreement, dated as of the date
hereof, by and between the Company and IDI, as the same may be amended or
modified from time to time.
ARTICLE 2
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EFFECTIVENESS
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2.1 Effectiveness of Registration Rights. The registration rights
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granted pursuant to Article 3 hereof shall become effective on the Closing date
and terminate when there cease to be Eligible Securities.
ARTICLE 3
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PIGGYBACK REGISTRATION
----------------------
3.1 NOTICE AND REGISTRATION. If the Company proposes to register any
of its securities under the Securities Act (whether for its own account or for
the account of any other Person, or both) (the "Primary Securities") on a form
and in a manner which would permit registration of Eligible Securities for
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sale to the public under the Securities Act, it will give prompt written notice
to all Holders of its intention to do so. Such notice shall specify, at a
minimum, the number and class of the Primary Securities so proposed to be
registered, the proposed date of filing of such registration statement, and
proposed means of distribution of such Primary Securities, any proposed managing
underwriter or underwriters of such Primary Securities and a good faith estimate
by the Company of the proposed maximum offering price thereof, as such price is
proposed to appear on the facing page of such registration statement. Upon the
written request of any Holder delivered to the Company within 5 Business Days
after the giving of any such notice (which request shall specify the number of
Eligible Securities intended to be disposed of by such Holder and the intended
method of disposition thereof), the Company will use reasonable efforts to
effect, in connection with the registration of the Primary Securities, the
registration under the Securities Act of all Eligible Securities which the
Company has been so requested to register by such Holder (the "Selling
Stockholder"), to the extent required to permit the disposition (in accordance
with the intended method or methods thereof as aforesaid) of Eligible Securities
so to be registered, provided that
(a) if, at any time after giving such written notice of its
intention to register any Primary Securities and prior to the effective
date of the registration statement filed in connection with such
registration, the
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Company shall be unable to or shall determine for any reason not to
register such Primary Securities, the Company may, at its election, give
written notice of such determination to such Holder and thereupon the
Company shall be relieved of its obligation to register such "Eligible
Securities" in connection with the registration of such Primary
Securities (but not from its obligation to pay Registration Expenses to
the extent incurred in connection therewith as provided in Section 3.2);
(b) In the event that any managing underwriter of the Primary
Securities shall advise the Company, any holders for whose account any
such Primary Securities are being registered (the "Requesting
Stockholders"), the Selling Stockholders and any holders requesting to
have Additional Registrable Securities included in such registration (the
"Additional Stockholders") in writing that, in its opinion, the inclusion
in the registration statement of all of the Primary Securities, Eligible
Securities and Additional Registrable Securities sought to be registered
by the respective holders thereof creates a substantial risk that the
price per unit that the Company and such holders will derive from such
registration will be materially and adversely affected or that the
offering would otherwise be materially and adversely affected, then the
Company will include in such registration statement such number of
Primary Securities, Eligible Securities and
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Additional Registrable Securities as the Company, the Requesting
Stockholders, the Selling Stockholders and the Additional Stockholders
are so advised can be sold in such offering without such an effect (the
"Maximum Number"), as follows and in the following order of priority:
(i) first, the number of Primary Securities, if any, that the Company, in
its reasonable judgment and acting in good faith and in accordance with
sound financial practice, shall have determined to include in such
registration, (ii) second, if and to the extent that the number of
Primary Securities sought to be registered under clause (i) is less than
the Maximum Number, the number of Primary Securities sought to be
registered by each Requesting Stockholder, if any, the number of Eligible
Securities sought to be registered by each Selling Stockholder and the
number of IDI Securities, if any, sought to be registered by each holder
thereof, pro rata, if necessary, in proportion to the number sought to
be registered by such Requesting Stockholder, a Selling Stockholder or
holder of IDI Securities, as applicable, relative to the number sought to
be registered by all Requesting Stockholders, Selling Stockholders and
holders of IDI Securities and (iii) third, if and to the extent that the
number of Primary Securities, Eligible Securities and IDI Securities
sought to be registered under clauses (i) and (ii) is less than the
Maximum Number, any
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Additional Registrable Securities sought to be registered by the
Additional Stockholders, if any.
(c) The Company shall not be required to effect any registration
of Eligible Securities under this Article 3 incidental to the
registration of any of its securities in connection with mergers,
acquisitions, exchange offers, subscription offers, dividend reinvestment
plans or stock options or other employee benefit plans, and
(d) The Company shall not be required to register any Eligible
Securities if the intended method or methods of distribution for the
Eligible Securities is from time to time in multiple transactions.
3.2 REGISTRATION AND QUALIFICATION. The Company (as between the
Company and any Holder) shall be responsible for the payment of all Registration
Expenses in connection with any registration pursuant to this Article 3.
ARTICLE 4
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REGISTRATION PROCEDURES
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4.1 REGISTRATION AND QUALIFICATION. If and whenever the Company is
required to use reasonable efforts to effect the registration of any Eligible
Securities under the Securities Act
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as provided in Article 3, the Company will as promptly as is practicable:
(a) prepare, file and use reasonable efforts to cause to become
effective a registration statement under the Securities Act regarding the
Eligible Securities to be offered.
(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 keep such registration statement
effective and to comply with the provisions of the Securities Act with
respect to the disposition of all Eligible Securities until the earlier
of such time as all of such Eligible Securities have been disposed of in
accordance with the intended methods of disposition by the Holders set
forth in such registration statement or the expiration of six (6) months
after such registration statement becomes effective.
(c) furnish to all Holders and to any underwriter (which term for
purposes of this Agreement shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act and
any placement agent or sales agent of such Eligible Securities) one
executed copy each and such number of
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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 included in such registration
statement (including each preliminary prospectus and any summary
prospectus), in conformity with the requirements of the Securities Act,
such documents incorporated by reference in such registration statement
or prospectus, and such other documents as any Holder or such underwriter
may reasonably request.
(d) use reasonable efforts to register or qualify all Eligible
Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as any Holder or any
underwriter of such eligible Securities shall reasonably request, and do
any and all other acts and things which may be necessary or advisable to
enable any Holder or any underwriter to consummate the disposition in
such jurisdictions of the eligible Securities by such registration
statement, except the Company shall not for any such purpose be required
to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to consent to general service of
process in any such jurisdiction.
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(e) promptly notify the selling Holders of Eligible Securities and
the managing underwriters, if any, thereof and confirm such advice in
writing, (i) when such registration statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such registration
statement or any post-effective amendment, when the same has become
effective, (ii) of any comments by the SEC and by the blue sky or
securities commissioner or regulator of any state with respect thereto or
any request by the SEC Of such commissioner for amendments or supplements
to such registration statement or prospectus or for additional
information, (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of such registration statement or the
initiation or threatening of any proceedings for that purpose, (iv) if at
any time the representations and warranties by the Company contemplated
by Section 4.1(h) or Section 4.2 hereof cease to be true and correct in
all material respect, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Eligible Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (vi) at any time when
a prospectus is required to be delivered under the Securities Act, that
such registration statement, prospectus, prospectus amendment or
supplement or post-
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effective amendment, or any document incorporated by reference in any of
the foregoing, 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 statement therein not misleading in light of the circumstances
then existing (it being understood that the Company shall file any
necessary amendments or take any other action necessary to correct such
misleading information),
(f) use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date.
(g) use its reasonable efforts to obtain the consent or approval
of each governmental agency or authority whether federal, state or local,
which may be required to effect such registration or the offering or sale
in connection therewith or to enable the Holders to offer, or to
consummate the disposition of, the Eligible Securities.
(h) whether or not an agreement of the type referred to in Section
4.2 hereof is entered into and whether or not any portion of the
offerings contemplated by such registration statement is an underwritten
offering
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or is made through a placement or sales agent or and other entity, (i)
make such representations and warranties to the Holders and the
underwriters, if any thereof in form, substance and scope as are
customarily made in connection with an offering of common stock or other
equity securities pursuant to any appropriate agreement and/or a
registration statement filed on the form applicable to such registration,
(ii) obtain opinions of inside and outside counsel to the Company in
customary form and covering such matters, of the type customarily covered
be such opinions as the managing underwriters, if any, and as the Holders
may reasonably request, (iii) obtain a "cold comfort" letter or letters
from the independent certified public accountants of the Company
addressed to the Holders and the underwriters, if any, thereof dated (I)
the effective date of such registration statement and (II) the date of
the closing under the underwriting agreement relating thereto, such
letter or letters to be un customary form and covering such matters of
the type customarily covered, from time to time by letters of such type
and such other financial matters as the managing underwriters, if any,
and as the Holders may reasonable request, (iv) deliver such documents
and certificates, including officers' certificates, as may be reasonably
requested by the Holders and the placement or sales agent, if any,
therefor and the managing underwriters, if any, thereof to evidence the
accuracy of the representations
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and warranties made pursuant to clause (i) above and the compliance with
or satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company,
and (v) undertake such obligations relating to expense reimbursement,
indemnification and contribution as are provided Article 6 hereof.
(i) comply with all applicable rules and regulations of the SEC,
and make generally available to its securityholders, as soon as
practicable but in any event not later than eighteen months after the
effective date of such registration statement, an earnings statement of
the Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder), and
(j) use its best efforts to list prior to the effective date of
such registration statement subject to notice of issuance, the Eligible
Securities covered by such registration statement on any securities
exchange on which securities of the same class are then listed or if such
class is not then so listed, to have the Eligible Securities accepted for
quotation for trading on the Nasdaq National Market (or a comparable
interdealer quotation system then in effect).
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The Company may require any Holder to furnish the Company such information
regarding such Holder and the distribution of such securities as the Company may
from time to time reasonably request in writing and as shall be required by law
or by the SEC in connection with any registration.
4.2 UNDERWRITING. In the event that any registration pursuant to
Article 3 hereof shall involve, in whole or in part, an underwritten offering,
the Company may require Eligible Securities requested to be registered pursuant
to Article 3 to be included in such underwriting on the same terms and
conditions as shall be applicable to the Primary Securities being sold through
underwriters under such registration. In such case, the Holders of Eligible
Securities on whose behalf Eligible Securities are to be distributed by such
underwriters shall be parties to any such underwriting agreement. Such
agreement shall contain such representations and warranties by the Holders and
such other terms and provisions as are then customarily contained in
underwriting agreements with respect to secondary distributions, including,
without limitation, indemnities and contribution to the effect and to the extent
provided in Article 6. The representations and warranties in such underwriting
agreement by, and the other agreements on the part of, the Company to and for
the benefit of such underwriters shall also be made to and for the benefit of
such holders of Eligible Securities.
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4.3 WITHDRAWALS. Any Holder having notified the Company of its desire
to include any or all of its Eligible Securities in a registration statement
pursuant to Article 3 hereof shall have the right to withdraw such notice with
respect to any or all of the Eligible Securities designated for registration
thereby by giving written notice to such effect to the Company at least two
Business Days prior to the anticipated effective date of such registration
statement. In the event of any such withdrawal, the Company shall amend such
registration statement and take such other actions as may be necessary so that
such Eligible Securities are not included in the applicable registration and not
sold pursuant thereto, and such Eligible Securities shall continue to be
Eligible Securities in accordance herewith. The withdrawing Holder shall be
responsible for assuming that portion of the Company's expenses in connection
with such registration as equals the portion of Eligible Securities originally
to be sold pursuant to such registration which were to be sold by the
withdrawing Holder. No such withdrawal shall affect the obligations of the
Company with respect to Eligible Securities not so withdrawn.
ARTICLE 5
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PREPARATION; REASONABLE INVESTIGATION
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5.1 PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement registering Eligible
Securities under the Securities
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Act, the Company will give all Holders and the underwriters, if any, and their
respective counsel and accountants, such reasonable and customary access to its
books and records and such opportunities to discuss the business of the Company
with its directors, officers, employees, counsel and the independent public
accountants, who have certified its financial statements as shall be necessary,
in the opinion of any Holder and such underwriters or their respective counsel,
to conduct a reasonable investigation within the meaning of the Securities Act.
ARTICLE 6
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INDEMNIFICATION AND CONTRIBUTION
--------------------------------
6.1 INDEMNIFICATION AND CONTRIBUTION.
(a) INDEMNIFICATION AND CONTRIBUTION. In the event of any
registration of any Eligible Securities hereunder, the Company will enter
into customary indemnification arrangements to indemnify and hold
harmless all selling Holders, their directors and officers, if any, each
Person who participates as an underwriter in the offering or sale of such
securities, each officer and director of each underwriter, and each
Person, if any, who controls such seller or any such underwriter within
the meaning of the Securities Act against any losses, claims, damages,
and expenses joint or several, to which such Person may be subject under
the
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Securities Act or otherwise insofar as such losses, claims, damages,
liabilities or expenses (or actions or proceedings in respect thereof)
arise out of or are based upon (i) 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 Acts any
preliminary prospectus or final prospectus included therein, or any
amendment or supplement thereto, or any document incorporated be
reference therein, or (ii) 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, and the Company will
periodically reimburse each such Person for and legal or ally other
expenses reasonably incurred by such Person in connection with
investigating or defending and such loss, claim, liability, action or
proceeding, provided that the Company shall not be liable 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 an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, and such
preliminary prospectus or final prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by any selling Holder or such underwriter for use in the
preparation thereof. Such indemnity shall
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remain in full force and effect regardless any investigation made by or
on behalf of any Holder or any such Person and shall survive the transfer
of such securities by such selling Holder. The Company also shall agree
to make provision for contribution as shall be reasonably requested by
such selling Holder or any underwriter in circumstances where such
indemnity is held unenforceable.
(b) All selling Holders, by virtue of exercising their
registration rights hereunder, agree and undertake to enter into
customary indemnification arrangements to indemnify and hold harmless (in
the same manner and to the same extent as set forth in clause (a) of this
Article 6) the Company, each director of the Company, each officer of the
Company who shall sign such registration statement, each Person who
participates as an underwriter in the offering or sale of such
securities, each officer and director of each underwriter, each Person,
if any, who controls the Company or any such underwriter within the
meaning of the Securities Act, with respect to any statement in or
omission from such registration statement, any preliminary prospectus or
final prospectus included therein, or any amendment or supplement
thereto, if such statement or omission was made in reliance upon and in
conformity with written information concerning such Holder furnished by
it to the Company for use in the preparation
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thereof. Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of the Company or any such
director, officer or controlling Person and shall survive the transfer of
the registered securities by any Holder. Holders also shall agree to
make provision for contribution as shall be reasonably requested by the
Company or any underwriters in circumstances where such indemnity is held
unenforceable. The indemnification and contribution obligations of any
Holder shall in every case be limited to the aggregate proceeds received
(net of any underwriting fees and expenses and other transaction costs)
by such Holder in such registration,
ARTICLE 7
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TRANSFER OF REGISTRATION RIGHTS
-------------------------------
7.1 TRANSFER OF REGISTRATION RIGHTS. Any Holder may transfer the
registration rights granted hereunder to any other Person in respect of Eligible
Securities held by such Holder; provided that such Holder (or and such permitted
transferee) shall retain registration rights as to any retained Eligible
Securities.
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ARTICLE 8
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RULE 144
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8.1 RULE 144. The Company covenants to and with each Holder of
Eligible Securities that to the extent it shall be required to do so under the
Exchange Act, the Company shall use its best efforts timely to file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including, but not limited to, the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the SEC
under the Securities Act) and the rules and regulations adopted by the SEC
thereunder, and shall use its best efforts, to take such further action as any
Holder may reasonably request, all to the extent required from time to time to
enable the Holders to sell Eligible Securities without registration under the
Securities Act within the limitations of the exemption provided by Rule 144
under the Securities Act, as such Rule may be amended from time to time or any
similar rule or regulation hereafter adopted by the SEC. Upon the request of
any Holder of Eligible Securities, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
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ARTICLE 9
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MISCELLANEOUS
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9.1 CAPTIONS. The captions or headings in this Agreement are for
convenience and reference only, and in no way define, describe, extend or limit
the scope or intent of this Agreement.
9.2 SEVERABILITY. If any clause, provision or section of this
Agreement shall be invalid, illegal or unenforceable, the invalidity, illegality
or unenforceability of such clause, provision or section shall not affect the
enforceability or validity of any of the remaining clauses, provisions or
sections hereof to the extent permitted by applicable law.
9.3 GOVERNING LAW. This Agreement shall be governed by and be
construed and enforced in accordance with the laws of the State of California
without giving effect to conflicts of law principles.
9.4 CONSENT TO JURISDICTION; SERVICE OF PROCESS; WAIVER OF JURY TRIAL.
(a) The parties to this Agreement hereby irrevocably submit to the
exclusive jurisdiction of any Federal court located in Los Angeles,
California over any suit, action or proceeding arising out of or relating
to
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this Agreement. The parties hereby irrevocably waive, to the fullest
extent permitted by applicable law any objection which they may now or
hereafter have to the laying of venue of any such suit, action or
proceeding brought in such court. The parties agree that, to the fullest
extent permitted by applicable law, a final and nonappealable judgment in
any such action or proceeding brought in such court shall be conclusive
and binding upon the parties.
(b) The parties hereby irrevocably waive any rights they may have
in any court, state or federal, to a trial by jury in any case of any
type that relates to or arises out of this Agreement or the transactions
contemplated herein.
9.5 SPECIFIC PERFORMANCE. The Company acknowledges that it would be
impossible to determine the amount of damages that would result from any breach
by it of any of the provisions of this Agreement and that the remedy at law for
any breach or threatened breach, of any of such provisions would likely be
inadequate and, accordingly, agrees that each Holder shall, in addition to and
other debts or remedies which it may have, be entitled to seek such equitable
and injunctive relief as may be available from any court of competent
jurisdiction to compel specific performance of, or restrain the Company from
violating any of such provisions. In connection with any action or
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proceeding for injunctive relief the Company hereby waives the claim or defense
that a remedy at law alone is adequate and agrees, to the maximum extent
permitted by law, to have each provision of this Agreement specifically enforced
against it, without the necessity of posting bond or other security against it,
and consents to the entry of injunctive relief against it enjoining or
restraining any breach or threatened breach of this Agreement.
9.6 MODIFICATION OF AMENDMENT. This Agreement may not be changed,
modified, discharged or amended, except by an instrument signed by all of the
parties hereto.
9.7 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
9.8 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
and understanding among the parties and supersedes any prior understandings and
or written or oral agreements among them respecting the subject matter herein.
9.9 NOTICES. All notices, requests, demands, consents and other
communications required or permitted to be given pursuant to this Agreement
shall be in writing and delivered by hand, by telecopy, by overnight courier,
delivery service or by certified mail return receipt requested, postage prepaid.
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Notices shall be deemed given when actually received, which shall be deemed to
be not later than the next Business Day if sent by overnight courier or after
five Business Days if sent by mail.
9.10 SUCCESSOR TO COMPANY, ETC. This Agreement shall be binding upon,
and inure to the benefit of the Company's successors and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
cause this Agreement to be executed as of the day and year first above written.
The Company
STYLES ON VIDEO, INC.
By:
---------------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
--------------------------------------------------
K. Xxxxxx Xxxxxxx
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