EXHIBIT 10.27
Xxxxxxxxx Technologies, Inc.'s
Sale Of
Xxxxxxxxx Laboratories, Inc.'s
Common Stock Agreement
Dated
October 7, 1996
-51-
TERMINATION AGREEMENT
THIS AGREEMENT is made and entered into this 7th day of October, 1996, by
and among XXXXXXXXX LABORATORIES, INC., a Delaware corporation ("Xxxxxxxxx"),
and XXXXXXXXX TECHNOLOGIES, INC., a Delaware corporation, ("BTI"). Xxxxxxxxx
and BTI may be referred to herein collectively as "Parties."
WHEREAS, pursuant to the Stock Purchase Agreement dated December 8, 1995
(the "1995 Agreement"). BTI sold, and Xxxxxxxxx purchased, 647,238 shares of
Xxxxxxxxx Laboratories, Inc. common stock; and
WHEREAS, under the terms of the 1995 Agreement, BTI granted Xxxxxxxxx a
perfected security interest in 88,260 ("Collateral") of the 432,475 shares of
the Xxxxxxxxx Laboratories, Inc. stock which it continued to hold (the
"Remaining Shares"), to secure certain covenants and agreements of BTI under the
1995 Agreement; and
WHEREAS, in order to maximize Xxxxxxxxx'x ability to utilize its net
operating loss carryforwards, BTI agreed in the 1995 Agreement to certain
restrictions upon the further sale and transfer of the Remaining Shares,
including the grant to Xxxxxxxxx of a right of first refusal with respect to the
Remaining Shares; and
WHEREAS, BTI now desires the removal and release of these restrictions on
transferability in order to sell the Remaining Shares; and
WHEREAS, in consideration of BTI's transfer and assignment of the
Collateral to Xxxxxxxxx and of the other terms and conditions of this Agreement,
Xxxxxxxxx will agree to the removal and release of these restrictions on
transferability to the extent set forth herein and Xxxxxxxxx has filed a
registration statement under form S-3 with the Securities and Exchange
Commission to facilitate any desired sale of the Remaining Shares in compliance
with the terms of this Agreement.
NOW, THEREFORE, in consideration of these Recitals and the provisions and
the respective agreements hereinafter set forth, the Parties hereto hereby agree
as follows:
1. REMOVAL AND RELEASE OF PRIOR RESTRICTIONS. Upon the terms and subject
to the conditions set forth in this Agreement, Xxxxxxxxx hereby:
1.1 Waives and releases the restrictions on transferability set forth
in Section 4.4 of the 1995 Agreement respecting the 344,215 shares of the
Xxxxxxxxx Laboratories, Inc. stock which BTI holds. Xxxxxxxxx agrees to
take all action reasonably necessary to cause the reissuance of the stock
certificate(s) evidencing such shares without the restrictive legend noting
the existence of the restrictions set forth in the 1995 Agreement.
1.2 Waives and releases the right granted by BTI in Section 4.5 of the
1995 Agreement to Xxxxxxxxx of a first right to purchase any portion of the
432,475 shares of the Xxxxxxxxx Laboratories, Inc. stock owned by BTI upon
the same terms and conditions of a bona fide offer received by BTI.
2. TRANSFER AND ASSIGNMENT OF COLLATERAL. Subject to the terms and
conditions set forth herein, BTI hereby sells, assigns, and transfers to
Xxxxxxxxx all of the 88,260 issued and outstanding shares of Xxxxxxxxx'x
common stock comprising the Collateral, free and clear of all liens,
encumbrances and adverse claims of whatsoever kind or nature. BTI shall
deliver to Xxxxxx Law Corporation, PC, as set forth in Section 4, below, a
stock assignment in form satisfactory to Xxxxxxxxx, with a medallion
certified signature stamp, sufficient to transfer title to such shares (the
Collateral) to Xxxxxxxxx.
3. RESTRICTIONS ON FUTURE SALE, ASSIGNMENT AND TRANSFER. The parties
acknowledge and agree that it is their intention to maximize Xxxxxxxxx'x
ability to utilize its net operating loss carryforwards following the sale of
all or any portion of the 432,475 shares (plus 5,000 additional shares
purchased by BTI since the 1995 Agreement) of the Xxxxxxxxx Laboratories,
Inc. stock which it continues to hold and which are not to be transferred to
Xxxxxxxxx hereunder. Therefore, as a condition to the releases and waivers
described in Section 1 above, BTI agrees that:
3.1 For a period of three (3) months following the date of this
Agreement, and subject to the restriction set forth in Subsection 3.2,
immediately below, BTI agrees that it shall not, nor shall it have any
right to, knowingly sell, assign, transfer or otherwise dispose of more
than 75,000 shares of the Xxxxxxxxx Laboratories, Inc. stock which it owns
to any single purchaser or any affiliated purchasers, without the prior
written consent of Xxxxxxxxx, which Xxxxxxxxx may grant or deny in its
sole and absolute discretion. For purposes of this Agreement, "affiliated
purchasers" shall mean purchasers who, directly or indirectly, influence,
control, are controlled by or are under common control, management or
ownership, with each other. Affiliated Purchasers shall include but not be
limited to voting trusts, relatives of any purchasers, and any director or
officer of a purchaser.
3.2 For a period of three (3) months following the date of this
Agreement, and subject to the restriction set forth in Subsection 3.1,
immediately above, BTI agrees (i) that it shall not, nor shall it have any
right to, sell, assign, or transfer any such shares at a price less than
One and 11/16 Dollars ($1.6875) per share; and (ii) that in the event it
receives an offer to purchase such shares at a price equal to or higher
than the price set forth in 3.2(i), above, BTI shall be required to sell,
assign or transfer such shares, subject to the other restrictions set forth
in this Agreement.
Nothing contained herein shall limit BTI's right or ability to exercise those
certain warrants to purchase additional shares of the common stock of Xxxxxxxxx
according to the terms and conditions set forth in the WARRANTS TO PURCHASE
COMMON STOCK OF XXXXXXXXX LABORATORIES, INC. dated August 29, 1996. BTI
understands and agrees that the subsequent sale by BTI of the shares received
upon the exercise of such warrants, if so exercised, shall be subject to the
terms, conditions and restriction set forth in this Agreement, and shall be
subject to such other restrictions as provided under applicable state and
federal securities laws. Any sale, assignment, transfer or other disposition
of shares of Xxxxxxxxx Laboratories, Inc. stock owned by BTI in contravention of
the terms of this Agreement shall be null and void.
4. CONSUMMATION OF RELEASE AND TRANSFER. As provided in Section 2
above, BTI shall forward to Xxxxxx Law Corporation, PC, the stock assignment
in form satisfactory to Xxxxxxxxx, with a medallion certified signature
stamp, sufficient to transfer title to the Collateral to Xxxxxxxxx. Upon the
subsequent receipt by Xxxxxx Law Corporation PC (i) of executed copies of
this Agreement from each of the Parties; and (ii) of notice, in the form
satisfactory to Xxxxxx Law Corporation, PC., of the proper consent of the
Board of Directors of Xxxxxxxxx,
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herein shall become effective. Xxxxxx Law Corporation PC shall then forward
executed copies of this Agreement and the stock power to the proper parties.
5. REPRESENTATIONS AND WARRANTIES OF BTI.
BTI represents and warrants to Xxxxxxxxx as follows:
5.1 EXISTENCE, GOOD STANDING, CORPORATE AUTHORITY, AND VALIDITY OF
AGREEMENTS. BTI is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorporation. BTI has all
requisite corporate power and authority to own and transfer the Collateral
pursuant to the terms and conditions of this Agreement. This Agreement
constitutes, and all agreements and documents contemplated hereby when executed
and delivered pursuant hereto for value received will constitute, the valid and
legally binding obligations of BTI enforceable in accordance with their terms.
The execution and delivery of this Agreement does not and the consummation of
the transactions contemplated hereby will not (i) require the consent of any
third party, or (ii) result in the breach of any term or provision of, or
constitute a default under, any agreement. Upon transfer of the Collateral by
BTI, Xxxxxxxxx will, as a result, receive good and marketable title to all of
the Collateral, free and clear of all security interests, liens, encumbrances,
charges, assessments, restrictions and adverse claims, except those granted by
Xxxxxxxxx and, those created under applicable securities laws.
5.2 LITIGATION. There are no actions, suits or proceedings at law
or in equity, or before or by any federal, state, municipal or other
governmental agency which affect the Collateral or the BTI's ability to enter
into or perform its obligations hereunder. There are no orders, judgments,
injunctions or decrees of any court or governmental agency with respect to which
BTI has been named or to which BTI is a party, which apply to or restrict BTI's
performance of this Agreement and the transaction contemplated hereunder.
5.3 NO MISREPRESENTATION OR OMISSION. No representation or warranty
by BTI in this Article 5 or in any other Article or Section of this Agreement,
or in any certificate or other document furnished or, if to be furnished by BTI
pursuant hereto upon delivery, contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary to make
the statements contained therein not misleading or will omit to state a material
fact.
6. REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX.
Xxxxxxxxx represents and warrants to BTI as follows:
6.1 EXISTENCE, GOOD STANDING, CORPORATE AUTHORITY, AND VALIDITY OF
AGREEMENTS. Xxxxxxxxx is a corporation duly incorporated, validly existing and
in good standing under the laws of its jurisdiction of incorporation. Xxxxxxxxx
has all requisite corporate power and authority to release and waive the
restrictions and rights set forth herein pursuant to the terms and conditions of
this Agreement. The execution and delivery of this Agreement does not and the
consummation of the transactions contemplated hereby will not require the
consent of any third party or violate or conflict with any provision of the
by-laws or articles or certificate of incorporation of Xxxxxxxxx as amended to
the date of this Agreement.
6.2 LITIGATION. There are no actions, suits or proceedings with
respect to Xxxxxxxxx involving claims by or against Xxxxxxxxx which are
pending or threatened against Xxxxxxxxx, at law or in equity, or before or by
any federal, state, municipal or other governmental agency which affect
Xxxxxxxxx'x ability to enter into or perform its obligations
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hereunder. There are no orders, judgments, injunctions or decrees of any
court or governmental agency with respect to which Xxxxxxxxx has been named
or to which Xxxxxxxxx is a party, which apply to or restrict Xxxxxxxxx'x
performance of this Agreement and the transaction contemplated hereunder.
6.3 NO MISREPRESENTATION OR OMISSION. No representation or
warranty by Xxxxxxxxx in this Article 6 or in any other Article or Section of
this Agreement, or in any certificate or other document furnished or, if to
be furnished by Xxxxxxxxx pursuant hereto upon delivery, contains or will
contain any untrue statement of a material fact or omits or will omit to
state a material fact necessary to make the statements contained therein not
misleading or will omit to state a material fact.
7. OTHER COVENANTS AND AGREEMENTS.
7.1 INSURANCE MATTERS. The parties hereby agree to terminate any
right: (i) of BTI to insure its employees under Xxxxxxxxx'x group health
insurance policy as provided in Section 4.2.1 of the 1995 Agreement; and (ii)
of Xxxxxxxxx to be named an additional insured under BTI's property, casualty
and D&O insurance policies as provided in Section 4.2.2 of the 1995 Agreement.
7.2 RESIGNATION OF DIRECTORS. Promptly after the sale, assignment,
transfer or other conveyance by BTI of an aggregate of 250,000 shares or more
of the issued and outstanding shares of the Xxxxxxxxx Laboratories, Inc. stock
owned by BTI, Xxxxxxx X. Xxxxxx and Xxxx X. Xxxxx shall each immediately resign
as an officer, agent and/or director of Xxxxxxxxx Laboratories, Inc. and
immediately cease to act for or on behalf of Xxxxxxxxx Laboratories, Inc.
Xxxxxxxxx'x timely receipt of these resignations shall be a condition subsequent
to the releases and waivers set forth in Section 1 of this Agreement, and BTI's
failure to timely deliver such resignations shall constitute a material breach
of this Agreement.
7.3 INDEMNIFICATION BY BTI. BTI shall to indemnify and hold
Xxxxxxxxx harmless against, and will reimburse Xxxxxxxxx on demand for, any
payment, loss, cost or expense (including reasonable attorney's fees and
reasonable costs of investigation incurred in defending against such payment,
loss, cost or expense or claim therefor) made or incurred by or asserted
against Xxxxxxxxx in respect of any omission, misrepresentation, breach of
warranty, or nonfulfillment or breach of any term, provision, covenant or
agreement on the part of BTI contained in this Agreement, or from any
misrepresentation in, or omission from any document to be furnished to
Xxxxxxxxx pursuant to this Agreement or from the failure of BTI to have and
deliver good and marketable title to the Collateral.
7.4 INDEMNIFICATION BY XXXXXXXXX.
7.4.1 INDEMNIFICATION. Xxxxxxxxx shall to indemnify and hold
BTI harmless against, and will reimburse BTI on demand for, any payment, loss,
cost or expense (including reasonable attorney's fees and reasonable costs of
investigation incurred in defending against such payment, loss, cost or expense
or claim therefor) made or incurred by or asserted against BTI in respect of (i)
any omission, misrepresentation, breach of warranty, or nonfulfillment of any
term, provision, covenant or agreement on the part of Xxxxxxxxx contained in
this Agreement, and (ii) from any misrepresentation in, or omission from, any
document to be furnished to BTI pursuant to this Agreement.
7.4.2 SECURITIES INDEMNIFICATION. Xxxxxxxxx shall indemnify and
hold
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harmless BTI against any and all loss, claim, damage or liability, joint or
several, to which BTI may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, or liability (or action with respect
thereto) arises out of or is based upon (a) any untrue statement or alleged
untrue statement of a material fact contained (i) in the Registration Statement,
the Effective Prospectus in respect of the Registration Statement; or (b) the
omission or alleged omission to state in the Registration Statement, the
Effective Prospectus or any amendment or supplement thereto of a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and shall reimburse BTI for any legal or other reasonable expenses
incurred by it in connection with investigating or defending against in
connection with any such loss, claim, damage, liability or action,
notwithstanding the possibility that payments for such expenses might later be
held to be improper, in which case the person receiving them shall promptly
refund them; except that the Xxxxxxxxx shall not be liable in any such case to
the extent, but only to the extent, that any such loss, claim, damage, or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Xxxxxxxxx through BTI by or
on behalf of BTI specifically for use in the preparation of the Registration
Statement, the Effective Prospectus or any amendment or supplement thereto.
7.5 RIGHT TO PROVIDE DEFENSE. Promptly after receipt by an
indemnified party under Section 7.3 and/or 7.4 above of written notice of the
commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such section, notify
the indemnifying party in writing of the claim or the commencement of that
action; the failure to notify the indemnifying party shall not relieve it of any
liability which it may have to an indemnified party, except to the extent that
the indemnifying party did not otherwise have knowledge of the commencement of
the action and the indemnifying party's ability to defend against the action was
prejudiced by such failure. Such failure shall not relieve the indemnifying
party from any other liability which it may have to the indemnified party. If
any such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice
from the indemnifying party to the indemnified party of its election to assume
the defense of such claim or action, the indemnifying party shall not be
liable to the indemnified party under such section for any legal or other
expenses subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
7.6 CONTRIBUTION. If the indemnification provided for in
Section 7.4.2 herein is unavailable or insufficient to hold harmless an
indemnified party, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of the losses, claims,
damages, or liabilities referred to in Section 7.4.2 above (a) in such
proportion as is appropriate to reflect the relative benefits received by the
Xxxxxxxxx on one hand and BTI on the other from the offering of the securities;
or (b) if the allocation provided by clause (a) above is not permitted by
applicable law, in such proportion as is appropriate to reflect the relative
benefits referred to in clause (a) above but also the relative fault of the
Xxxxxxxxx on the one hand and BTI on the other in connection with the statements
or omissions which resulted in such losses, claims, damages, or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Xxxxxxxxx and BTI shall be deemed to be in the same proportion
as the total net proceeds from the offering (before deducting expenses) received
by the Xxxxxxxxx bear to the total sales price and received by BTI. Relative
fault shall be determined by reference to, among other things, whether the
untrue statement of a material fact or the omission to state a material fact
relates to information supplied by the Xxxxxxxxx or BTI and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
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prevent such untrue statement or omission. For purposes of this Section 7.6,
the term "damages" shall include any counsel fees or other expenses
reasonably incurred by the Xxxxxxxxx or BTI in connection with investigating
or defending any action or claim which is the subject of the contribution
provisions of this Section 7.6. No person adjudged guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect of which contribution may be sought, it shall promptly give
written notice of such service to the party or parties from whom contribution
may be sought, but the omission so to notify such party or parties of any such
service shall not relieve the party from whom contribution may be sought from
any obligation it may have hereunder or otherwise (except as specifically
provided in Section 7.6 hereof).
8. MISCELLANEOUS.
8.1 NOTICE. Any notice required or permitted hereunder shall be
in writing and shall be sufficiently given if personally delivered or mailed by
certified or registered mail, return receipt requested, addressed as follows:
If to Xxxxxxxxx: Xxxxxxxxx Laboratories, Inc.
00000 X. 0xx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Copy to: Xxxx X. Xxxxxx, Esq.
Xxxxxx Law Corporation, P.C.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
If to BTI: Xxxxxxxxx Technologies, Inc.
000 X. Xxxxxx
Xxx Xxxxxxxxxx, XX 00000
Attention: President
(or to such other address as any party shall specify by written notice so
given), and shall be deemed to have been delivered as of the date so personally
delivered or mailed.
8.2 OTHER COSTS AND EXPENSES. All costs and expenses incurred
in connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such costs and expenses.
8.3 AUTHORITY TO EXECUTE AGREEMENT. By execution of this
Agreement, each individual who signs this Agreement on behalf his respective
principal individually represents and warrants that (i) he is a duly authorized
officer or agent of his principal, (ii) the principal has taken all action
necessary to approve the covenants, terms and agreements set forth herein, and
(iii) the execution of this Agreement by the undersigned individual shall bind
the principal to the terms and conditions set forth herein.
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8.4 EXECUTION OF ADDITIONAL DOCUMENTS. The Parties hereto will
at any time, and from time to time after the date of execution of this
Agreement, upon request of the other party, execute, acknowledge and deliver all
such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be required to carry out the intent of this
Agreement, and to transfer and vest title to any shares being transferred
hereunder, and to protect the right, title and interest in and enjoyment of all
of the shares sold, granted, assigned, transferred, delivered and conveyed
pursuant to this Agreement; provided, however, that this Agreement shall be
effective regardless of whether any such additional documents are executed.
8.5 BINDING EFFECT; BENEFITS, ASSIGNABILITY. This Agreement
shall be binding upon and shall inure to the benefit of the Parties hereto and
their respective heirs, successors, executors, administrators and assigns.
Notwithstanding anything contained in this Agreement to the contrary, nothing
in this Agreement, expressed or implied, is intended to confer on any person
other than the Parties hereto or their respective heirs, successors, executors,
administrators and assigns any rights, remedies, obligations or liabilities
under or by reason of this Agreement. Neither this Agreement nor any of the
Parties' rights hereunder shall be assignable by any party hereto without the
prior written consent of the other Parties hereto. This Agreement and all
agreements and documents contemplated hereby constitute one agreement and are
interdependent upon each other in all respects.
8.6 ENTIRE AGREEMENT. This Agreement, together with the
other documents contemplated hereby, constitute the final written expression
of all of the agreements between the Parties, and is a complete and exclusive
statement of those terms. It supersedes all understandings and negotiations
concerning the matters specified herein. Any representations, promises,
warranties or statements made by either party that differ in any way from the
terms of this written Agreement and the other documents contemplated hereby,
shall be given no force or effect. The Parties specifically represent, each
to the other, that there are no additional or supplemental agreements between
them related in any way to the matters herein contained unless specifically
included or referred to herein. No addition to or modification of any
provision of this Agreement shall be binding upon any party unless made in
writing and signed by all Parties.
8.7 GOVERNING LAW. This Agreement and all matters and issues
collateral thereto shall be construed according to the laws of the State of
Colorado, except that issues governed by a state's corporate code, including
without limitation matters of corporate governance, shall be governed by the
laws of the Party's state of incorporation.
8.8 MEDIATION; ARBITRATION. Notwithstanding anything to the
contrary herein provided, the Parties agree to submit disputes under this
Agreement which they are unable to resolve to mediation under the Commercial
Mediation Rules of the American Arbitration Association. Any dispute or
controversy arising out of or relating to this Agreement which is not resolved
through mediation shall be submitted and settled by arbitration under the Rules
of Conciliation and Arbitration of the International Chamber of Commerce (the
"ICC") then in effect. There shall be one arbitrator, and such arbitrator shall
be chosen by mutual agreement of the parties in accordance with ICC rules. The
arbitration proceedings shall take place at such location as the Parties shall
mutually agree upon, or if the Parties are unable to agree upon a location, then
Chicago, Illinois. The arbitrator shall apply the laws of the applicable state
to all issues in dispute, in accordance with Section 8.5 hereof. The findings
of the arbitrator shall be final and binding on the parties, and may be enforced
in any court of competent jurisdiction.
8.9 SURVIVAL AND SEVERABILITY. All of the terms, conditions,
warranties and representations contained in this Agreement shall survive, in
accordance with their terms, delivery by Xxxxxxxxx of the consideration to be
given by it hereunder and delivery by BTI of
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the consideration to be given by it hereunder, and shall survive the execution
hereof for the period provided herein. If for any reason whatsoever, any one or
more of the provisions of this Agreement shall be held or deemed to be
inoperative, unenforceable or invalid as applied to any particular case or in
all cases, such circumstances shall not have the effect of rendering such
provision invalid in any other case or of rendering any of the other provisions
of this Agreement inoperative, unenforceable or invalid.
8.10 WAIVERS. Either Xxxxxxxxx or BTI may, by written notice
to the other, (i) extend the time for the performance of any of the obligations
or other actions of the other under this Agreement; (ii) waive any inaccuracies
in the representations or warranties of the other contained in this Agreement or
in any document delivered pursuant to this Agreement; (iii) waive compliance
with any of the conditions or covenants of the other Party contained in this
Agreement; or (iv) waive performance of any of the obligations of the other
Party under this Agreement. Except as provided in the preceding sentence, no
action taken pursuant to this Agreement, including without limitation any
investigation by or on behalf of any Party, shall be deemed to constitute a
waiver, by the Party taking such action, of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any Party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
8.11 HEADINGS; INTERPRETATION OF AGREEMENT. Headings of the
Articles and Sections of this Agreement are for the convenience of the Parties
only, and shall be given no substantive or interpretive effect whatsoever. The
Parties hereto each represent and acknowledge that they have reviewed this
Agreement with the assistance of their respective counsel. The Parties further
acknowledge that each shall bear co-extensive and identical responsibility for
the language of this Agreement, and that any ambiguity which may exist or
purportedly exist therein shall be attributed equally to the Parties.
8.12 ATTORNEY'S FEES. If any Party shall commence any action or
proceeding against another Party in order to enforce the provisions hereof, or
to recover damages as the result of the alleged breach of any of the provisions
hereof, the prevailing Party therein shall be entitled to recover all reasonable
costs incurred in connection therewith, including, but not limited to,
reasonable attorneys' fees.
8.13 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original but all of
which shall constitute one and the same instrument. Evidence of the execution
of this Agreement by any party may be provided by facsimile and if so
provided shall be legal, valid and binding on any party executing in such
manner.
8.14 APPROVAL OF XXXXXXXXX'X BOARD OF DIRECTORS. This Agreement
and the effectiveness and enforceability of the terms and provisions included
herein is specifically contingent upon the approval, by the Board of Directors
of Xxxxxxxxx, no later than October 18, 1996. In the event approval of the
Board of Directors is not attained by such date, this agreement shall be null
and void.
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IN WITNESS WHEREOF, the Parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year hereinabove
first set forth.
XXXXXXXXX TECHNOLOGIES, INC.
By: (Illegible)
-----------------------------------
Its: President
XXXXXXXXX LABORATORIES, INC.
By:
-----------------------------------
Its:
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IN WITNESS WHEREOF, the Parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year hereinabove
first set forth.
XXXXXXXXX TECHNOLOGIES, INC.
By:
-----------------------------------
Its:
XXXXXXXXX LABORATORIES, INC.
By: (Illegible)
-----------------------------------
Its: CEO
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