EXHIBIT 99.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of
____________, 200__, between xxxxx.xxx, Inc., a Georgia corporation located at
0000 Xxxxx Xxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (the "Company"), and the
undersigned investors (each an "Investor" and collectively, the "Investors").
WHEREAS, the Company will issue and sell units to Investors consisting of
four shares of 8% cumulative convertible preferred stock and a warrant to
purchase two shares of common stock (the "Units") pursuant to Subscription
Agreements between the Company and each Investor (collectively, the
"Subscription Agreements"); and
WHEREAS, in connection with the execution of the Subscription Agreements,
the Investors have requested and the Company has agreed to grant to the
Investors certain registration rights on the terms set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have the
following meanings:
1.1 Closing Date means the date of closing of the Private Placement.
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1.2 Common Stock means the Common Stock, par value $.01 per share, of
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the Company and any capital stock for or into which such Common Stock hereafter
is exchanged, converted, reclassified or recapitalized by the Company pursuant
to a business combination to which the Company is a party.
1.3 Exchange Act means the Securities Exchange Act of 1934.
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1.4 Form SB-2 means such form under the Securities Act as in effect on
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the date hereof or any registration form under the Securities Act subsequently
adopted by the SEC which permits inclusion or incorporation of substantial
information by reference to other documents filed by the Company with the SEC.
1.5 Holder means that Investor or those Investors who hold Registrable
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Securities or any permitted assignee of Registrable Securities.
1.6 Person means any individual, firm, corporation, or other entity,
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and shall include any successor (by merger or otherwise) of such entity.
1.7 Preferred Stock means the Series A Preferred Stock of the Company.
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1.8 Private Placement means the issuance of Units pursuant to the
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Subscription Agreements.
1.9 Register, registered and registration refers to a registration
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effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
1.10 Registrable Securities means (i) the shares of Common Stock
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issuable or issued upon conversion of the Preferred Stock and the exercise of
the warrants, and (ii) any other shares
of Common Stock issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
shares listed in (i); provided, however, that the foregoing definition shall
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exclude in all cases any Registrable Security sold by a Person in a transaction
in which his or her rights under this Agreement are not assigned pursuant to
Section 9. Notwithstanding the foregoing, Common Stock shall only be treated as
Registrable Securities if and so long as they have not been (a) sold to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, or (b) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions, and restrictive legends
with respect thereto, if any, are removed upon the consummation of such sale.
1.11 SEC means the Securities and Exchange Commission.
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1.12 Securities Act means the Securities Act of 1933 and the rules and
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regulations thereunder.
2. REGISTRATION RIGHTS.
2.1 Form SB-2 Registration. The Company shall prepare and file with
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the SEC a Form SB-2 registration statement covering the Registrable Securities
no later than 60 days after the Closing Date (the "Shelf Registration
Statement"). The Company shall use its reasonable efforts to have the Shelf
Registration Statement declared effective as soon as reasonably practicable
following the filing thereof, and to keep such registration statement
continuously effective under the Securities Act until the earlier of (a) the
date on which the Holders no longer hold any Registrable Securities or (b) the
date on which all of the Registrable Securities held or subsequently held by the
Holders may be resold in a public transaction without registration under the
Act, including, but not limited to, pursuant to Rule 144 under the Act.
2.2 "Piggy Back" Registration.
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a. If the Company proposes to file a registration statement at any
time during the six months following the termination of the Private Placement
with respect to any class of equity securities of the Company, whether for its
own account (other than in connection with a registration statement on Form S-4
or S-8 (or any successor or substantially similar forms), or a registration
statement filed in connection with an exchange offer or offering of securities
solely to the Company's existing shareholders), or for the account of a holder
of securities of the Company, then the Company shall in each case give prompt
written notice of such proposed filing to all Holders of Registrable Securities
at least 15 days before the anticipated filing date of any such registration
statement by the Company, and such notice shall offer to all Holders the
opportunity to have any or all of the Registrable Securities held by such
Holders included in such registration statement. Each Holder of Registrable
Securities desiring to have its Registrable Securities registered under this
Section 2.2 shall so advise the Company in writing within 10 days after date of
receipt of such notice (which request shall set forth the amount of Registrable
Securities for which registration is requested), and the Company shall include
in such registration statement all such Registrable Securities so requested to
be included therein subject to the limitations set forth in Section 6 hereof.
Under no circumstances shall the rights and obligations set forth in this
Section 2.2 apply to any registration statement filed by the Company after six
months following the termination of the Private Placement.
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b. Nothing in this Section 2.2 shall create any liability on the
part of the Company or any other person to the Holders if the Company or any
other person should, for any reason, decide not to file a registration statement
proposed to be filed pursuant to Section 2.2 or to withdraw such registration
statement subsequent to its filing, regardless of any action whatsoever that a
Holder may have taken, whether as a result of the issuance by the Company of any
notice under Section 2.2 or otherwise.
2.3 Limitations on Obligations to Register.
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a. Subject to the provisions of this Section 2.3, the Company
shall be entitled to postpone or suspend the filing, effectiveness,
supplementing or amending of any registration statement otherwise required to be
prepared and filed pursuant to this Section 2, if the Company has determined, in
good faith and in the exercise of reasonable judgment, that such action would
materially delay or interfere with any material financing, acquisition,
corporate reorganization, or other transaction involving the Company then
pending or contemplated. Holder agrees to promptly execute and deliver a
confidentiality agreement in form and substance reasonably acceptable to the
Company in connection with any disclosures the Company is required to make under
this paragraph.
b. If, after a registration statement becomes effective, the
Company advises the Holders that the Company considers it appropriate for the
registration statement to be amended, the Holders shall suspend any further
sales of their registered shares until the Company advises them that the
registration statement has been properly amended. The notice by the Company
will include the Company's estimate of the length of the suspension or
postponement. Upon receipt of such notice, each Holder agrees to cease such
Holder's disposition of Registrable Securities pursuant to such registration
statement during such suspension period. The Company will give prompt notice to
the Holders of the expiration or early termination of any suspension or
postponement pursuant to this Section 2.3.
2.4 Obligations of the Company. Whenever required under this Agreement
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to effect the registration of any Registrable Securities (and except as
specifically provided otherwise elsewhere in this Agreement), the Company will
use commercially reasonable efforts to do the following:
a. Prepare and file with the SEC a registration statement with
respect to the Registrable Securities and use commercially reasonable efforts to
cause such registration statement to become effective, and, with respect to the
Shelf Registration Statement, keep such registration effective as set forth in
Section 2.1.
b. Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
c. Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
d. Use commercially reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
"blue sky" laws of such jurisdictions as the Holders shall reasonably request;
provided, however, that the Company shall
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not be required to register and qualify such securities in more than 10 states
and shall not be required to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
e. In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
f. Notify each Holder of Registrable Securities covered by 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
that causes the prospectus included in such registration statement to contain an
untrue statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not misleading
in the light of the circumstances then existing, such obligation to continue
until the earlier of (i) the sale of all Registrable Securities registered
pursuant to the registration statement of which such prospectus forms a part or
(ii) withdrawal of such registration statement.
g. Promptly notify the Holders of Registrable Securities covered
by such registration statement (i) when the registration statement has become
effective; (ii) when any post-effective amendment to the registration statement
becomes effective; and (iii) of any request by the SEC for any amendment or
supplement to the registration statement or prospectus or for additional
information.
h. Notify each Holder of Registrable Securities if at any time the
SEC should institute or threaten to institute any proceedings for the purpose of
issuing, or should issue, a stop order suspending the effectiveness of the
registration statement. Upon the occurrence of any of the events mentioned in
the preceding sentence, the Company will use its best efforts to prevent the
issuance of any such stop order or to obtain the withdrawal thereof as soon as
possible. The Company will advise each Holder of Registrable Securities
promptly of any order or communication of any public board or body addressed to
the Company suspending or threatening to suspend the qualification of any
Registrable Securities for sale in any jurisdiction.
i. As soon as practicable after the effective date of the
registration statement, and in any event within 16 months thereafter, have "made
generally available to its security holders" (within the meaning of Rule 158
under the Securities Act) an earning statement (which need not be audited)
covering a period of at least 12 months beginning after the effective date of
the registration statement and otherwise complying with Section 11 (a) of the
Securities Act.
j. Use commercially reasonable efforts to cause the transfer agent
to remove restrictive legends on certificates representing the Registrable
Securities, as appropriate.
k. Use commercially reasonable efforts to have the Registrable
Securities listed on the same quotation system or market as the Common Stock.
2.5 Termination of Registration Rights. No Holder shall be entitled to
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exercise any right provided for in this Agreement (except Section 7 hereof) (i)
during such times as Rule 144 or another similar exemption under the Securities
Act is available for the sale of all of such Holders shares during a three month
period without registration and (ii) if such Holder holds less than one percent
of the Company's outstanding Common Stock on a fully diluted basis
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(assuming the exercise of all options and warrants and conversion of all
convertible securities into Common Stock).
2.6 Registration Rights of Company. The Company shall be entitled to
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include in any registration statement referred to in this Section 2 shares of
Common Stock to be sold by the Company for its own account or other existing
shareholders for their own account.
2.7 Delay of Registration. No Holder shall have any right to obtain or
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seek an injunction restraining or otherwise delaying any registration under
Section 2 as the result of any controversy that might arise with respect to the
interpretation or implementation of the provisions of this Agreement.
3. FURNISH INFORMATION. A condition precedent to the obligations of the
Company to take any action pursuant to this Agreement with respect to the
Registrable Securities of any selling Holder is that such Holder furnishes to
the Company such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as is required
to effect the registration of such Holder's Registrable Securities. Any such
information included in the draft of the registration statement shall be
provided to the Company within any reasonable time period requested by the
Company.
4. LOCK-UP PERIOD. Each Holder agrees that it will not sell or otherwise
transfer or dispose of any Common Stock registered on the Shelf Registration
Statement except in accordance with the following schedule: no more than 50% of
the shares during the 120 day period following termination of Private Placement
and an additional 50% of the shares on or after the 180th day following
termination of the Private Placement.
5. EXPENSES OF REGISTRATION. The Company will pay all expenses incurred in
connection with registrations, filings or qualifications pursuant to this
Agreement, including, but not limited to, all registration, filing and
qualification fees, printers' and accounting fees, and fees and disbursements of
counsel for the Company, except that the Company will not pay (a) underwriting
discounts and commissions relating to Registrable Securities (which the holders
of the securities so registered shall bear pro rata on the basis of the number
of shares so registered), and (b) fees and expenses of counsel to the selling
Holders.
6. UNDERWRITING REQUIREMENTS. In connection with any offering conducted in
accordance with Section 2.2 involving an underwriting of shares being issued by
the Company, the Company shall not be required to include any Holder's
securities in such underwriting unless such Holder accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it, and then only in such quantity as will not, in the opinion of the
underwriters, exceed the largest number of securities requested to be included
in such offering which can be sold without having an adverse effect on such
offering by the Company; provided, however, that no Investor participating in
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such underwriting shall be required to make any representations, warranties or
indemnities except as they relate to such Investor's ownership of shares and
authority to enter into the underwriting agreement and to such Investor's
intended method of distribution, and the liability of such Investor shall be
limited to an amount equal to the net proceeds from the offering received by
such Investor. If the total number of securities proposed to be sold in the
offering, including shares proposed to be issued by the Company and Registrable
Securities requested by shareholders to be included in such offering, exceeds
the largest number of securities that the underwriters reasonably believe can be
sold without having
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an adverse effect on such offering, then the Company shall be required to
include in the offering only that number of such securities, which may or may
not include Registrable Securities, which the underwriters believe will not have
an adverse effect on such offering. After the number of securities to be sold by
the Company, any securities of the Holders so included shall be allocated as
follows: (i) first, among the Holders of Registrable Securities that have
elected to participate in such offering, pro rata according to the number of
Registrable Securities held by each such Holder (or in such other proportions as
shall mutually be agreed to by such Holders), and (ii) thereafter, to the extent
additional securities may be included in such offering, to other selling
shareholders, pro rata according to the total number of securities entitled to
be included therein owned by each such other selling shareholder or in such
other proportions as shall mutually be agreed to by such other selling
shareholders.
7. INDEMNIFICATION. In the event any Registrable Securities are included in
a Registration Statement under this Agreement:
7.1 Indemnification by the Company. To the extent permitted by law,
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the Company will indemnify and hold harmless each Holder and each person, if
any, who controls such Holder within the meaning of the Securities Act and the
Exchange Act and their respective directors, officers, partners, employees and
affiliates (each, an "Indemnified Person"), against any losses, claims, damages,
or liabilities, joint or several, to which they may become subject insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any final prospectus contained therein or any amendments or supplements thereto
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and the Company will pay to each Indemnified Person any reasonable
legal or other expenses incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
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that the indemnity agreement contained in this Section 7 shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the consent of the Company, nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission which
occurs in reliance upon and in conformity with written information furnished by
a Holder expressly for use in connection with such registration or is caused by
any failure by the Holder to deliver a prospectus or preliminary prospectus (or
amendment or supplement thereto) as and when required under the Securities Act
after such prospectus has been timely furnished by the Company.
7.2 Indemnification by the Holder. To the extent permitted by law,
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each Holder will indemnify and hold harmless the Company, each of its directors,
each of its officers who has signed the registration statement, and each person,
if any, who controls the Company within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages or liabilities (joint or
several) to which any of the foregoing persons may become subject, insofar as
such losses, claims, damages or liabilities (or actions in respect thereto)
arise out of or are based upon (x) any untrue statement or alleged untrue
statement contained in, or any omission or alleged omission from, information
furnished in writing to the Company by the Holder specifically and expressly for
use in any such registration statement or prospectus or (y) any
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failure by the Holder to deliver a prospectus or preliminary prospectus (or
amendment or supplement thereto) as and when required under the Securities Act
after such prospectus has been timely furnished by the Company. Such Holder
will pay any reasonable legal or other expenses incurred by the Company, its
directors, officers, shareholders and affiliates pursuant to this Section 7.2 in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement contained
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in this Section 7.2 shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder.
7.3 Notice of Claim. Promptly after receipt by an indemnified party
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under this Section 7 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 7, deliver to
the indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the indemnifying parties; provided, however, that an indemnified
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party (together with all other indemnified parties that may be represented
without conflict by one counsel) shall have the right to retain one separate
counsel, with the reasonable fees and expenses to be paid by the indemnifying
party, if representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate (in the opinion of counsel to the
indemnifying party) due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party of
any liability to the indemnified party under this Section 7, but the omission so
to deliver written notice to the indemnifying party will not relieve it of any
liability that it may have to any indemnified party otherwise than under this
Section 7.
7.4 Survival of Indemnification Provision. The obligations of the
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Company and the Holders under this Section 7 shall survive the completion of any
offering of Registrable Securities under a registration statement pursuant to
this Agreement, and otherwise.
8. REPORTS UNDER THE EXCHANGE ACT. With a view to making available to the
Holders the benefits of Rule 144 under the Securities Act and any other rule or
regulation of the SEC that permits the Holder to sell the Registrable Securities
to the public without registration, the Company agrees to use commercially
reasonable efforts to:
8.1 Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act;
8.2 File with the SEC, in a timely manner, all reports and other
documents required of the Company under the Securities Act and Exchange Act; and
8.3 Furnish to any Holder, so long as the Holder owns any Registrable
Securities, promptly upon request (i) a written statement by the Company, if
true, that it has complied with the reporting requirements of SEC Rule 144, the
Act and the 1934 Act, (ii) a copy of the most recent annual or quarterly report
of the Company and such other reports and documents so filed
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by the Company, and (iii) such other information as may be reasonably requested
in availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration.
9. ASSIGNMENT AND REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Agreement may be assigned by a
Holder to a permitted transferee or assignee of Registrable Securities which (a)
is a subsidiary, parent, general partner, limited partner, retired partner,
affiliate, beneficial owner, member or retired member of a Holder, or (b) is a
Holder's family member or trust for the benefit of an individual Holder;
provided, however, (i) the transferor shall, within 10 days after such transfer,
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furnish to the Company written notice of the name and address of such transferee
or assignee and the securities with respect to which such registration rights
are being assigned and (ii) such transferee shall agree to be subject to all
restrictions set forth in this Agreement.
10. "MARKET STAND-OFF" AGREEMENT.
10.1 Each Holder hereby agrees that, during the period of duration (up
to, but not exceeding, 180 days) specified by the Company and an underwriter of
Common Stock or other securities of the Company, following the effective date of
a registration statement of the Company filed under the Securities Act, it shall
not, to the extent requested by the Company and such underwriter, directly or
indirectly sell, offer to sell, contract to sell (including, without limitation,
any short sale), grant any option to purchase or otherwise transfer or dispose
of (other than to donees who agree to be similarly bound) any securities of the
Company held by it at any time during such period except Common Stock included
in such registration; provided, however, that:
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a. Such agreement shall be applicable only during the two year
period following the date of the final prospectus distributed pursuant to the
first registration statement of the Company after the date of this Agreement
which covers Common Stock (or other securities) to be sold on its behalf to the
public in an underwritten offering; and
b. All officers and directors of the Company, all one percent
security holders, and all other persons with registration rights (whether or not
pursuant to this Agreement) enter into similar agreement.
10.2 In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Registrable Securities of each
Holder (and the shares or securities of every other person subject to the
foregoing restriction) until the end of such period, and each Holder agrees
that, if so requested, such Holder will execute an agreement in the form
provided by the underwriter containing terms which are essentially consistent
with the provisions of this Section 10.
10.3 Notwithstanding the foregoing, the obligations described in this
Section 10 shall not apply to a registration relating solely to employee benefit
plans on Form S-8 or similar forms which may be promulgated in the future, or a
resignation relating solely to an SEC Rule 145 transaction on Form S-4 or
similar forms which may be promulgated in the future.
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11. MISCELLANEOUS.
11.1 Governing Law. This Agreement shall be governed by and construed
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in accordance with the laws of the State of Georgia without giving effect to
conflict of laws.
11.2 Consent to Jurisdiction; Exclusive Venue. The Company and the
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Holder hereby irrevocably consent to the jurisdiction of the United States
District Court for the Northern District of Georgia and all Georgia state courts
sitting in Xxxxxx County, Georgia, for the purpose of any litigation to which
the Company or the Holder may be a party and that concerns this Agreement. It
is further agreed that venue for any action shall lie exclusively with courts
sitting in Xxxxxx County, Georgia, unless the Company agrees to the contrary in
writing.
11.3 Successors and Assigns. Except as otherwise provided in this
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Agreement, the provisions of this Agreement will inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties to this Agreement.
11.4 Waiver of Jury Trial. Each party hereto hereby waives its rights
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to a jury trial of any claim or cause of action based upon or arising out of
this Agreement. The scope of this waiver is intended to be all-encompassing of
any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including, without limitation, contract
claims, tort claims, breach of duty claims, and all other common law and
statutory claims. Each party hereto hereby further warrants and represents that
such party has reviewed this waiver with its legal counsel, and that such party
knowingly and voluntarily waives its jury trial rights following consultation
with legal counsel. This waiver is irrevocable, meaning that it may not be
modified either orally or in writing, and this waiver shall apply to any
subsequent amendments, supplements or modifications to (or assignments of) this
agreement. In the event of litigation, this agreement may be filed as a written
consent to a trial (without a jury) by the court.
11.5 Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
11.6 Captions and Headings. The captions and headings used in this
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Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
11.7 Notices. Unless otherwise provided, any notice or other
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communication required or permitted to be given or effected under this Agreement
shall be in writing and shall be deemed effective upon personal or facsimile
delivery to the party to be notified or one business day after deposit with an
internationally recognized courier service, delivery fees prepaid, and addressed
to the party to be notified at the following respective addresses, or at such
other addresses as may be designated by written notice; provided, however, that
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any notice of change of address shall be deemed effective only upon receipt.
If to the Company: xxxxx.xxx, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Box
9
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx Xxxxx & Scarborough, L.L.P.
First Union Plaza
Suite 1400
000 Xxxxxxxxx Xxxxxx, X.X.
X.X. Xxx 00000
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Holders: Notice shall be sent to the person and address
indicated on the signature page hereof.
11.8 Amendments and Waivers. The provisions of this Agreement,
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including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained written consent of the Holders
of at least a majority of the outstanding Registrable Securities affected by
such amendment, modification, supplement, waiver or departure and upon obtaining
such consent will bond all Holders, including those who did not consent.
Notwithstanding the foregoing, any Holder may waive its own rights under this
Agreement.
11.9 Severability. If one or more provisions of this Agreement are
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held to be unenforceable under applicable law, such provisions shall be excluded
from this Agreement and the balance of this Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.
11.10 Entire Agreement. This Agreement contains the entire
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understanding of the parties hereto with respect to the subject matter contained
herein, and supersedes and cancels all prior agreements, negotiations,
correspondence, undertakings and communications of the parties, oral or written,
respecting such subject matter. There are no restrictions, promises,
representations, warranties, agreements or undertakings of any party hereto with
respect to the matters contemplated hereby, other than those set forth herein or
made hereunder.
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IN WITNESS WHEREOF, the parties, each by its duly authorized signatory,
have executed this Agreement as of the date first above written.
xxxxx.xxx, Inc. INVESTORS:
By: _____________________ [____________________]
Name: Xxxxx X. Box [____________________]
Title: Chief Executive Officer Address
By:________________________________
Name:
Title:
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Schedule to Exhibit 99.2
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Each investor purchasing "capital units" consisting of Series A Preferred and
Original Warrants in the first and second private offerings of such securities
entered into a registration rights agreement in the form of this Exhibit 99.2.
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