Exhibit 10.7
FORM OF REGISTRATIONS RIGHTS AGREEMENT BETWEEN SMARTVIDEO TECHNOLOGIES, INC.
AND EACH OF ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇ GOLD, J. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as
of _____________ 2004 between SmartVideo Technologies, Inc., a Delaware
corporation (the "Company"), the parties whose names appear on the signature
page hereof (individually, a "Holder" and collectively, the "Holders").
This Agreement is made in connection with the Holders acquisition of the
Company's shares of common stock (the "Common Stock").
The parties hereby agree as follows:
1. Certain Definitions.
As used in this Agreement, the following terms shall have the following
respective meanings:
(a) "Business Day" means any day, other than a Saturday, Sunday or legal
holiday, on which banks in the State of New York are open for
business.
(b) "Commission" means the Securities and Exchange Commission.
(c) "Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor statute thereto, and the rules and regulations of
the Commission promulgated thereunder, all as the same shall be in
effect at the time.
(d) "Holders" means the Holders referred to in the Preamble.
(e) "Person" shall mean an individual, partnership, corporation,
association, trust, joint venture, unincorporated organization and
any government, governmental department or agency or political
subdivision thereof.
(f) "Registrable Securities" means (i) the Common Stock issued to the
Holders; and (ii) any shares of capital stock of the Company issued
or issuable with respect to the securities referred to in clause (i)
by way of a stock split or stock dividend or in connection with a
combination of shares, recapitalization, merger, consolidation or
other reorganization. For purposes of this Agreement, a Person will
be deemed to be a holder of Registrable Securities upon conversion or
exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of
such right, whether or not such acquisition has actually been
effected. Such securities will cease to be Registrable Securities
when sold pursuant to Rule 144 under the Securities Act or any
offering registered under the Securities Act.
(g) "Registration Expenses" means all expenses incident to the Company's
performance of or compliance with this Agreement, including, without
limitation, all registration, filing, listing and National
Association of Securities Dealers, Inc. ("NASD") fees, all fees and
expenses of complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, all messenger and
delivery expenses, any transfer taxes, the fees and expenses of the
Company's legal counsel and independent public accountants, including
the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, fees and
disbursements of one counsel for all of the Holders, and any fees and
disbursements of underwriters customarily paid by insurers or sellers
of securities; provided, however, that Registration Expenses shall
not include underwriting discounts and commissions.
(h) "Securities Act" means the Securities Act of 1933, as amended, or any
successor statute thereto, and the rules and regulations of the
Commission promulgated thereunder, all as the same shall be in effect
at the time.
2. Piggyback Registration Rights.
(a) Incidental Registration. If the Company for itself or any of its
security holders shall at any time or times after the date hereof
determine to register under the Securities Act any shares of its
capital stock or other securities other than: (i) the registration of
an offer, sale or other disposition of securities solely to employees
of, or other persons providing services to, the Company, or any
subsidiary pursuant to an employee or similar benefit plan; or (ii)
relating to a merger, acquisition or other transaction of the type
described in Rule 145 under the Securities Act or a comparable or
successor rule, registered on Form S-4 or similar or successor forms,
on each such occasion the Company will notify each Holder of such
determination at least thirty (30) days prior to the filing of such
registration statement, and upon the request of any Holder given in
writing within twenty (20) days after the receipt of such notice, the
Company will use its best efforts as soon as practicable thereafter
to cause any of the Registrable Securities specified by any such
Holder to be included in such registration statement to the extent
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such registration is permissible under the Securities Act and subject
to the conditions of the Securities Act (an "Incidental
Registration").
(b) Number of Registrations. The Company shall not be obligated to effect
more than one Incidental Registration pursuant to this Agreement,
except as provided in subdivision (f) hereof. Subject to subdivision
(f) hereof, the Company may include in such Incidental Registration
other securities of the Company for sale, for the Company's account or
for the account of any other person, if and to the extent that the
managing underwriter determines that the inclusion of such additional
shares will not interfere with the orderly sale of the underwritten
securities at a price range acceptable to the requesting Holders. Upon
receipt of a written request pursuant to this Section 2(a), the
Company shall promptly give written notice of such request to all
Holders, and all Holders shall be afforded the opportunity to
participate in such request. The Company will be obligated to include
in the Incidental Registration such number of Registrable Securities
of any Holder joining in such request as are specified in a written
request by the Holder received by the Company within 20 days after
receipt of such written notice from the Company.
(c) Limitations on Piggyback Registration Rights. No Holder may exercise
his registration rights under Section 2(a) hereof if such Holder could
sell all of his Registrable Securities requested to be included in the
Incidental Registration in a three (3) month period without
registration under the Securities Act pursuant to Rule 144 under the
Securities Act.
(d) Expenses. The Company shall pay all Registration Expenses incurred in
connection with any Incidental Registration.
(e) Effective Registration Statement. An Incidental Registration requested
pursuant to Section 2(a) shall not be deemed to have been effected
unless it has been declared effective by the Commission.
Notwithstanding the foregoing, a registration statement will not be
deemed to have been effected if: (i) after it has become effective
with the Commission, such registration is interfered with by any stop
order, injunction, or other order or requirement of the Commission or
other governmental agency or any court proceeding for any reason other
than a misrepresentation or omission by any Holder; or (ii) the
conditions to closing specified in the purchase agreement or
underwriting agreement entered into in connection with such
registration are not satisfied, other than solely by reason of some
act or omission by any Holder.
(f) Priority in Incidental Registration. If an Incidental Registration is
an underwritten registration initiated by the Company, and the
managing underwriters shall give written advice to the Company that,
in their opinion, market conditions dictate that no more than a
specified maximum number of securities (the "Underwriter's Maximum
Number") could successfully be included in such Incidental
Registration, then the Company will include in such registration:
(i) first, that number of securities which the Company proposes to
offer and sell for its own account in such registration and which
does not exceed the Underwriter's Maximum Number; and
(ii)second, that number of Registrable Securities which shall have
been requested by the Holders thereof having registration rights
hereunder which does not exceed the difference between the
Underwriter's Maximum Number and that number of securities which
the Company is entitled to include therein pursuant to clause
(i) above.
If less than all of the Registrable Securities requested to be
included in any such registration by the Holders can be so included
due to these priority requirements, then each requesting Holder's
request shall be granted on an pro rata basis with the other
requesting Holders. In addition, all Holders whose Registrable
Securities were not included in the Incidental Registration as
requested as a result of this Section 2(f), shall have the right to
participate in one (1) additional Incidental Registration in
accordance with the terms of this Agreement.
(g) Notwithstanding anything to the contrary contained in this Section 2,
the Company shall have the right to delay any registration of
Registrable Securities requested pursuant to this Section 2 for up to
one hundred twenty (120) days if such registration would, in the
judgment of the Company's Board of Directors, substantially interfere
with any material transaction being considered at the time of receipt
of the request from the Holders.
3. Registration Procedures.
(a) If and whenever the Company is required to use its best efforts to
effect the registration of any Registrable Securities under the
Securities Act as provided in Section 2, the Company, as expeditiously
as possible and subject to the terms and conditions of Section 2,
will:
(i) prepare and file with the Commission the requisite
registration statement to effect such registration and use its
best efforts to cause such registration to become and remain
effective;
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(ii) permit any Holder which, in the reasonable judgment of the
Holder, might be deemed to be an underwriter or a controlling
person of the Company, to participate in the preparation of such
registration statement and to require the insertion therein of
material furnished to the Company in writing, which in the
reasonable judgment of such Holder and its counsel should be
included;
(iii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such
registration statement effective and to comply with the
provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement until
the earlier of such time as all of such securities have been
disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof set forth in such
registration statement or the expiration of 180 days after such
registration statement becomes effective;
(iv) furnish to the Holders such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of
copies of the prospectus contained in such registration statement
(including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under
the Securities Act, in conformity with the requirements of the
Securities Act, and such other documents, as the purchaser or any
Holder of Registrable Securities to be sold under such
registration statement may reasonably request;
(v) use its best efforts to register or qualify all Registrable
Securities covered by such registration statement under such
other United States state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities to be
sold under registration statement shall reasonably request, to
keep such registration or qualification in effect for so long as
such registration remains in effect, and take any other action
which may be reasonably necessary or advisable to enable the
Holder of Registrable Securities to be sold under such
registration statement to consummate the disposition in such
jurisdictions of the securities owned by such Holder, except that
the Company shall not for any such purpose be required to
(a) qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements
of this subdivision (v) be obligated to be so qualified, or
(b) subject itself to taxation in any such jurisdiction, or (c)
consent to general service of process in any such
jurisdiction;
(vi) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved
by such other United States state governmental agencies or
authorities as may be necessary to enable the Holder of
Registrable Securities to be sold under such registration
statement to consummate the intended disposition of such
Registrable Securities;
(vii) in the event of the issuance of any stop order suspending the
effectiveness of the registration statement, or of any order
suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Securities
included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to
obtain the withdrawal of such order; and
(viii)immediately notify the Holders of Registrable Securities
included in such registration statement at any time when a
prospectus relating thereto is required to be delivered under
the Securities Act, of the happening of any event as a result
of which the prospectus included in such registration statement,
as then in effect, includes an untrue statement of material fact
or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made, and at the
request of the Holders promptly prepare and furnish to the
Holders a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as
thereafter delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they
were made.
(b) The Company may require each Holder of Registrable Securities to be
sold under such registration statement, at the Company's expense, to
furnish the Company with such information and undertakings as it may
reasonably request regarding such Holder and the distribution of such
securities as the Company may from time to time reasonably request in
writing.
(c) Each Holder, by execution of this Agreement, agrees (A) that upon
receipt of any notice of the Company of the happening of any event of
the kind described in subdivision (a)(viii) of this Section 3, such
Holder will forthwith discontinue its disposition of Registrable
Securities pursuant to the registration statement relating to such
Registrable Securities until the receipt by such Holder of the copies
of the supplemented or amended prospectus contemplated by subdivision
(a)(viii) of this Section 3 and, if so directed by the Company, will
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deliver to the Company all copies, other than permanent file copies,
then in possession of the Holders of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice
and (B) that the Holder will immediately notify the Company, at any
time when a prospectus relating to the registration of such
Registrable Securities is required to be delivered under the
Securities Act, of the happening of any event as a result of which
information previously furnished by such Holder to the Company for
inclusion in such prospectus contains an untrue statement of a
material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were
made. In the event the Company or any such Holder shall give any such
notice, the period referred to in subdivision (a)(viii) of this
Section 3 shall be extended by a number of days equal to the number of
days during the period from and including the giving of notice
pursuant to subdivision (a)(viii) of this Section 3 to and including
the date when such Holder shall have received the copies of the
supplemented or amended prospectus contemplated by subdivision
(a)(viii) of this Section 3.
4. Underwritten Offerings.
(a) Underwritten Offering. In connection with any underwritten offering
pursuant to a registration requested under Section 2(a), the Company
will enter into an underwriting agreement with the underwriters for
such offering. Each Holder shall be a party to such underwriting
agreement. Each Holder whose Registrable Securities are included in
such registration shall be required to make such representations or
warranties to or agreements with the Company or the underwriters as
are reasonable requested by the Company and such underwriters.
(b) Selection of Underwriters. If an Incidental Registration pursuant to
Section 2(a) involves an underwritten offering, then the Company shall
have sole discretion to select the underwriter.
(c) Holdback Agreements. Each Holder agrees, if so reasonably required by
the managing underwriter in a registration pursuant to Section 2, not
to effect any public sale or distribution of Registrable Securities or
sales of such Registrable Securities pursuant to Rule 144 or Rule 144A
under the Securities Act, during the seven (7) days prior to and the
180 days after any firm commitment underwritten registration pursuant
to Section 2 has become effective (except as part of such underwritten
registration) or, if the managing underwriter advises the Company
that, in its opinion, no such public sale or distribution should be
effected for a period of not more than 180 days after such
underwritten registration in order to complete the sale and
distribution of securities included in such registration and the
Company gives notice to such effect to such Holders of such advice,
each Holder shall not effect any public sale or distribution of
Registrable Securities or sales of such Registrable Securities
pursuant to Rule 144 or Rule 144A under the Securities Act during such
period after such underwritten registration, except as part of such
underwritten registration, whether or not such Holder participates in
such registration.
5. Preparation, Reasonable Investigation. In connection with the preparation
and filing of each registration statement under the Securities Act, the
Company will give the Holders of Registrable Securities to be sold under
such registration statement, the underwriters, if any, and their
respective counsel and accountants, drafts and final copies of such
registration statement, each prospectus included therein or filed with the
Commission and each amendment thereof or supplement thereto, at least
five (5) Business Days prior to the filing thereof with the Commission,
and will give each of them such access to its books and records and such
opportunities to discuss the business of the Company with its officers
and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of such
Holders and such underwriters' respective counsel, to conduct a
reasonable investigation within the meaning of the Securities Act.
6. Indemnification and Contribution.
(a) Indemnification by the Company. In the event of any registration under
the Securities Act pursuant to Section 2 of any Registrable Securities
covered by such registration, the Company will, and hereby does,
indemnify and hold harmless each Holder of Registrable Securities to
be sold under such registration statement, each other person who
participates as an underwriter in the offering or sale of such
securities (if so required by such underwriter as a condition to
including the Registrable Securities of the Holders in such
registration) and each other person, if any, who controls any such
Holder or any such underwriter within the meaning of the Securities
Act (collectively, the "Indemnified Parties"), against any losses,
claims, damages or liabilities, joint or several, to which the Holders
or underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such securities
were registered under the Securities Act, any preliminary prospectus,
final prospectus or summary prospectus contained therein or any
document incorporated therein by reference, or any amendment or
supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or arise out of any
violation by the Company of any rule or regulation promulgated under
the Securities Act or state securities law applicable to the Company
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and relating to action or inaction required of the Company in
connection with any such registration, and the Company will reimburse
the Indemnified Parties for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided, however,
that the Company shall not be liable to any Indemnified Party in any
such case to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of
or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any
such preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Indemnified
Party.
(b) Indemnification by the Holders. As a condition to including any
Registrable Securities of any person or entity in any registration
statement filed pursuant to Section 2(a) hereof, the Holders whose
Registrable Securities are included in such registration statement
will, and do hereby, indemnify and hold harmless (in the same manner
and to the same extent as set forth in subdivision (a) of this Section
6) the Company, each director of the Company, each officer of the
Company and each other person, if any, who controls the Company within
the meaning of the Securities Act, with respect to any statement or
alleged statement in or omission or alleged omission from such
registration statement, any preliminary prospectus, final prospectus
or summary prospectus contained therein, or any amendment or
supplement thereto, if, and only if, such statement or alleged
statement or omission or alleged omission was made in reliance upon
and in conformity with information furnished in writing to the Company
directly by such person or entity specifically for use therein;
provided, however, that the obligation of any Holder hereunder shall
be limited to an amount equal to the proceeds received by such Holder
upon the sale of Registrable Securities sold in the offering covered
by such registration.
(c) Notices of Claims, etc. Promptly after receipt by an Indemnified Party
of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding subdivisions of this Section 6,
such Indemnified Party will, if a claim in respect thereof is to be
made against a party required to provide indemnification (an
"Indemnifying Party"), give written notice to the latter of the
commencement of such action, provided, however, that the failure of
any Indemnified Party to give notice as provided herein shall not
relieve the Indemnifying Party of its obligation under the preceding
subdivisions of this Section 6, except to the extent that the
Indemnifying Party is actually prejudiced by such failure to give
notice. In case any such action is brought against an Indemnified
Party, unless in such Indemnified Party's reasonable judgment a
conflict of interest between such Indemnified and Indemnifying Parties
may exist in respect of such claim, the Indemnifying Party shall be
entitled to participate in and to assume the defense thereof, jointly
with any other Indemnifying Party similarly notified to the extent
that it may wish, with counsel reasonably satisfactory to such
Indemnified Party, and after notice from the Indemnifying Party to
such Indemnified Party of its election so to assume the defense
thereof, the Indemnifying Party shall not be liable to such
Indemnified Party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof other
than reasonable costs of investigation. No Indemnifying Party shall
consent to entry of any judgment or enter into any settlement without
the consent of the Indemnified Party which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
such Indemnified Party of a release from all liability in respect to
such claim or litigation.
(d) Indemnification Payment. The indemnification required by this Section
6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received
or expense, loss, damage or liability is incurred.
(e) Survival of Obligations. The obligations of the Company and of the
Holders under this Section 6 shall survive the completion of any
offering of Registrable Securities under this Agreement.
(f) Contribution. If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an Indemnified Party,
then each Indemnifying Party shall contribute to the amount paid or
payable to such Indemnified Party as a result of the losses, claims,
damages or liabilities referred to in this Section 6 an amount or
additional amount, as the case may be, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party or
parties on the one hand and the Indemnified Party on the other in
connection with the statements or omissions which resulted in such
losses, claims, demands or liabilities as well as any other relevant
equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the
Indemnifying Party or parties on the one hand or the Indemnified Party
on the other and the parties' relative, intent, knowledge, access to
information and opportunity to correct or prevent such untrue
statement or omission. The amount paid to an Indemnified Party as a
result of the losses, claims, damages or liabilities referred to in
the first sentence of this Section 6(f) shall be deemed to include any
legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any action or claim
which is the subject of this Section 6. No person guilty of fraudulent
misrepresentation within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who
was not guilty of such fraudulent misrepresentation.
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7. Rule 144. The Company shall file, on a timely basis, any reports
required to be filed by it under the Securities Act and the Exchange
Act so as to enable the Holders holding any Registrable Securities to
sell such Registrable Securities without registration under the
Securities Act within the limitations of the exemptions provided by
(i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule hereafter adopted by the
Commission. Upon the request of any such Holder, the Company shall
deliver to such Holder a written statement as to whether it has
complied with such requirements.
8. Miscellaneous.
(a) Specific Performance. The parties hereto acknowledge that there may be
no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by
any such failure, and accordingly agree that each party, in addition
to any other remedy to which it may be entitled at law or in equity,
shall be entitled to compel specific performance of the obligations of
any other party under this Agreement in accordance with the terms and
conditions of this Agreement.
(b) Notices. All demands, requests, notices and other communications
required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been duly given if delivered
personally or sent by United States first class mail, postage prepaid,
or by reputable overnight courier service, and to the parties hereto
at the following address or at such other address as any party hereto
shall hereafter specify by notice to the other party hereto:
(i) if to the Company, addressed to: SmartVideo Technologies, Inc.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇.
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.A.
(ii) if to the Holder, to their addresse set forth on Schedule 1
attached hereto
Except as otherwise provided herein, all such demands, requests,
notices and other communications shall be deemed to have been received
on the date of personal delivery thereof or on the third business day
after the mailing thereof.
(c) Severability. If any one or more of the provisions of this Agreement
should be ruled wholly or partially invalid or unenforceable by a
court or other governmental body of competent jurisdiction, then: (i)
the validity and enforceability of all provisions of this Agreement
not ruled to be invalid or unenforceable shall be unaffected; (ii)
the effect of the ruling shall be limited to the jurisdiction of the
court or other government body making the ruling; (iii) the
provision(s) held wholly or partly invalid or unenforceable shall be
deemed amended and the court or other government body is authorized
to reform the provision(s), to the minimum extent necessary to render
them valid and enforceable in conformity with the parties intent as
manifested herein; and (iv) if the ruling and/or controlling
principle of law or equity leading to the ruling is subsequently
overruled, modified, or amended by legislative, judicial, or
administrative action, then the provision(s) in question as originally
set forth in this Agreement shall be deemed valid and enforceable to
the maximum extent permitted by the new controlling principle of law
or equity.
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of Delaware, without regard to
conflicts of law principles thereof. Each of the parties to this
Agreement submits to the nonexclusive jurisdiction of the United
States District Court and the state courts sitting in ▇▇▇▇▇▇ County,
Georgia for purposes of all legal proceedings arising out of or
relating to this Agreement and the transactions contemplated hereby.
Each of the parties to this Agreement irrevocably waives, to the
fullest extent permitted by law, any objection which a party may now
or hereafter have to the laying of venue of any such proceeding
brought in any such court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
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(e) Headings. The descriptive headings of the several sections and
paragraphs of this Agreement are inserted for convenience only, and do
not constitute a part of this Agreement and shall not affect in any
way the meaning or interpretation of this Agreement.
(f) Entire Agreement; Amendments. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to
its subject matter. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter.
This Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively) only by a written
instrument duly executed by the Company and those Holders holding a
majority of Registrable Securities. Each Holder of any Registrable
Securities at the time or thereafter outstanding shall be bound by an
amendment or waiver authorized by this Section 9(e), whether or not
any such Registrable Securities shall have been marked to indicate
such consent.
(g) No Assignability. This Agreement and all of the provisions hereof
shall not be assigned by any Holder to any purchaser, transferee or
assignee of any Registrable Security.
(h) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SMARTVIDEO TECHNOLOGIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President and CEO
THE HOLDERS:
*
------------------------------
Holder Representatives' Signature
* Signed by ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇,
J. ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇
86
