EXHIBIT 4.2 FORM OF INVESTORS' RIGHTS AGREEMENT
INVESTORS' RIGHTS AGREEMENT
This Investors' Rights Agreement is made as of December 1, 1999, by and
among Xx0.xxx Inc. (the "Company"), a Colorado corporation having its principal
address at 000 Xxxxxxxxx Xxxxxx, 0(xx) Xxxxx, Xxx Xxxx, XX 00000, and those
persons named in Schedule A to this Agreement (collectively, the "Holders").
Certain capitalized terms used in this Agreement without definition shall have
the meanings given them in Section 14.
PREAMBLE
Each of the Holders has acquired shares of Common Stock Warrants to acquire
Common Stock pursuant to the Common Stock Unit Subscription Agreement (the
"Subscription Agreement"), dated as of December 1, 1999, between the Company and
the persons named in Section I thereto.
Pursuant to the Subscription Agreement, the Company and the Holders have
agreed to enter into an Investor's Rights Agreement.
NOW, THEREFORE, in consideration of the premises and mutual agreements set
forth herein, the Company and the Holders agree as follows:
1. RESTRICTIONS ON TRANSFERABILITY. None of the Restricted Securities may be
sold, assigned, transferred, pledged or otherwise disposed of, whether or not
for value, except in compliance with the terms and conditions of this Agreement.
At such time as the Restricted Securities cease to be Restricted Securities
under the terms of this Agreement, the provisions of this Agreement shall no
longer apply to the shares of the Common Stock that theretofore were Restricted
Securities
2. RESTRICTIVE LEGEND.
2.1. SHARES OF COMMON STOCK. Each certificate representing Restricted
Securities that are shares of Common Stock shall be stamped or otherwise
imprinted with a legend substantially in the following form (in addition to
any legend required under applicable state securities laws or otherwise):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR INVESTMENT
AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"). THESE SHARES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER THE SECURITIES ACT.
THE SALE, ASSIGNMENT, TRANSFER, PLEDGE AND OTHER DISPOSITION OF THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE INVESTOR'S RIGHTS
AGREEMENT (THE "INVESTOR'S RIGHTS AGREEMENT"), DATED AS OF DECEMBER 1, 1999,
AMONG CERTAIN SECURITYHOLDERS OF THE COMPANY. A COPY OF THE SECURITYHOLDERS
AGREEMENT IS ON FILE WITH THE CORPORATE SECRETARY AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE CORPORATION. A COPY THEREOF MAY BE OBTAINED AT NO COST UPON
WRITTEN REQUEST THEREFOR MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO
THE CORPORATE SECRETARY AT THE PRINCIPAL OFFICES OF THE COMPANY.
2.2. WARRANT CERTIFICATE. Each certificate representing Common Stock
Warrants that shall bear a legend substantially in the following form (in
addition to any legend required under applicable state securities laws or
otherwise):
THIS WARRANT AND ANY SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), NOR UNDER
ANY STATE SECURITIES LAW AND SUCH SECURITIES MAY NOT
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BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED, OR OTHERWISE TRANSFERRED UNTIL
(1) A REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER THE ACT
AND ANY APPLICABLE STATE SECURITIES LAW OR (2) THE COMPANY RECEIVES AN
OPINION OF COUNSEL TO THE COMPANY OR COUNSEL TO THE HOLDER OF SUCH
SECURITIES, WHICH COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO THE
COMPANY, THAT SUCH SECURITIES MAY BE PLEDGED, SOLD, ASSIGNED, HYPOTHECATED,
OR TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND
APPLICABLE STATE SECURITIES LAWS.
THE TRANSFER OF THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE
HEREOF ARE RESTRICTED AS DESCRIBED HEREIN.
THE SALE, ASSIGNMENT, TRANSFER, PLEDGE AND OTHER DISPOSITION OF THIS WARRANT
AND THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT ARE RESTRICTED BY
THE INVESTORS' RIGHTS AGREEMENT (THE "INVESTORS' RIGHTS AGREEMENT"), DATED
AS OF DECEMBER 1, 1999. A COPY OF THE INVESTORS' RIGHTS AGREEMENT IS ON FILE
WITH THE CORPORATE SECRETARY AT THE PRINCIPAL EXECUTIVE OFFICES OF THE
COMPANY. A COPY THEREOF MAY BE OBTAINED AT NO COST UPON WRITTEN REQUEST
THEREFOR MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE CORPORATE
SECRETARY AT THE PRINCIPAL OFFICES OF THE COMPANY.
2.3. STOP TRANSFER INSTRUCTIONS. The Holders consent to the Company's
making a notation on its records and giving instructions to any transfer
agent of the Restricted Securities in order to implement the restrictions on
transfer established in this Agreement.
3. NOTICE AND OTHER REQUIREMENTS OF TRANSFER. No Holder will sell, assign,
transfer, pledge or otherwise dispose of any Restricted Securities until the
first anniversary of the date of this Agreement, and thereafter a Holder may
sell, assign, transfer, pledge or otherwise dispose of any Restricted Securities
if and only if:
a. the intended sale, assignment, transfer, pledge or other
disposition is permitted by the other provisions of this Agreement; or
b. there is in effect a registration statement under the Securities
Act covering such proposed disposition and such disposition is made in
accordance with such registration statement; or
c. (i) such Holder has notified the Company of the proposed
disposition and has furnished the Company with a detailed statement of
the circumstances surrounding the proposed sale, pledge or other
disposition for value, including the name and address of the buyer and
identifying the Restricted Securities with respect to which such rights
are being assigned, and (ii) the buyer, as a condition to the
effectiveness of such disposition, has executed a counterpart of this
Agreement expressly assuming the obligations of a Holder under this
Agreement; and, if the Company requests, such Holder shall also furnish
the Company with an opinion of counsel, reasonably satisfactory to the
Company, that such disposition for value does not require registration of
such shares under the Securities Act:
4. PIGGYBACK REGISTRATION.
4.1. NOTICE TO HOLDERS REQUIRED. If at any time during the Term the
Company shall determine to register any shares of Common Stock for its own
account or the account of any of the Holders, other than (a) a transaction
relating solely to the sale of convertible debt instruments, (b) or a
registration on Form S-4 or S-8 or another form not available for
registering the Restricted Securities for sale to the public, or (c) any
registration comprised in whole or in substantial part of shares underlying
stock options granted by the Company or its predecessor, the Company will
give to the Holders notice as soon as practicable prior to filing the
registration statement and include in such registration all the
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Restricted Securities specified in one or more written requests which have
been made within 15 days after receipt of such written notice from the
Company by any of the Holders, except as set forth in Section 4.2
4.2. REGISTERED PUBLIC OFFERING INVOLVING AN UNDERWRITING. If the
registration is for a registered public offering involving an underwritten
offering, the Company shall so advise each Holder as a part of the written
notice given pursuant to Section 4.1. In such event, the right of each
Holder to registration pursuant to this Section shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Restricted Securities in the underwriting to the extent provided
herein. If any Holder proposes to distribute his securities through such
underwriting, such Holder shall (together with the Company and the other
Holders distributing their securities through such underwriting) enter into
an underwriting agreement in customary form with the underwriter or
underwriters selected for such underwriting by the Company. Notwithstanding
any other provision of this Section 4, if the managing underwriter
determines that marketing factors require a limitation of the number of
shares to be underwritten, the managing underwriter may limit the number of
Restricted Securities to be included in the underwriting or may limit the
number of Restricted Securities to be included in such registration. The
Company shall so advise each of the Holders, and the number of shares of
Restricted Securities and other securities that may be included in the
registration and underwriting shall be allocated among such Holder and other
holders of Common Stock that hold rights granted by the Company to cause
shares of Common Stock held by them to be included in such registration or
underwriting, in proportion, as nearly as practicable, to the respective
amounts of Restricted Securities held by each Holder and each other such
holder that are requested to be included in the registration or
underwriting. To facilitate the allocation of shares in accordance with the
above provisions, the Company or the underwriter may round the number of
shares allocated to any Holders to the nearest one hundred shares. If any of
the Holders disapproves of the terms of any such underwriting, he may elect
to withdraw therefrom by written notice to the Company. Any Restricted
Securities excluded or withdrawn from such underwriting shall be withdrawn
from such registration.
5. NONPUBLIC INFORMATION. Notwithstanding any other provision of this
Agreement, the Company's obligation to file a registration statement under
Section 4.1, or to cause such registration statement to become and remain
effective, shall be suspended for a period not to exceed 90 days (and for
periods not exceeding, in the aggregate, 180 days in any 12-month period) if
there exists at the time material non-public information relating to the Company
which, in the reasonable opinion of the Company, should not be disclosed.
6. EXPENSES OF REGISTRATION. The Company will bear all reasonable expenses
incurred in connection with registrations pursuant to Section 4, including
without limitation all registration, filing and qualification fees, printing
expenses, fees and disbursements of counsel for the Company and independent
accounts for the Company and expenses of any special audits of the Company's
financial statements incidental to or required by such registration, fees of the
National Association of Securities Dealers, Inc., transfer taxes, fees of
transfer agents and registrars' fees, but the Company will not pay underwriters'
fees, discounts or commissions relating to the Restricted Securities or any fees
or expenses legal counsel for any or all of the Holders.
7. REGISTRATION PROCEDURES. In the case of each registration effected by the
Company pursuant to this Agreement, the Company will keep the Holders
participating therein advised in writing as to the initiation of each
registration and as to the completion thereof.
8. INDEMNIFICATION.
8.1. INDEMNITY BY THE COMPANY. If the Company registers any Restricted
Securities under the Securities Act pursuant to Section 4, the Company will
indemnify and hold harmless the Holders of such Restricted Securities
thereunder, each underwriter of such Restricted Securities thereunder and
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each other person, if any, who controls any Holder or underwriter within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such Holders, underwriter or
controlling persons may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions 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 Restricted Securities were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereof, or
arise out of or are based upon 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, or any violation by the Company of
any rule or regulation promulgated under the Securities Act or any state
securities law applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, and will
reimburse the Holders, each of their respective officers, directors and
partners, and each person controlling any of the Holders, each such
underwriter and each person who controls any such underwriter, for any
reasonable legal and any other expenses incurred in connection with
investigating, defending or settling any such claim, loss, damage, liability
or action, provided that the Company will not be liable in any such case to
the extent that any such claim, loss, damage or liability arises out of or
is based on any untrue statement or omission based upon written information
furnished to the Company by an instrument duly executed by any of the
Holders or underwriter specifically for use therein.
8.2. INDEMNITY BY THE HOLDERS. The Holders will, if Restricted
Securities held by or issuable to the Holders are included in the securities
as to which such registration is being effected, indemnify and hold harmless
the Company, each of its directors, each officer who signs the registration
statement, each underwriter, if any, of the Company's securities covered by
such a registration statement, each person who controls the Company and each
underwriter within the meaning of the Securities Act, against all claims,
losses, expenses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular or other document, 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, and will reimburse
the Company, such directors, officers, partners, persons or underwriters for
any reasonable legal or any other expenses incurred by them in connection
with investigating, defending or settling any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent,
that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such registration statement, prospectus,
offering circular or other document in reliance upon and in conformity with
written information furnished to the Company by an instrument duly executed
by the Holders specifically for use therein; provided, that the total amount
for which the Holders, its officers, directors and partners, and any person
controlling such Holders, shall be liable under this Section 8.2 shall not
in any event exceed the proceeds (net of underwriting discounts and
commissions) received by the Holders from the sale of Restricted Securities
sold by such Holders in such registration.
8.3. NOTICE BY THE INDEMNIFIED PARTY. Each party entitled to
indemnification under this Section 8 (the "Indemnified Party") shall give
notice to the party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual knowledge of any
claims as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any litigation
resulting therefrom, provided that counsel for the Indemnifying Party, who
shall conduct the defense of such claim or litigation, shall be approved by
the Indemnified Party (whose approval shall not be unreasonably withheld),
and the Indemnified Party may participate in such defense at such party's
expense, and provided further that the failure of any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of
its obligations hereunder, unless such failure resulted in actual detriment
to the Indemnifying Party. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified
Party,
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consent to entry of any judgment or enter into any settlement 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 of such claim or litigation.
8.4. UNDERWRITING AGREEMENT. Notwithstanding the foregoing, to the
extent that the provisions on indemnification contained in the underwriting
agreements entered into among the selling Holders, the Company and the
underwriters in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall be controlling as to the Restricted Securities included in
the public offering; PROVIDED, that if, as a results of this Section 8.4,
the Holders, and any persons controlling such Holders is held liable for an
amount which exceeds the aggregate proceeds received by such Holders from
the sale of Restricted Securities included in a registration, as provided in
Section 8.2, pursuant to such underwriting agreement (the "Excess
Liability"), the Company shall reimburse any such Holders for such Excess
Liability.
8.5. CONTRIBUTION. If the indemnification provided for in this Section
is held by a court of competent jurisdiction to be unavailable to an
Indemnified Party with respect to any loss, liability, claim, damage or
expense referred to therein, then the Indemnifying Party, in lieu of
indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
liability, claim, damage or expense in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of
the Indemnified Party on the other hand in connection with the statements or
omissions which resulted in such loss, liability, claim, damage or expense
as well as any other relevant equitable considerations. The relevant fault
of the Indemnifying Party and the Indemnified Party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the Indemnifying Party or by the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Notwithstanding the foregoing, the amount that any Holder shall be
obligated to contribute pursuant to this Section 8.5 shall be limited to an
amount equal to the proceeds to such Holder of the Restricted Securities
sold pursuant to the registration statement which gives rise to such
obligation to contribute (less the aggregate amount of any damages which
such Holder has otherwise been required to pay in respect of such loss,
claim, damage, liability or action or any substantially similar loss, claim,
damage, liability or action arising from the sale of such Restricted
Securities).
8.6. SURVIVAL OF INDEMNITY. The indemnification provided by this Section
shall be a continuing right to indemnification and shall survive the
registration and sale of any securities by any person entitled to
indemnification hereunder and the Term.
9. LOCKUP AGREEMENT. In consideration for the Company's performance of its
obligations under this Agreement, each Holder will, in connection with any
registration of any Restricted Securities in an underwritten offering, at the
request of the Company or the underwriters managing any underwritten offering of
the Company's securities, agree not to sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of any Restricted
Securities (other than those included in the registration) without the prior
written consent of the Company or such underwriters, as the case may be, for
such period of time (not to exceed 180 days) from the effective date of such
registration as the Company and the underwriters may specify, so long as the
Holders or stockholders holding more than one percent (1%) of the Common Stock
and all officers and directors of the Company are bound by a comparable
obligation.
10. HOLDER'S COOPERATION.
10.1. INFORMATION REGARDING HOLDERS. Each of the Holders shall promptly
furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the
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Company may request in writing and as shall be required in connection with
any registration referred to herein.
10.2. OBLIGATIONS OF THE HOLDERS. Each of the Holders holding shares
included in the registration will not (until further notice by the Company)
effect sales thereof (or deliver a prospectus to any purchaser) after
receipt of telegraphic or written notice from the Company to suspend sales
to permit the Company to correct or update a registration statement or
prospectus. At the end of the period during which the Company is obligated
to keep any registration statement filed under Section 4 current and
effective as required by applicable law, the Holders holding shares of
Restricted Securities included in the registration shall discontinue sales
of shares pursuant to such registration statement upon receipt of notice
from the Company of its intention to remove from registration the shares of
Restricted Securities covered by such registration statement that remain
unsold, and each of the Holders shall notify the Company of the number of
such shares registered that remain unsold immediately upon receipt of such
notice from the Company.
11. RULE 144. With a view to making available to the Holders of Restricted
Securities the benefits of certain rules and regulations of the SEC which may
permit the sale of the Restricted Securities to the public without registration,
the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144; and
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act.
12. TERMINATION OF RIGHTS.
12.1. The rights of any Holder to cause the Company to register
securities under Section 4 shall terminate at such time as such Holder is
able to dispose of all of the Restricted Securities owned by him in one
three-month period pursuant to the provisions of Rule 144.
12.2. Notwithstanding the provisions of Section 12.1, all rights of the
Holders under this Agreement shall terminate at 5:00 p.m. Eastern time on
the date seven years after the date of this Agreement.
13. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Holders as follows:
13.1. The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will
not violate any provision of law, any order of any court or other agency of
government, the Articles of Organization or Bylaws of the Company or any
provision of any indenture, agreement or other instrument to which it or any
of its properties or assets is bound, conflict with, result in a breach of
or constitute (with due notice or lapse of time or both) a default under any
such indenture, agreement or other instrument or result in the creation or
imposition of any lien, charge or encumbrance of any nature whatsoever upon
any of the properties or assets of the Company.
13.2. This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject to (i) applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance and moratorium
laws and other laws of general application affecting enforcement of
creditors' rights generally and (ii) the availability of equitable remedies
as such remedies may be limited by equitable principles of general
applicability (regardless of whether enforcement is sought in a proceeding
in equity or at law).
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14. DEFINITIONS. As used in this Agreement, the following terms shall have
the following meanings:
a. "Commission" shall mean the U. S. Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act.
b. "Common Stock" shall mean shares of the Company's Common Stock, no
par value.
c. "Common Stock Warrants" mean warrants to purchase shares of the
Common Stock.
d. "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar United States statute and the rules and
regulations thereunder, all as the same shall be in effect at the time.
e. "Holders" shall mean the persons named in Schedule I to this
Agreement and any other person who holds Restricted Securities and who
has assumed the obligations of this Agreement pursuant to clauses c, d,
and e of Section 3.
f. "Register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of
the effectiveness of such registration statement, and compliance with
applicable state securities laws of such states in which any of the
Holders notifies the Company of his intention to offer Registrable
Securities.
g. "Restricted Securities" shall mean the shares of the Common Stock
issued to the Sellers pursuant to the Subscription Agreement, the Common
Stock Warrants and shares of Common Stock issued upon due exercise of the
Common Stock Warrants, in each case only to the extent the same have not
been sold to the public. As to any particular Restricted Securities, such
securities shall cease to be Restricted Securities when (i) a
registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall
have been disposed of under such registration statement, (ii) such
securities shall have become eligible for resale pursuant to Rule 144(k)
and any restrictive legend on certificates representing such securities
shall have been removed, (iii) such securities shall have been otherwise
transferred or disposed of, and (x) new certificates therefor not bearing
a legend restricting further transfer shall have been delivered by the
Company, and (y) subsequent transfer or disposition of them shall not
require their registration or qualification under the Securities Act or
any similar state law then in force or compliance with Rule 144, or
(iv) such securities shall have ceased to be outstanding. Notwithstanding
the foregoing, Restricted Securities shall not include otherwise
Restricted Securities (i) sold by a person in a transaction in which his
rights under this Agreement are not properly assigned; or (ii) (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 or (C) the registration rights
associated with such securities have been terminated pursuant to
Section 13.
h. "Rule 144" shall mean Rule 144 under the Securities Act or any
successor or similar rule as may be enacted by the Commission from time
to time.
i. "Rule 145" shall mean Rule 145 under the Securities Act or any
successor or similar rule as may be enacted by the Commission from time
to time.
j. "Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar United States statute and the rules and
regulations thereunder, all as the same shall be in effect at the time.
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15. MISCELLANEOUS.
15.1. AMENDMENTS. This Agreement may be amended only by a written
instrument executed by (a) the Holders of 75% of the Restricted Securities
which are subject to this Agreement and (b) the Company. Any such amendments
shall be binding upon all Holders who have executed or assumed this
Agreement.
15.2. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which shall constitute a single instrument.
15.3. NOTICES, ETC. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be in
writing and shall be given personally, sent by facsimile transmission or
sent by prepaid air courier or certified or express mail, postage prepaid.
Any such notice shall be deemed to have been given (a) when received, if
delivered in person, sent by facsimile transmission and confirmed in writing
within three business days thereafter or sent by prepaid air courier or
(b) three business days following the mailing thereof, if mailed by
certified first class mail, postage prepaid, in any such case to the
respective addresses set forth in Schedule I to the Subscription Agreement
(or to such other address or addresses as a party may have advised the other
in the manner provided in this Section 15.3).
15.4. SEVERABILITY. If any provision of this Agreement shall be held to
be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any
manner affect or render illegal, invalid or unenforceable any other
provision of this Agreement, and this Agreement shall be carried out as if
any such illegal, invalid or unenforceable provision were not contained
herein.
15.5. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of New York without regard to principles of
conflict of law.
15.6. JURISDICTION. Each of the Holders and the Company hereby
irrevocably and unconditionally consents and submits to the exclusive
jurisdiction of any state or federal court located within the County of New
York, State of New York, in connection with any, actions, suits or
proceedings arising out of or relating to this Agreement or any of the
agreements delivered in connection herewith or the transactions contemplated
hereby or thereby. Each of the Company and Holders hereby waives any
objection to venue in such jurisdiction, and agrees that service of any
summons, complaint, notice or other process relating to such proceeding may
be effected as provided by Section 15.3.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written above.
THE COMPANY:
XX0.XXX INC.
By: /s/ XXXXXX X. XXXXXX
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
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