AGREEMENT
AGREEMENT
This
AGREEMENT,
dated
as of October 12, 2006 (the “Agreement”),
by
and among TXP Corporation, a Nevada corporation (the “Company”) and Xxxxx Xxx
Xxx XX (collectively, the “
Investor”).
BACKGROUND
WHEREAS,
the
Investor desires to pledge an aggregate of $2,000,000 in free-trading shares
of
common stock of Adobe Systems Incorporated (NASDAQ:ADBE), Fossil Incorporated
(NASDAQ:FOSL) or such other shares of free-trading common stock having a value
of $2,000,000 in the aggregate as may be agreed upon after the date hereof
between the parties hereto (the “
Collateral”),
on
behalf of the Company in favor of First Bank of Canyon Creek, or such other
lending or financing institution as may be agreed upon after the date hereof
between the parties hereto (a “
Lender”),
as
Collateral for a loan to the Company from a Lender in an amount up to $2,000,000
(the “
Loan”),
which will be further guaranteed personally and through the pledge of Common
Stock (as defined below) beneficially owned by Xxxxxxx Xxxxxx, the Company's
Chief Executive Officer.
WHEREAS,
the
Company wishes to issue to the Investor warrants (the “Warrants”),
in
the form annexed hereto as
Exhibit “A”,
to
purchase 640,000 shares (the “
Warrant Shares”)
of
the Company's common stock, par value $.001 per share (the “Common Stock),
exercisable into shares of the Company's Common Stock at a price equal to $0.50,
subject to adjustment as set forth in the Warrants, as consideration and in
exchange for the Investor agreeing to: (i) pledge the Collateral on behalf
of
the Company for the Loan, and (ii) execute such additional documentation as
may
be required to effectuate the pledge of the Collateral to a Lender
(collectively, the “
Transaction Documents”).
WHEREAS,
the
issuance of the Warrants will be made in reliance upon the provisions of Section
4(2) ("Section
4(2)")
and/or
Section 4(6) of the United States Securities Act of 1933, as amended, and/or
Regulation D ("
Regulation D
") and
the other rules and regulations promulgated thereunder (the "
Securities Act
"),
and/or upon such other exemption from the registration requirements of the
Securities Act as may be available with respect to any or all of the investments
in securities to be made hereunder.
All
capitalized terms not otherwise defined herein shall have the meanings given
to
them in the Transaction Documents.
NOW
THEREFORE
in
consideration of the premises and the mutual covenants, agreements,
representations and warranties contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
parties hereto hereby agree as follows:
ARTICLE
1.
THE
AGREEMENTS
1.1
Agreements.
Subject
to the terms and conditions set forth in this Agreement, the Warrants, and
Transaction Documents, the Company and the Investor hereby agree to execute
this
Agreement containing the following provisions which shall be effective as of
the
date hereof:
1.2
Consideration.
In
consideration of the Investors agreement to pledge the Collateral to a Lender,
the Company agrees to:
(a) issue
to the Investor the Warrants; and
(b) pay
to the Investor a one-time commitment fee during the Term (as defined in Section
1.4(a) of this Agreement) equal to 125,000 shares of common stock of the company
(the “
Commitment Fee”),
no
later than 90 days after the Collateral is deposited into the account of a
Lender; provided, however, that the Company shall pay an additional Commitment
Fee within 90 days after the renewal of the Loan by a Lender. The commitment
fee
will be fully-earned as of the date of each such deposit and not subject to
any
refund as a result of the subsequent termination of the Loan or
otherwise.
1.3
Registration Rights.
(a)
Mandatory Registration.
The
Company shall prepare, and, as soon as practicable, but in no event later than
sixty five (65) days after the date hereof (the“Scheduled
Filing Date”
), file
with the SEC a separate Registration Statement on Form SB-2 covering the resale
of all of the Warrant Shares. In the event that Form SB-2 is unavailable for
such registration, the Company shall use such other form as is available for
such registration. The Registration Statement prepared pursuant hereto shall
register for resale that number of shares of Common Stock equal to the number
of
Warrant Shares as of the Scheduled Filing Date. The Company shall use its best
efforts to have the Registration Statement declared effective by the SEC as
soon
as practicable, but in no event later than one hundred twenty (120) days after
the Scheduled Filing Date (the“Scheduled
Effective Date”
).
(b) Piggy-Back
Registrations.
If, at
any time prior to the expiration of the Registration Period (as hereinafter
defined) that there is not an effective Registration Statement covering all
of
the Warrant Shares, the Company proposes to file with the SEC a Registration
Statement for its own account or the account of others under the 1933 Act of
any
of its securities (other than a Registration Statement on Form S-4 or Form
S-8
(or their equivalents at such time) relating to securities to be issued solely
in connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee benefit
plans), the Company shall promptly send to the Investor written notice of the
Company's intention to file a Registration Statement and of the Investor's
rights under this Section 1.3(b) and, if within five (5) days after receipt
of
such notice, the Investor shall so request in writing, the Company shall include
in such Registration Statement all or any part of the Warrant shares the
Investor requests to be registered for resale, subject to the priorities set
forth in this Section 1.3 (b). No right to registration of Warrant Shares under
this Section 1.3(b) shall be construed to limit any registration required under
Section 1.3(a). The obligations of the Company under this Section 1.3(b) may
be
waived by the Investor. In the event that the Registration Statement being
filed
by the Company under this Section 1.3(b) is for an underwritten offering, the
Investor shall, unless otherwise agreed to by the Company, offer and sell the
Warrant Shares in an underwritten offering using the same underwriter or
underwriters and, subject to the provisions of this Agreement, on the same
terms
and conditions as other shares of Common Stock included in such underwritten
offering. If the managing underwriter(s) advise the Company, in writing, that
in
their reasonable good faith opinion, marketing or other factors dictate that
a
limitation on the number of shares of Common Stock which may be included in
the
Registration Statement is necessary to facilitate and not adversely affect
the
proposed offering, then the Company shall include in such
registration:
2
(1) first,
all securities the Company proposes to sell for its own account;
(2) second,
all of the securities the Investor requests to be registered for his account;
and
(3) third,
up to the full number of securities proposed to be registered for the account
of
the holders of securities entitled to inclusion of their securities in the
Registration Statement by reason of demand or mandatory registration
rights.
(c)
The Company shall keep each of the Registration Statement required to be
filed hereunder effective pursuant to Rule 415 at all times until (i) the date
as of which the Investor may sell all of the Warrant Shares covered by such
Registration Statement pursuant to Rule 144(k) promulgated under the 1933 Act
(or successor thereto) or (ii) the date on which (A) the Investor shall have
sold all of the Warrant Shares covered by such Registration Statement and (B)
none of the Warrants are outstanding (the "
Registration Period
"), each
of which Registration Statements (including any amendments or supplements
thereto and prospectuses contained therein) shall not contain any 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, in light of the
circumstances in which they were made, not misleading.
(d) The
Company shall prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to a Registration Statement and
the
prospectus used in connection with such Registration Statement, which prospectus
is to be filed pursuant to Rule 424 promulgated under the 1933 Act, as may
be
necessary to keep such Registration Statement effective at all times during
the
Registration Period, and, during such period, comply with the provisions of
the
1933 Act with respect to the disposition of all Warrant Shares covered by such
Registration Statement until such time as all of such Warrant Shares shall
have
been disposed of in accordance with the intended methods of disposition by
the
Investor as set forth in such Registration Statement.
(e)
The Investor agrees that the Company shall not be precluded from
registering any additional shares of its Common Stock underlying the securities
of the Company in the Registration Statement.
3
(f) All
expenses incurred in connection with registrations, filings, or qualifications
pursuant to Section 1.3, including all registration, filing, and
qualification fees; printers' and accounting fees; fees and disbursements of
counsel for the Company shall be borne and paid by the Company. (h)
From and after the date of this Agreement, the Company shall not, without
the prior written consent of Investor, enter into any agreement with any holder
or prospective holder of any securities of the Company that would allow such
holder or prospective holder to include such securities in any registration
unless, under the terms of such agreement, such holder or prospective holder
may
include such securities in any such registration only to the extent that the
inclusion of such securities will not reduce the number of the Warrant Shares
of
the Investor that are included.
1.4
The
Loan.
(a) Term
of the Loan. The
Company agrees that the term of the Loan shall not exceed 12 months (the
“
Term”).
(b) Investor
Approval.
The Company agrees that it shall not procure any Loan with a Lender, or
execute any definitive documentation in connection with a proposed Loan, without
the prior written consent of the Investor, which shall not be unreasonably
withheld;
provided,
however,
that
any request by a Lender of Investor to provide additional credit support or
enhancement for any such Loan shall be grounds for Investor withholding consent
to any such Loan. The Company shall provide written notice to the Investor
which
sets forth the terms of a proposed Loan at least 5 business days prior to the
execution of definitive documentation in connection with such proposed Loan.
The
Investor shall have 3 business days following receipt of the notice to
reasonably object to the terms proposed Loan. In the event such terms and
conditions are modified during the notice period, the Investors shall be given
prompt notice of such modification and shall have the right during the 3
business days following the notice of modification, whichever is longer, to
reasonably object to the terms proposed Loan.
(c) Pledge
and Guaranty of the Company's Chief Executive Officer.
It
shall be a condition precedent to any Loan that (i) Xxxxxxx Xxxxxx pledge such
number of shares of Common Stock beneficially owned by him equal to 100% of
the
initial amount of the Collateral pledged by the Investor at a price of $.50
per
share, as further collateral for the Loan with such collateral being required
to
first be exhausted before a Lender looks to the Collateral for payment or
satisfaction, and (ii) Xxxxxxx Xxxxxx personally and unconditionally guarantee
the Loan.
ARTICLE
2.
REPRESENTATIONS
AND WARRANTIES OF THE INVESTORS
2.1
Compliance with Law.
The
Investor's trading activities with respect to shares of the Company's Common
Stock will be in compliance with all applicable state and federal securities
laws, rules and regulations and rules and regulations of the principal market
on
which the Company's Common Stock is listed.
2.2
Intent.
The
Investor is entering into this Agreement for his own account for investment
purposes only and not with a view to or for sale in connection with any
distribution of the Warrants. The Investor has no present arrangement (whether
or not legally binding) at any time to sell the Warrants to or through any
person or entity; provided, however, that by making the representations herein,
the Investor does not agree to hold such securities for any minimum or other
specific term and reserves the right to dispose of the shares underlying the
Warrants at any time in accordance with federal and state securities laws
applicable to such disposition.
4
2.3 Investment
Experience.
The
Investor acknowledges that he can bear the economic risk and complete loss
of
its investment in the securities and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment contemplated hereby.
2.4.
Authorization
and Power.
The
Investor has the requisite power and authority to enter into and perform this
Agreement and to purchase the Warrants being issued to him hereunder. This
Agreement has been duly executed and delivered by the Investor and constitutes,
or shall constitute when executed and delivered, a valid and binding obligation
of the Investor enforceable against the Investor in accordance with the terms
thereof, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights generally and to general principles of equity.
2.5. Information
on Company.
The
Investor has been furnished with or has had access at the XXXXX Website of
the
Commission to the Company's Form 10-KSB for the year ended December 31, 2005
as
filed with the Commission, together with all subsequently filed Forms 10-QSB,
8-K, and filings made with the Commission available at the XXXXX website
(hereinafter referred to collectively as the "
SEC Reports
"). In
addition, the Investor has received in writing from the Company such other
information concerning its operations, financial condition and other matters
as
the Investor has requested in writing (such other information is collectively,
the "
Other Written Information
"), and
considered all factors the Investor deems material in deciding on the
advisability of investing in the securities. The Investor has had full
opportunity to conduct, and has conducted, a complete and thorough due diligence
investigation of the Company, and such opportunity has been made available
to
the Investor's professional representative(s) to ask questions of and receive
answers from representatives of the Company concerning the Company and its
financial condition and prospects, as well as request additional information
necessary to verify the accuracy of the SEC Reports and Other Written
Information provided to Investor. The foregoing, however, does not limit or
modify the representations and warranties of the Company contained in this
Agreement or the right of Investor to rely thereon.
2.6. Information
on Investor.
The
Investor is, and will be at the time of the issuance of the Warrants, an
"accredited investor", as such term is defined in Regulation D promulgated
by
the Commission under the 1933 Act, is experienced in investments and business
matters, has made investments of a speculative nature and has purchased
securities of United States publicly-owned companies in private placements
in
the past and, with its representatives, has such knowledge and experience in
financial, tax and other business matters as to enable the Investor to utilize
the information made available by the Company to evaluate the merits and risks
of and to make an informed investment decision with respect to the proposed
purchase, which represents a speculative investment. The Investor has the
authority and is duly and legally qualified to purchase and own the Warrants.
The Investor is able to bear the risk of such investment for an indefinite
period and to afford a complete loss thereof. The information set forth on
the
signature page hereto regarding the Investor is
accurate.
5
2.7. Receipt
of Warrants.
The
Investor will receive the Warrants as principal for his own account for
investment only and not with a view toward, or for resale in connection with,
the public sale or any distribution thereof.
2.8. Compliance
with Securities Act.
The
Investor understands and agrees that the Warrants have not been registered
under
the 1933 Act or any applicable state securities laws, by reason of their
issuance in a transaction that does not require registration under the 1933
Act
(based in part on the accuracy of the representations and warranties of Investor
contained herein), and that such Securities must be held indefinitely unless
a
subsequent disposition is registered under the 1933 Act or any applicable state
securities laws or is exempt from such registration. Resales of the securities
by the Investor will be made in compliance with all applicable securities
laws.
2.9. Communication
of Offer.
The
offer to sell the securities was directly communicated to the Investor by the
Company. At no time was the Investor presented with or solicited by any leaflet,
newspaper or magazine article, radio or television advertisement, or any other
form of general advertising or solicited or invited to attend a promotional
meeting otherwise than in connection and concurrently with such communicated
offer.
2.10. Confidentiality/Public
Announcement.
From the
date of this Agreement and until the Company makes a public announcement of
the
transactions contemplated by this Agreement by filing a Form 8-K, Investor
agrees he will not disclose publicly or privately the nature of the transactions
contemplated under this Agreement unless expressly agreed to in writing by
the
Company, or only to the extent required by law.
2.11. No
Governmental Review.
The
Investor understands that no United States federal or state agency or any other
governmental or state agency has passed on or made recommendations or
endorsement of the securities or the suitability of the investment in the
securities nor have such authorities passed upon or endorsed the merits of
the
offering of the securities.
2.12.
No
Market Manipulation.
The
Investor has not taken, and will not take, directly or indirectly, any action
designed to, or that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of the Common Stock to facilitate
the
sale or resale of the securities or affect the price at which the securities
may
be issued or resold.
2.13.
Short
Position and Short Sales.
The
Investor covenants that neither he nor any of his affiliates will engage in
any
illegal short sales of or illegal hedging transactions with respect to the
Common Stock.
2.14. Survival.
The
foregoing representations and warranties shall survive for a period of two
years
from the date hereof.
6
ARTICLE
3.
REPRESENTATIONS
AND WARRANTIES OF THE COMPANY
3.2. Authority.
(i) The
Company has the requisite corporate power and corporate authority to enter
into
and perform its obligations under this Agreement and to issue the Warrants
and
the Warrant Shares pursuant to their respective terms,
(ii) the
execution, issuance and delivery of the this Agreement, the Warrants by the
Company and the consummation by it of the transactions contemplated thereby
have
been duly authorized by all necessary corporate action and no further consent
or
authorization of the Company or its Board of Directors or stockholders is
required, and
(iii)
this Agreement and the Warrants have been duly executed and delivered by the
Company and shall constitute valid and binding obligations of the Company
enforceable against the Company in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws relating to, or affecting generally the enforcement of, creditors' rights
and remedies or by other equitable principles of general application. The
Company has duly and validly authorized and reserved for issuance shares of
Common Stock sufficient in number for the conversion of the exercise of the
Warrants. The Company further acknowledges that its obligation to issue Warrant
Shares upon exercise of the Warrants in accordance with this Agreement is
absolute and unconditional regardless of the dilutive effect that such issuance
may have on the ownership interests of other stockholders of the
Company.
3.3. Common
Stock.
The
Company has registered its Common Stock pursuant to Section
12(b)
or
(g) of
the Exchange Act and is in full compliance with all reporting requirements
of
the Exchange Act, and the Company is in compliance with all requirements for
the
continued listing or quotation of its Common Stock, and such Common Stock is
currently listed or quoted on, the Principal Market. As of the date hereof,
the
Principal Market is the OTC Bulletin Board and the Company has not received
any
notice regarding, and to its knowledge there is no threat of, the termination
or
discontinuance of the eligibility of the Common Stock for such posting or
listing.
3.4. SEC
Documents.
The SEC
Reports contain all material information relating to the Company and its
operations and financial condition as of their respective dates which
information is required to be disclosed therein and do not contain any untrue
statement of a material fact or omit to state a material fact necessary in
order
to make the statements contained therein not misleading in light of the
circumstances under which they were made. Since the date of the financial
statements included in the SEC Reports, there has been no material adverse
event
relating to the Company's business, financial condition or affairs not disclosed
in the SEC Reports. The SEC Reports do not contain any untrue statement of
a
material fact.
3.5. Exemption
from Registration; Valid Issuances.
Subject
to the accuracy of the Investor's representations in Article 2, the sale of
the
Warrants and the Warrant Shares will not require registration under the
Securities Act and/or any applicable state securities law (other than any SEC,
Principal Market or state securities filings that may be required to be made
by
the Company subsequent to closing and any registration statement that may be
filed pursuant hereto). When issued and paid for in accordance with the
Warrants, the Warrant Shares will be duly and validly issued, fully paid, and
non-assessable. Neither the sales of the Warrants or the Warrant Shares pursuant
to, nor the Company's performance of its obligations under this Agreement and
the Warrants will
(i)
result in the creation or imposition by the Company of any liens, charges,
claims or other encumbrances upon the Warrants or the Warrant Shares or, except
as contemplated herein, any of the assets of the Company, or
(ii)
entitle the holders of outstanding capital shares to preemptive or other rights
to subscribe for or acquire the capital shares or other securities of the
Company. None of the securities shall subject the Investor to personal liability
to the Company or its creditors by reason of the possession
thereof.
7
3.6. No
Directed Selling, General Solicitation or Advertising in Regard to this
Transaction.
Neither
the Company nor any of its affiliates nor, to the knowledge of the Company,
any
person acting on its or their behalf
(i) has
conducted or will conduct any general solicitation (as that term is used in
Rule
502(c)
of Regulation
D) or
general advertising with respect to the sale of the Warrants, or
(ii) has
made or will make any offers or sales of any security or solicited any offers
to
buy any security under any circumstances that would require registration of
the
sale of the securities under the Securities Act.
3.7. No
Conflicts.
The
execution, delivery and performance of this Agreement and the consummation
by
the Company of the transactions contemplated hereby or relating hereto do not
and will not (i) result in a violation of the Company's charter documents or
bylaws or other organizational documents or (ii) conflict with, or constitute
a
default (or an event which with notice or lapse of time or both would become
a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of any agreement, indenture or instrument or
obligation to which the Company is a party or by which its properties or assets
are bound, or result in a violation of any law, rule, or regulation, or any
order, judgment or decree of any court or governmental agency applicable to
the
Investor or its properties (except for such conflicts, defaults and violations
as would not, individually or in the aggregate, have a material adverse effect
on the Company). The Company is not required to obtain any consent,
authorization or order of, or make any filing or registration with, any court
or
governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement sell the Warrants in accordance with the terms
hereof, provided that for purposes of the representation made in this sentence,
the Company is assuming and relying upon the accuracy of the relevant
representations and agreements of the Investor herein.
3.8. No
Material Adverse Change.
Since
December 31, 2005 no material adverse effect has occurred or exists with respect
to the Company, except as disclosed in the SEC Reports filed prior to the date
hereof and available on XXXXX.
3.9. Litigation
and Other Proceedings.
Except
as disclosed in the SEC Reports, there are no lawsuits or proceedings pending
or, to the knowledge of the Company, threatened, against the Company, nor has
the Company received any written or oral notice of any such action, suit,
proceeding or investigation, which could reasonably be expected to have a
material adverse effect. Except as set forth in the SEC Reports, no judgment,
order, writ, injunction or decree or award has been issued by or, to the
knowledge of the Company, requested of any court, arbitrator or governmental
agency which could result in a material adverse effect. There is no action,
proceeding or investigation by the Company currently pending or that the Company
intends to initiate.
8
3.10. No
Misleading or Untrue Communication.
The
Company and, to the knowledge of the Company, any person representing the
Company, or any other person selling or offering to sell the Warrants in
connection with the transaction contemplated by this Agreement, have not made,
at any time, any oral communication in connection with the offer or sale of
the
same which, together with all such communications, including the SEC Reports,
taken as a whole, contained any untrue statement of a material fact or omits
to
state a material fact necessary in order to make the statements contained herein
or therein not misleading in light of the circumstances under which they were
made.
3.11 Reservation
of Common Stock.
As of
the date hereof, the Company has reserved and the Company shall continue to
reserve and keep available at all times shares of Common Stock for the purpose
of enabling the Company to issue the Warrant Shares pursuant to any exercise
of
the Warrants in an amount not less than the number needed to provide for the
issuance of Warrant Shares, as may be adjusted from time to time. The Company
further agrees that if at any time the number of shares of Common Stock
issuable
upon conversion of the Warrants would cause the Company to be obligated to
issue
a number of shares of Common Stock in excess of its authorized capital (after
taking into account all other capital shares equivalents then existing), it
shall promptly commence all necessary corporate and stockholder action necessary
to increase its authorized capital so as to eliminate the aforesaid
condition.
3.12. Exchange
Act
Registration.
The
Company will cause its Common Stock to continue to be registered under
Section
12(b)
or
(g) of
the Exchange Act, will use its best efforts to comply in all respects with
its
reporting and filing obligations under the Exchange Act.
3.13. Corporate
Existence; Conflicting Agreements.
The
Company will take all steps necessary to preserve and continue the corporate
existence of the Company. The Company shall not enter into any agreement, the
terms of which agreement would restrict or impair the right or ability of the
Company to perform any of its obligations under this Agreement or any of the
other Transaction Documents.
9
3.14.
Issuance of Warrant Shares.
The
sale of the Warrants and the issuance of the Warrant Shares pursuant to exercise
of the Warrants shall be made in accordance with the provisions and requirements
Section
4(2),
4(6) or
Regulation
D and
any applicable state securities law. The Company shall make any necessary SEC
and “blue sky” filings required to be made by the Company in connection with the
sale of such securities to the Investor as required by all applicable
laws.
ARTICLE
4.
LEGENDS
4.1
Legends.
The
Warrant Shares shall bear the following or similar legend:
"THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED OR APPLICABLE STATE SECURITIES LAWS. THESE
SHARES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT OR ANY
APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY
TO TXP CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED."
(i) Warrants
Legend.
The
Warrants shall bear the following or similar legend:
"THIS
WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED OR APPLICABLE
STATE
SECURITIES LAWS. THIS WARRANT AND THE COMMON SHARES ISSUABLE UPON EXERCISE
OF
THIS WARRANT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN
THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THIS WARRANT UNDER SAID
ACT
OR ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO TXP CORPORATION THAT SUCH REGISTRATION IS NOT
REQUIRED."
ARTICLE
5.
GENERAL
PROVISIONS
5.1 Specific
Performance. The
parties hereto acknowledge and agree that the breach of this Agreement would
cause irreparable damage to the non-breaching parties and that the non-breaching
parties will not have an adequate remedy at law. Therefore, the obligations
of
each of the parties under this Agreement, shall be enforceable by a decree
of
specific performance issued by any court of competent jurisdiction, and
appropriate injunctive relief may be applied for and granted in connection
therewith. Such remedies shall, however, be cumulative and not exclusive and
shall be in addition to any other remedies which any party may have under this
Agreement or otherwise.
10
5.2 Further
Assurances. The
parties hereto each agree to execute and deliver such other documents or
agreements and to take such other action as may be reasonably necessary or
desirable for the implementation of this Agreement and the consummation of
the
transactions contemplated hereby.
5.3 Governing
Law; Venue.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Texas.
Venue
. The
parties (a) hereby irrevocably and unconditionally submit to the jurisdiction
of
the state and federal courts sitting in Dallas County, Texas for the purpose
of
any suit, action or other proceeding arising out of or based upon this
Agreement, (b) agree not to commence any suit, action or other proceeding
arising out of or based upon this Agreement except in the state and federal
courts sitting in Dallas County, Texas, and (c) hereby waive, and agree not
to
assert, by way of motion, as a defense, or otherwise, in any such suit, action
or proceeding, any claim that it is not subject personally to the jurisdiction
of the above-referenced courts, that its property is exempt or immune from
attachment or execution, that the suit, action or proceeding is brought in
an
inconvenient forum, that the venue of the suit, action or proceeding is improper
or that this Agreement or the subject matter hereof may not be enforced in
or by
such court.
5.4 Headings. Section
headings of this Agreement are for reference purposes only and are to be given
no effect in the construction or interpretation of this Agreement.
5.5 Binding
Effect. This
Agreement is irrevocable and shall be binding upon and inure to the benefit
of
the parties and their respective successors and permitted assigns.
5.6 Counterparts.
This
Agreement may be executed in counterparts, each of which when executed by any
party will be deemed to be an original and all of which counterparts will
together constitute one and the same Agreement. Delivery of executed copies
of
this Agreement by telecopier will constitute proper delivery, provided that
originally executed counterparts are delivered to the parties within a
reasonable time thereafter.
5.7 Expenses.
Each
party shall pay its own expenses incident to the negotiation, preparation and
performance of this Agreement and the transactions contemplated hereby,
including all fees and expenses of its counsel and accountants for all
activities of such counsel and accountants undertaken pursuant to this
Agreement, whether or not the transactions contemplated hereby are
consummated.
5.8 Amendments;
Waivers.
This
Agreement may not be amended or modified, nor may compliance with any condition
or covenant set forth herein be waived, except by a writing duly and validly
executed by Investor and the Company, or, in the case of a waiver, the party
waiving compliance. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any such right, power or privilege, or any
single or partial exercise of any such right, power or privilege, preclude
any
further exercise thereof or the exercise of any other such right, power or
privilege.
5.10
Notices.
All
notices, requests, and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given, delivered
and received (i) upon personal delivery to the party to be notified; (ii) when
sent by confirmed electronic mail or facsimile if sent during normal business
hours of the recipient, and if not so confirmed, then on the next business
day;
(iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or (iv) one (1) business day after
the business day of deposit with a nationally recognized overnight courier,
specifying next-day delivery, with written verification of receipt. All
communications shall be sent to the respective parties at their addresses as
set
forth on the signature page hereto or to such email address, facsimile number,
or address as subsequently modified by written notice given in accordance with
this Section 5.10.
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IN
WITNESS WHEREOF, this Agreement has been duly executed as of the day and year
first written above.
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TXP
CORPORATION
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By:
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/s/ Xxxxxxx
Xxxxxx
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Name:
Xxxxxxx Xxxxxx
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Title:
Chief Executive Officere
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/s/ Xxxxx
Xxx Xxx, XX
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Xxxxx Xxx Xxx, XX |
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