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EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into as
of April 24, 1998, by and among Xxxxxx.xxx, Inc., a Delaware corporation (the
"Company"), and the former stockholders of Telebook, Inc. ("Telebook") listed on
Exhibit A hereto (each a "Stockholder" and, collectively, the "Stockholders").
RECITALS
A. The Company, the Stockholders, Xxxxxx.xxx International, Inc. (the
"Purchaser") and Telebook are parties to the Agreement and Plan of Merger dated
as of April 24, 1998 (the "Merger Agreement"), whereby Telebook will be merged
with and into the Purchaser, with the Purchaser as the surviving corporation.
B. Pursuant to the Merger Agreement, the Company is transferring to the
Stockholders up to 293,996 shares of the Company's common stock, par value $0.01
per share (the "Common Stock"), subject to adjustment as provided in the Merger
Agreement (such number of shares, as adjusted, being referred to herein as the
"Shares").
C. The execution of this Agreement by the parties hereto is a condition
to the parties' obligations under the Merger Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS
For purposes of this Agreement:
(a) "Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
(b) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated by the SEC thereunder.
(c) "Holder" means any holder of Registrable Securities.
(d) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement on Form
S-3 (or any successor form) in compliance with the Act, and the declaration or
ordering of effectiveness of such registration statement or document.
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(e) "Registrable Securities" means (i) the Shares issued under the
Merger Agreement other than the Shares included in the Escrow Amount (as defined
in the Merger Agreement) and the Shares subject to the Pledge Agreements to
Employment Agreements, dated the date hereof, between the Company and each of
the Stockholders, and (ii) any shares of Common Stock issued as (or issuable
upon the conversion or exercise of any warrant, right or other security that is
issued as) a dividend or other distribution with respect to, or in exchange for
or in replacement of, the securities described in clause (i); provided, however,
that those shares as to which any of the following apply shall cease to be
Registrable Securities: (A) a registration statement with respect to the sale of
such Registrable Securities shall have become effective under the Act and such
Registrable Securities shall have been disposed of under such registration
statement, (B) such Registrable Securities can be sold pursuant to Rule 144
promulgated under the Act ("Rule 144") or any successor rule or provision
promulgated under the Act without volume limitation or within a three-month
period pursuant to the volume limitations and other applicable requirements of
Rule 144, or (C) such Registrable Securities shall have ceased to be
outstanding.
(f) "SEC" means the United States Securities and Exchange Commission.
(g) "Trading Day" means any day on which the Nasdaq National Market is
open for trading.
(h) "Transfer" means to sell, assign, transfer or otherwise dispose
(other than by a pledge) of all or any part of the Common Stock.
2. REGISTRATION RIGHTS
(a) AGREED REGISTRATION
(i) Subject to the other provisions of this Section 2 and after
the date the Company becomes eligible to use Form S-3 (or any successor form),
the Company shall undertake to use commercially reasonable efforts to register
the Registrable Securities pursuant to this Section 2(a). If the Company expects
to be able to effect such registration, it shall notify the Holders in writing
that it plans to file a registration statement and effect a registration under
the Act with respect to up to the total number of Registrable Securities issued
under the Merger Agreement (including but not limited to shares issued pursuant
to the Registration Upward Adjustment or Rule 144 Upward Adjustment, as defined
and set forth in Section 1.6.1 of the Merger Agreement) or issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
that is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of, the Registrable Securities issued under the
Merger Agreement. Within 10 days of receipt of such notice, each Holder shall
notify
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the Company in writing whether such Holder will participate in such registration
and, if so, the number of Registrable Securities to be included (each such
notice, a "Participation Notice"). Subject to the other provisions of this
Section 2, the Company shall use commercially reasonable efforts to effect as
soon as practicable following the receipt of the Participation Notices the
registration under the Act of all Registrable Securities that such Holder or
Holders so request to be registered.
(ii) The Company shall not be required to include in a
registration pursuant to Section 2(a)(i) Registrable Securities held by a Holder
(and shall have no further obligations pursuant to this Section 2(a) with
respect to such Holder) if the Company does not receive a Participation Notice
from such Holder within the time period specified in Section 2(a)(i) or such
Holder subsequently withdraws his or her Participation Notice.
(iii) All obligations of the Company pursuant to Section 2(a)(i)
shall terminate prior to filing and/or effectiveness if the Company does not
receive a Participation Notice from any Holder or if each participating Holder
subsequently withdraws his or her Participation Notice.
(iv) Notwithstanding the foregoing, if the Company shall furnish
to the Holders a certificate signed by an officer of the Company stating that in
the good-faith judgment of the Board of Directors, it would be detrimental to
the Company and its stockholders for such registration statement to be filed or
declared effective (including, without limitation, because the Company has filed
or expects to file a registration statement for the public offering of the
Company's securities to the general public) and that it is therefore advisable
not to file or request effectiveness of, as the case may be, such registration
statement, then the Company shall have the right to defer the filing or
effectiveness, or both. If, pursuant to such deferral or deferrals, the Company
is unable to file or request effectiveness before the first anniversary of the
date of this Agreement, the Company shall not be obligated to effect a
registration pursuant to this Section 2(a).
(v) The Company shall be obligated to effect only one
registration pursuant to this Section 2(a). If, pursuant to Sections 2(a)(iii)
or (iv), the Company is not obligated to effect a registration, the Company has
no further registration obligations pursuant to this Section 2(a).
(vi) The Company shall not be required under this Section 2(a) to
include any Registrable Securities in an underwritten offering.
(vii) Notwithstanding any other provision in this Section 2(a),
if, at any time during the period commencing on the effective date of the
registration
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statement filed pursuant to this Section 2(a) and ending on the date on which
the Company is no longer obligated to take action to maintain the effectiveness
of the registration statement pursuant to Section 2(c)(i), there is a suspension
of trading on the sale of shares of the Company's Common Stock for more than one
Trading Day on the Nasdaq National Market or on any national securities exchange
on which the Company's Common Stock is listed, the Company agrees at its option
to: (i) extend the time period mentioned in Section 2(c)(i) by the number of
days in the period from and including the date upon which such suspension takes
effect to and including the date upon which trading resumes; or (ii) use all
commercially reasonable efforts to effect a registration as soon as commercially
practicable after trading resumes pursuant to this Section 2.
(viii) In the event that, during the period commencing on the
effective date of the registration statement filed pursuant to this Section 2(a)
and ending on the date on which the Company is no longer obligated to take
action to maintain the effectiveness of the registration statement pursuant to
Section 2(c)(i), the Company provides a notice pursuant to Section 2(c)(v), the
time period mentioned in Section 2(c)(i) shall be tolled until the Company
provides an amendment or supplement to the registration statement pursuant to
Section 2(c)(ii).
(b) PIGGYBACK REGISTRATION
(i) If prior to the first anniversary of the date hereof the
Company proposes (whether at the request of any other person or otherwise) to
register any equity security under the Act on any registration form (otherwise
than for the registration of securities to be offered and sold pursuant to (a)
an employee benefit plan, (b) a dividend or interest reinvestment plan, (c)
other similar plans (d) any offering with any debt or preferred stock component,
including, but not limited to, an offering of convertible securities, or (e)
reclassifications of securities, mergers, consolidations and acquisitions of
assets on Form S-4 or any successor thereto) prescribed by the SEC permitting a
secondary offering or distribution, the Company shall promptly give to the
Holders written notice of such proposal which shall describe in detail the
proposed registration and distribution and, upon the written request of any
Holder given within 15 days after the date of any such notice, proceed to
include in such registration such shares of Registrable Securities as have been
requested by any such Holder to be included in such registration. The Company
shall in each instance use commercially reasonable efforts to effect the
registration under the Act of all Registrable Securities that such Holder or
Holders so request to be registered.
(ii) If the registration of which the Company gives notices is
for a registered public offering involving an underwriting, the Company shall so
advise the
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Holders as a part of the written notice given pursuant to this Section 2(b). In
such event, the right of any 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 Registrable Securities in the underwriting, to
the extent requested, to the extent provided herein. All Holders proposing to
distribute their securities through such underwriting 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
managing underwriter selected for such underwriting by the Company.
Notwithstanding any other provision of this section, if the managing underwriter
determines and advises the Company in writing that, in its opinion, the
inclusion of the Registrable Securities with the securities being registered by
the Company and other shares of prospective sellers would have a material
adverse effect on the distribution of all such securities, then the managing
underwriter may limit the number of shares of Registrable Securities and other
prospective sellers to be included in the registration and underwriting, on a
pro rata basis based on the total number of securities (including, without
limitation, Registrable Securities) entitled to registration pursuant to
registration rights granted by the Company; provided, however, no such reduction
may reduce the number of securities being sold by all the holders of securities
entitled to registration other than the Company to less than fifteen percent
(15%) of the shares being sold in such offering. To facilitate the allocation of
shares in accordance with the above provisions, the Company or the underwriters
may round the number of shares allocated to any Holder or other holder to the
nearest 100 shares. If any Holder or holder of other securities entitled to
registration disapproves of the terms of any such underwriting, such Holder may
elect to withdraw therefrom by written notice to the Company and the managing
underwriter delivered at least twenty-one (21) days prior to the effective date
of the registration statement. Any securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration, and shall not be
transferred in a public distribution prior to one hundred eighty (180) days
after the effective date of the registration statement relating thereto.
(iii) The Company shall have the right to terminate or withdraw
any registration initiated by it under this Section 2(b) prior to the
effectiveness of such registration, whether or not any Holder has elected to
include securities in such registration.
(c) OBLIGATIONS OF THE COMPANY
Whenever required under this Agreement to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
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(i) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use commercially reasonable efforts
to cause such registration statement to become effective, and, upon the request
of any Holder participating in the distribution, keep such registration
statement effective for up to 10 days or until the distribution contemplated in
the registration statement has been completed, whichever is earlier; provided,
however, that the Company shall be required to effect such registration only if
Form S-3 (or any successor form) is available.
(ii) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Act with
respect to the disposition of all securities covered by such registration
statement.
(iii) Furnish to the Holders participating in a distribution such
number of copies of a prospectus relating thereto, including a preliminary
prospectus, conforming with the requirements of the Act, and such other
documents as any such Holder may reasonably request to facilitate the
disposition of all securities covered by such registration statement.
(iv) Use commercially reasonable efforts to register and qualify
the securities covered by such registration statement under such other
applicable securities or Blue Sky laws of such jurisdictions as are reasonably
requested by any participating Holder; provided, however, that the Company shall
not be required in connection therewith or as a condition thereto to qualify to
do business or to file a general consent to service of process in any such
states or jurisdictions unless the Company is already subject to service in such
jurisdictions and except as may be required by the Act.
(v) Notify each Holder participating in a distribution, at any
time when a prospectus relating to a registration statement effected pursuant to
Section 2(a) or (b) is required to be delivered under the 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 a material fact or
omits to state a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing.
(vi) Apply for listing and use commercially reasonable efforts to
list the Registrable Securities being registered on the Nasdaq National Market
or any national securities exchange on which the Common Stock is listed.
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(d) FURNISH INFORMATION
It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Agreement that each Holder participating in a
distribution shall (i) furnish to the Company such information regarding itself,
the Registrable Securities held by it and the intended plan of distribution of
such securities as is reasonably required to effect the registration of its
Registrable Securities and (ii) execute such documents in connection with such
registration as the Company may reasonably request.
(e) EXPENSES OF REGISTRATION
The Company shall bear and pay all expenses incurred in connection with
any registration, filing or qualification of Registrable Securities with respect
to registrations pursuant to Section 2(a) and (b), including, without
limitation, all registration, filing and qualification fees, printing and
accounting fees, the fees and disbursements of counsel for the Company, and up
to US$20,000 in fees and expenses of one counsel for all Holders; provided,
however, that the Holders participating in an underwritten registration pursuant
to Section 2(b) shall bear the expenses of any underwriting discounts and
commissions relating to the Registrable Securities.
(f) INDEMNIFICATION
In the event any Registrable Securities are included in a registration
statement under this Agreement:
(i) To the extent permitted by law, the Company will indemnify
and hold harmless each Holder participating in a distribution, each of its
agents, any underwriter (as defined in the Act) for such Holder and each person,
if any, who controls such Holder or such underwriter within the meaning of the
Act or the Exchange Act, against any losses, claims, damages or liabilities
(joint or several) to which they may become subject under the Act, the Exchange
Act or other applicable federal or state law, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
on any of the following statements, omissions or violations (collectively, a
"Violation"): (A) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein, or any amendments or
supplements thereto, (B) the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, or (C) any violation or alleged violation by the Company of the Act,
the Exchange Act, any applicable state securities law or any rule or regulation
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promulgated under the Act, the Exchange Act or any applicable state securities
law with respect to such registration statement; and the Company will reimburse
each such Holder or any of its agents for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 2(f)(i) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the Company's consent, which consent shall not be
unreasonably withheld, nor shall the Company be liable in any such case for any
such loss, claim, damage, liability or action (1) to the extent that it arises
out of or is based on a Violation that occurs in reliance on and in conformity
with written information furnished expressly for use in connection with such
registration by, or on behalf of, such Holder or any underwriter or controlling
person or (2) to the extent that it arises out of or is based on an untrue
statement or alleged untrue statement or omission or alleged omission that (w)
was contained in a preliminary prospectus delivered by a Holder to the person
asserting any such loss, claim, damage or liability (the "Party"); (x) was
corrected in a final or amended prospectus, which was made available to such
Holder by the Company prior to the confirmation of the sale of the Registrable
Securities to the Party; (y) was not delivered by the Holder to the Party at or
prior to the confirmation of such sale to the Party; and (z) such delivery was
required by the Act. Any request for indemnification shall be made in accordance
with Section 2(f)(iii).
(ii) To the extent permitted by law, each Holder who participates
in a distribution pursuant to this Agreement will indemnify and hold harmless
the Company, each of its officers, directors, agents and employees, any
underwriter, each person, if any, who controls the Company within the meaning of
the Act, any other stockholder selling securities in such registration statement
or any of its officers, directors, agents and employees and any person who
controls such selling stockholder, against any losses, claims, damages or
liabilities (joint or several) to which they may become subject under the Act,
the Exchange Act or other applicable federal or state law, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based on any Violation, in each case to the extent (and only to the
extent) that such Violation occurs in reliance on and in conformity with written
information furnished by, or on behalf of, such Holder expressly for use in
connection with such registration; and each Holder will reimburse the Company or
any such officer, director, agent, employee, controlling person, underwriter or
other selling stockholder, officer, director, agent, employee or controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
Section 2(f)(ii) shall not apply (A) to amounts paid in settlement of any such
loss, claim, damage, liability or action if such
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settlement is effected without the consent of the Holders, which consent shall
not be unreasonably withheld, or (B) in the case of a sale directly by the
Company of its securities (including a sale of such securities through any
underwriter retained by the Company to engage in a distribution solely on behalf
of the Company), to the extent that the claim arises out of or is based on an
untrue statement or alleged untrue statement or omission or alleged omission
that was contained in a preliminary prospectus and corrected in a final or
amended prospectus, and the Company failed to deliver a copy of the final or
amended prospectus at or prior to the confirmation of the sale of the securities
to the person asserting any such loss, claim, damage or liability, in any case
where such delivery is required by the Act; provided, further, that in no event
shall any Holder's obligation to indemnify under this Section 2(f)(ii) exceed
the net proceeds from the offering received by such Holder. Any request for
indemnification shall be made in accordance with Section 2(f)(iii).
(iii) Promptly after receipt by an indemnified party under this
Section 2(f) of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2(f), deliver to
the indemnifying party a written notice of the commencement thereof, and the
indemnifying party shall have the right to participate in and, to the extent the
indemnifying party so desires, jointly with any other indemnifying party
similarly notified, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if, in the opinion of counsel for the indemnified
party, representation of such indemnified party by counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable period of time of the commencement of any
such action shall relieve such indemnifying party of any liability to the
indemnified party under this Section 2(f) to the extent prejudicial to its
ability to defend such action, but the omission so to deliver written notice to
the indemnifying party will not relieve it of any liability it may have to any
indemnified party otherwise than under this Section 2(f).
(iv) If recovery is not available under the foregoing
indemnification provisions of this Section 2(f), for any reason other than as
specified therein, then the party entitled to indemnification by the terms
thereof shall be entitled to contribution to liabilities and expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party, except to the extent that contribution is not
permitted under Section 11(f) of the Act. The relative fault of the
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indemnifying party and indemnified party shall be determined by reference to,
among other things, the parties' relative knowledge and access to information
concerning the matter with respect to which the claim was asserted, the
opportunity to correct and prevent any statement or omission and any other
equitable considerations appropriate under the circumstances, including, without
limitation, whether any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, on the one hand, or by the Stockholder,
on the other hand. No Holder shall be obligated to make any contribution
hereunder which in the aggregate exceeds the net proceeds from the offering
received by such Holder, less the aggregate amount of any damages which it and
its controlling persons have otherwise been required to pay in respect of the
same claim or any substantially similar claim.
(g) REPORTS UNDER THE ACT
With a view to making available to Holders the benefits of Rule 144 and
any other rule or regulation of the SEC that may at any time permit a Holder to
sell securities of the Company to the public without registration, the Company
agrees to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times;
(ii) take such action as is necessary to enable a Holder to
utilize Form S-3 under the Act for the sale of Registrable Securities;
(iii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Exchange Act; and
(iv) furnish to each Holder, so long as such Holder owns any
Registrable Securities, forthwith upon request (A) a written statement by the
Company that it has complied with the reporting requirements of Rule 144, the
Act and the Exchange Act, (B) a copy of the Company's most recent annual or
quarterly report and such other reports and documents so filed by the Company,
and (C) such other information as may be reasonably requested in availing such
Holder of any SEC rule or regulation that permits the selling of any such
securities without registration.
(h) LOCK-UP AGREEMENT
Each Stockholder hereby agrees that such Stockholder shall not, to the
extent requested by the Company or an underwriter of Common Stock (or other
securities with an equity component) of the Company, sell or otherwise transfer
or dispose (other than to donees who agree to be similarly bound) of any
Registrable Securities
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for 180 days following the effective date of a registration statement of the
Company filed under the Act; provided, however, that all officers and directors
of the Company and all other persons with registration rights (whether or not
pursuant to this Agreement) enter into similar agreements. In order to enforce
the foregoing covenant, the Company may impose stop-transfer instructions with
respect to the Registrable Securities (and the shares or securities of every
other person subject to the foregoing restriction) until the end of such period.
3. REMEDIES
In the event of a breach by any party hereto or assignee hereunder of
its obligations under this Agreement, the other parties hereto, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Each party hereto agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
4. ATTORNEYS' FEES
In the event of any action to enforce this Agreement, for interpretation
or construction of this Agreement or on account of any breach of or default
under this Agreement, the prevailing party in such action shall be entitled to
recover, in addition to all other relief, from the other party all reasonable
attorneys' fees incurred by the prevailing party in connection with such action
(including, but not limited to, any appeal thereof); provided, however, that if
more than one item is disputed and the final decision is against each party as
to one or more of the disputed items, then such attorneys' fees shall be
apportioned in accordance with the monetary values of the items decided against
each party.
5. NOTICES
Any notice or demand desired or required to be given hereunder shall be
in writing and deemed given when personally delivered, delivered by overnight
courier, or sent by facsimile, and addressed to each party as set forth below,
or to such other address as any party shall have previously designated by such a
notice. Any notice so delivered personally shall be deemed to be received on the
date of delivery, any notice so sent by facsimile shall be deemed to be received
on the date reception is confirmed and any notice so delivered by overnight
courier shall be deemed to be received on the date of receipt.
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Notices to the Company and the Stockholders shall be sent as follows:
TO THE COMPANY:
(a) Xxxxxx.xxx, Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx
with a copy to:
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attention: L. Xxxxxxxx Xxxxxx, Esq.
TO THE STOCKHOLDERS:
(b) Xxxxxxx X.X. Xxxxxxxxx
0000 Xxxx Xxxx Xxxxx
Xxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
with a copy to:
XxXxxxxx & Xxxx
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
6. AMENDMENTS AND WAIVERS
Any term of this Agreement may be amended and the observance of any term
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of the Company and
the Holders of a majority in interest of the Registrable Securities.
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7. SEVERABILITY
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement, and
the balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
8. TERM
This Agreement shall terminate as to the Stockholders or any permitted
assignee, upon the earlier of the first anniversary of the date of this
Agreement and such date as the Stockholders or any such permitted assignee
together with its affiliates beneficially owns less than 10% of the Registrable
Securities originally issued to such Stockholders (appropriately adjusted for
stock splits and similar events); provided, however, that the rights and
obligations pursuant to Section 2(g) shall terminate upon the second anniversary
of the date of this Agreement.
9. APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the
laws of the state of Washington as applied to agreements among Washington
residents executed and to be performed entirely within such state.
10. COUNTERPARTS
This Agreement may be executed simultaneously in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11. ENTIRE AGREEMENT
This Agreement constitutes the full and entire understanding and
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements with respect to the subject matter hereof.
[This space intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first above written.
COMPANY:
XXXXXX.XXX, INC..
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx, Vice President and
General Counsel
STOCKHOLDERS:
By: /s/ Xxxxxxx X.X. Xxxxxxxxx
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Name: Xxxxxxx X.X. Xxxxxxxxx
By: /s/ Xxxxxxxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxxx
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx Xxxxxxx
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