Contract
Execution
Copy
This
Registration Rights Agreement (“Agreement”),
dated
as of October 13, 2005, is made by and
between XXXXXXXX
TECHNOLOGIES, INC.,
a
Florida corporation (the “Company”),
and
BRITTANY
CAPITAL MANAGEMENT LTD., a Bahamian Corporation (the “Subscriber”).
Recitals
WHEREAS,
upon the terms and subject to the conditions of the Private Equity Credit
Agreement (“Purchase
Agreement”)
between the Subscriber and the Company, the Company may from time to time
issue
and sell
to
the Subscriber shares of the common stock
of
the Company (“Subscribed
Shares”),
$.0001 par value per share (the “Common
Stock”)
having
an aggregate Purchase Price (as defined in the Purchase Agreement) of
up
to
Five Million Dollars ($5,000,000);
and
WHEREAS,
to induce the Subscriber to execute and deliver the Purchase Agreement, the
Company
has agreed to provide certain registration rights under the Securities Act
of
1933,
as
amended, and
the
rules and regulations thereunder, or any similar successor statute
(collectively, “Securities
Act”),
and
applicable
state securities laws with respect to the Subscribed Shares;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants contained
herein and
other
good and valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged,
the Company and the Subscriber hereby agree as follows:
1. Definitions.
(a) As
used
in this Agreement, the following terns shall have the following
meanings:
(i) “Effective
Date”
shall
mean the date on which the Registration Statement is declared effective by
the
SEC.
(ii)
“Potential
Material Event”
means
any of the following: (a) the possession by the Company of
material information not ripe for disclosure in a Registration Statement,
which
shall be evidenced by determination
in good faith by the Board of Directors of the Company that disclosure of
such
information in the
Registration Statement would be detrimental to the business and affairs
of
the
Company or (b) any material
engagement or activity by the Company which would, in the good faith
determination of
the
Board of
Directors of the Company, be adversely affected by disclosure in the
Registration Statement at
such
time, which
determination shall be accompanied by a good faith determination by the Board
of
Directors of the Company
that the Registration Statement would be materially misleading absent
the inclusion of such information.
(iii) “Registration
Statement”
shall
have the meaning set forth in Section
2(a).
(iv) “Registrable
Securities”
means
(i) 10,000,000 shares of Common Stock issuable as Subscribed Shares and (ii)
1,727,712 shares of Common Stock which may be issued to the Subscriber as
Liquidated Damages Shares under Section
5(a)
hereof.
(v)
“Registration”
refers
to the registration effected by preparing
and filing
a
Registration Statement and
the
declaration or ordering of effectiveness of the Registration Statement
by the United
States Securities and Exchange Commission (the “SEC”).
(vi)
“Subscriber”
has the
meaning set forth in the preamble to this Agreement.
(vii) “Termination
Date”
shall
mean the first anniversary of the Filing Date of the Registration
Statement.
(b) Capitalized
terms used herein and not otherwise defined herein shall have the respective
meanings
set forth in the Purchase Agreement.
2. Registration;
Termination.
(a)
Filing
of Registration
Statement.
The
Company shall prepare and file with the SEC, no later than
October 17, 2005 (the “Filing
Date”),
a
registration statement
on Form SB-2, or such other appropriate form, covering
the Registrable Securities and such other shares of Common Stock the Company
may, in its sole discretion, desire to include in such registration statement
(the “Registration
Statement”).
(b)
Termination.
If the
Registration Statement is
not
declared effective by the Termination
Date, then the commitment contained in
the
Purchase
Agreement and in this Agreement shall terminate.
3. Obligations
of the Company.
In
connection
with the
Registration Statement, the
Company shall do the following:
(a)
Subject
to Section
2(b),
use
all
diligent efforts to cause the Registration Statement
to become effective on the earlier of (a) ten (10) Trading Days after
notice from the SEC that the Company may request acceleration of effectiveness
with respect to the Registration Statement or
(b)
November 30, 2005 (the “Effectiveness
Date”),
and
once effective, to keep the Registration Statement
effective at all times (except during suspensions in the effectiveness of
the
Registration Statement in connection with post-effective amendments or as
otherwise required by the SEC) until the date that is one year after the
completion of most recent Closing
Date under the Purchase Agreement (the
“Registration
Period”);
(b) Prepare
and file with the SEC such amendments to
the
Registration Statement and such supplements the prospectus forming a part
thereof as
may be
necessary to keep the Registration Statement effective at all times during
the
applicable Registration
Period
(except
during suspensions in the effectiveness of the Registration Statement in
connection with post-effective amendments or as otherwise required by the
SEC)
and,
during the Registration Period, to comply with the provisions of the Securities
Act with respect to the disposition of the Registrable Securities;
2
(c)
Permit
a
single firm of counsel designated by Subscriber (initially,
______________, ATTN: ______________, Esq.) (the “Subscriber’s
Counsel”) to
review
the Registration Statement
(including any pre-effective amendments thereto) not less than one (1)
Trading Day prior to the filing of the Registration Statement or such
pre-effective amendment, as the case may be, with the SEC, and not file any
document in a form to which Subscriber’s Counsel reasonably objects, the cost of
which review will be the responsibility of Subscriber;
(d)
Notify
Subscriber and Subscriber’s Counsel and
(if
requested by any such person) confirm such notice in writing no later
than one (1) Business Day
following the day (or, in
the
case of (i)(A)
below,
not less than one (1) Business Day prior to the day):
(i)(A)
when
a prospectus or any prospectus supplement or post-effective amendment
to the Registration Statement is proposed to be filed, (B)
whenever the SEC notifies the Company
whether there will be a “review” of the Registration Statement, (C)
whenever the Company receives
(or a representative of the Company receives on its behalf) any oral or written
comments
from the SEC
in
respect of the Registration Statement,
and (D)
with respect to the Registration Statement or any post-effective amendment
thereto, when
the
same has been declared effective by the SEC; (ii) of any request by the SEC
or
any other Federal or state governmental authority
for amendments
or supplements to the Registration Statement or the prospectus or for additional
information;
(iii) of the issuance by the SEC of any stop order suspending the effectiveness
of the Registration Statement
or
the
initiation of any proceedings for
that
purpose; (iv)
of
the receipt by the Company of any notification with respect to
the
suspension of the qualification or exemption from qualification of any of
the
Registrable Securities for sale in
any
jurisdiction, or the initiation or threatening of any proceeding for such
purpose; and (v) of the occurrence of
any
event that
to
the knowledge of the Company makes any statement made in the Registration
Statement
or the prospectus
or any document incorporated or deemed to be incorporated therein by reference
untrue
in
any material
respect or that requires any revisions to the
Registration
Statement
or the prospectus forming a part thereof in order that
the
Registration Statement or such prospectus will not
contain any untrue statement of a material fact or omit to state any material
fact
required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they
were
made,
not
misleading;
(e)
Furnish
to Subscriber, (i) promptly after the same is prepared and publicly distributed,
filed
with
the
SEC, or received by the Company, one (1) copy of the
Registration
Statement, each preliminary
prospectus
and the prospectus, and each amendment or supplement thereto, and (ii) such
number of copies of
a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto,
and such other documents as the Subscriber may reasonably request, in order
to
facilitate the disposition of the Registrable Securities owned by the
Subscriber;
3
(f) Use
reasonable efforts to (i) register and/or qualify the Registrable Securities
under
such other securities or blue sky laws of such jurisdictions as the Subscriber
may
reasonably request and in which significant volumes of shares of Common Stock
are traded, (ii) prepare and file in those jurisdictions such amendments
(including post-effective amendments) and supplements
to any
registration statement and/or qualifications as may be necessary to maintain
the
effectiveness thereof
at all times during the Registration Period, (iii) take such other actions
as
may be necessary to maintain
the registration and/or qualification in effect at all times during the
Registration Period, and (iv) take all
other
actions reasonably necessary or advisable to qualify the Registrable Securities
for sale in such jurisdictions;
provided, however, that
the
Company shall not be required in connection therewith or as a condition
thereto to (A) qualify to do business in any jurisdiction where it would
not
otherwise be required to
qualify but for this Section
3(f),
(B)
subject itself to general taxation in any such jurisdiction, (C) file a
general
consent to service of process in any such jurisdiction, (D) provide any
undertakings that cause more
than
nominal expense or burden to the Company or (E) make any change in its charter
or by-laws or any
then
existing contracts, which in each case the Board of Directors of the Company
determines to be contrary
to the best interests of the Company and its stockholders;
(g) As
promptly as practicable after becoming aware of such event, notify the
Subscriber of the
happening of any event of which the Company has knowledge, as a result of
which
the prospectus included
in the Registration Statement, as then in effect, includes any 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, in the
light
of the circumstances under which they were made, not misleading (“Registration
Default”),
and
use
all
diligent efforts to promptly prepare a supplement to such prospectus or
amendment to the Registration Statement or other
appropriate filing with the SEC to correct such untrue statement or omission,
and any other necessary steps to cure the Registration Default, and deliver
a
number of copies of such supplement or amendment to the
Subscriber as the Subscriber may reasonably request;
(h) As
promptly as practicable after becoming aware of such event, notify the
Subscriber (or, in the event of an underwritten offering, the managing
underwriters) of the issuance by the SEC of any notice
of
effectiveness or
any stop
order or other suspension of the effectiveness of the Registration Statement
at the earliest possible time;
(i) Use
its
commercially reasonable efforts, if eligible, either to (i) cause all of
the
Registrable Securities
to be listed on a national securities exchange and on each additional
national securities exchange on which securities of the same class or series
issued by the Company
are then listed, if any, if the listing of the Registrable Securities is
then
permitted under the rules of
such
exchange, or (ii) secure designation of the Registrable Securities as
a
“national market system security”within
the meaning of Rule 11Aa2-1 under the Securities Exchange Act of 1934,
as
amended (the “Exchange
Act”),
and
the quotation of the Registrable Securities on the Nasdaq Capital Market;
or if,
despite the Company’s commercially reasonable efforts to satisfy the preceding
clause (i) or (ii);
provided, however, that
the
Subscriber
acknowledges that the Company does not currently meet the requirements for
listing on a national
securities exchange or the Nasdaq Capital Market and that nothing in this
Section
shall be construed to require the Company to pursue such qualification until
such time as the Company
satisfies such requirements for a period of not less than forty-five (45)
consecutive days; and
4
Notwithstanding
the foregoing, if at any time or from time to time after the date of
effectiveness of the Registration Statement, the Company notifies Subscriber
in
writing of the existence of a Potential Material Event (“Blackout
Notice”),
Subscriber
shall
not
offer or sell any Registrable Securities, or engage in any other transaction
involving or relating to the Registrable Securities, from the time of the
giving
of
notice
with respect to a Potential Material Event until Subscriber
receives
written notice from the Company that
such
Potential Material Event either has been disclosed to the public or no longer
constitutes a Potential
Material Event.
4. Obligations
of the Subscriber.
In
connection with the Registration,
the
Subscriber shall have the following obligations:
(a)
It
shall
be a condition precedent to the obligations of the Company relating to the
Registration
hereunder that the Subscriber
shall timely furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition
of the
Registrable Securities, as shall be reasonably
required to effect the Registration and shall timely execute such documents
in connection with the Registration as the Company may reasonably
request.
(b)
The
Subscriber agrees to cooperate
with the Company as reasonably requested by the Company in connection with
the
preparation and
filing of the Registration Statement hereunder.
(c)
The
Subscriber agrees that, upon receipt of any notice from
the
Company of the happening of
any
event of the kind described
in
Section
3(g)or 3(h),
the
Subscriber will immediately discontinue
disposition of Registrable Securities pursuant to the Registration Statement
until
the
Subscriber receives the copies of the supplemented or amended prospectus
contemplated
by Section
3(g)
or until
the Subscriber receives notification from the Company that that any stop
order
or suspension in the effectiveness of the Registration Statement has been
lifted, as applicable, and
if so
directed by the Company, the Subscriber shall deliver to the
Company (at the expense of the Company) or destroy (and deliver to the Company
a
certificate of destruction)
all copies in the Subscriber’s possession of the prospectus covering such
Registrable Securities
at the time of receipt of such notice.
5. Liquidated
Damages.
(a) In
the
event the Registration
Statement is not first declared effective on or before the Effectiveness
Date
(an “Event”),
the
Company shall incur liquidated damages in the amount of $50,000 per month
(pro
rata for any portion thereof) until the earlier of (i) the date on which
the
Registration Statement is first declared effective by the SEC or (ii) the
Termination Date. Any such liquidated damages shall be payable monthly in
arrears beginning on January 1, 2006 (the date any such liquidated damages
shall
become due, a “Payment
Date,”
and
the amount due on any such Payment Date, a “Payment”).
Any
Payments shall be made in cash or, at the Company’s option, in the greatest
whole number of shares of Common Stock obtained by dividing the applicable
Payment by the Liquidated Damages Price (any such shares the “Liquidated
Damages Shares”).
For
the purposes of this Section
5,
the
“Liquidated Damages Price” shall be a price per share of Common Stock equal to
the lesser of (i) $0.04 and (ii) the average Bid Price for the five Trading
Days
immediately preceding the applicable Payment Date.
5
(b) It
is
hereby acknowledged by the parties hereto that right to payment of liquidated
damages set forth in this Section
5
shall
supersede any and all similar rights arising from any other agreement of
the
Company relating to the subject matter hereto, including but not limited
to that
certain Agreement Relating to Certain Securities Issued by Xxxxxxxx
Technologies, Inc. and Technest Holdings, Inc., dated October 4,
2005.
6. Expenses
of Registration.
All
reasonable expenses incurred in connection with the Registration,
filings or qualifications pursuant to Section
3, including,
without limitation, all Registration, listing,
and qualifications fees, printers and accounting fees, the fees and
disbursements of counsel for the Company
shall be borne by the Company.
7. Indemnification.
After
Registrable Securities are included in a Registration Statement
under this Agreement:
(a)
To
the
extent permitted by law, the Company will indemnify and hold harmless, the
Subscriber,
the directors, if any, of such Subscriber, the officers, if any, of such
Subscriber, and each person, if any,
who
controls the Subscriber within the meaning of the Securities Act or the Exchange
Act (each, an “Indemnified
Person”),
against any losses, claims, damages, liabilities or expenses (joint or several)
incurred (collectively,
“Claims”)
to
which any of them may become subject under the Securities Act, the Exchange
Act
or otherwise, insofar as such Claims (or actions or proceedings, whether
commenced or threatened, in respect
thereof) arise out of or are based upon: (i) any untrue statement or alleged
untrue statement of a material
fact contained in the Registration Statement or any post-effective amendment
thereof or 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, (ii) any untrue statement or alleged untrue
statement of a material
fact contained in any preliminary prospectus if used prior to the effective
date
of the Registration
Statement, or contained in the final prospectus (as amended or supplemented,
if
the Company files
any
amendment thereof or supplement thereto with the SEC) or the omission or
alleged
omission to state
therein any material fact necessary to make the statements made therein,
in the
light of the circumstances
under which the statements therein were made, not misleading or (iii) any
violation or alleged violation
by the Company of the Securities Act, the Exchange Act, any state securities
law
or any rule or regulation
under the Securities Act, the Exchange Act or any state securities law (the
matters in the foregoing
clauses
(i) through (iii)
being
collectively referred to as “Violations”).
The
Company shall reimburse
the Subscriber, promptly as such expenses are incurred and are due and payable,
for any reasonable
legal fees or other reasonable expenses incurred by them in connection with
investigating or defending
any such Claim. Notwithstanding anything to the contrary contained herein,
the
indemnification agreement
contained in this Section
7(a)
shall
not (i) apply to any Claims arising out of or based upon (A) a Violation
which occurs in reliance upon and in conformity with information furnished
in
writing to the Company
by or on behalf of any Indemnified Person expressly for use in connection
with
the preparation of the
Registration Statement or any such amendment thereof or supplement thereto
or
(B) any
untrue statement or omission of a material fact in any prospectus that is
corrected in any subsequent prospectus or prospectus supplement that was
delivered to the Subscriber before the pertinent sale or sales by the
Subscriber;
or (ii)
with respect to any preliminary prospectus,
inure to the benefit of any person from whom the person asserting any such
Claim
purchased
the Registrable Securities that are the subject thereof (or to the benefit
of
any person controlling such
person).
The
Subscriber
will indemnify the Company, its officers, directors and agents (including
legal
counsel) against any
claims arising out of or based upon a Violation which occurs in reliance
upon
and in conformity with information furnished in writing to the Company, by
or on
behalf of such Subscriber, expressly for use in connection with the preparation
of the Registration Statement, subject to such limitations
and
conditions set forth
in
the previous sentence. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Indemnified Person
or Indemnified Party.
6
(b)
Promptly
after receipt by an Indemnified Person under this Section
7
of
notice of the commencement of any action (including any governmental action),
such Indemnified Person
shall, if a Claim
in
respect thereof is to be made against
any
indemnifying party under this Section 7,
deliver
to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right
to
participate in, and, to the extent the indemnifying party
so
desires, jointly with any other indemnifying
party similarly noticed, to assume control of the defense
thereof with counsel mutually satisfactory
to the indemnifying party and the Indemnified Person, as the case may be;
provided, however, that
an
Indemnified Person shall have the right to retain its own counsel with
the
reasonable fees and expenses
to be paid by the indemnifying party, if, in the reasonable opinion of
counsel retained by the indemnifying
party, the representation by such counsel of the Indemnified Person and the
indemnifying
party would
be
inappropriate due to actual or potential differing interests between such
Indemnified
Person and any
other
party represented by such counsel in such proceeding. In such event, the
Company
shall pay for only one separate legal counsel for the Subscriber, which counsel
shall be selected by the Subscriber (subject to the approval of the Company,
which shall not be unreasonably withheld). The
failure to deliver written notice
to
the indemnifying party within a reasonable time of the commencement of any
such
action shall
not
relieve
such indemnifying party of any liability to the Indemnified Person under
this
Section
7,
except
to the extent
that the indemnifying party is prejudiced in its ability to defend such
action. The indemnification required
by this Section
7
shall be
made by periodic payments of the amount thereof during the course of the
investigation or defense, as such expense, loss, damage or liability is incurred
and
is
due and payable.
8.
Contribution.
To
the
extent any indemnification by an indemnifying party is
prohibited
or limited by law, the indemnifying
party
agrees to make the maximum contribution with respect to any amounts for which
it
would otherwise be liable
under
Section
7
to the
fullest extent permitted by
law;
provided, however, that
(a)
no contribution shall be made with respect to Claims for which there is no
indemnification obligation under Section
7;
(b) no
seller of Registrable Securities guilty of fraudulent misrepresentation (within
the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any seller of Registrable Securities
who was not guilty of
such
fraudulent misrepresentation; and (c) contribution by any seller of Registrable
Securities shall be limited in amount to the net amount of proceeds received
by
such seller from the sale of such Registrable Securities.
9.
Reports
under Exchange Act.
With a
view to making available to the Subscriber
the
benefits
of Rule 144 promulgated under the Securities Act or any
other
similar rule or regulation of the SEC that
may
at any time permit the Investor to sell securities of the Company to the
public
without registration under the Securities Act (“Rule
144”),
the
Company agrees to use its reasonable best efforts to:
7
(a) make
and
keep public information
available, as those terms are understood and defined
in Rule 144;
(b) file
with
the SEC in a timely manner
all
reports and other documents required of the Company
Under the Exchange Act;
(c)
furnish
to the Subscriber
so
long
as the Subscriber
owns
Registrable Securities, promptly upon request, (i) a written statement by
the
Company that it has complied with the reporting requirements
of Rule 144, the Securities Act and the Exchange Act, (ii) a copy of the
most
recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company solely if unavailable
by Xxxxx, and (iii) such other information as may be reasonably requested
to
permit the Subscriber
to
sell
such securities pursuant to Rule 144; and
(d)
at
the
request of
the
Subscriber, give its Transfer Agent irrevocable
instructions (supported by an opinion of Company counsel, if required or
requested by the Transfer
Agent) to the effect that, upon the Transfer Agent’s receipt from such
Subscriber of:
(i)
a
certificate (a “Rule
144 Certificate”)
certifying (A) that such Subscriber
has
held
the shares of Registrable
Securities which the Subscriber
proposes
to sell (the “Securities Being Sold”) for a period of not less than (1) year and
(B) as to such other matters as may be appropriate in accordance with
Rule
144
under the Securities Act, and
(ii)
an
opinion of counsel acceptable to the Company (for which purposes it is agreed
that the Subscriber’s
counsel shall be deemed acceptable if such opinion is not given by Company’s
counsel) that,
based o n t he Rule 144 Certificate, Securities Being Sold may be sold pursuant
to the provisions
of Rule 144, even in the absence of an effective registration statement covering
the Securities Being Sold,
the
Transfer Agent is to effect the transfer of the Securities Being Sold and
issue
to the buyer(s) or transferee(s)
thereof one or more stock certificates representing the transferred Securities
Being Sold without
any restrictive legend and without recording any restrictions on the
transferability of such shares on the Transfer Agent’s books and records (except
to the extent any such legend or restriction results from facts other than
the
identity of the Subscriber,
as the
seller or transferor thereof, or the status, including any relevant legends
or
restrictions, of the shares of the Securities Being Sold while held by the
Subscriber).
If the
Transfer
Agent
requires any additional documentation at the time of the transfer, the Company
shall deliver or
cause
to be delivered all such reasonable additional documentation as may be necessary
to effectuate the issuance
of an unlegended certificate.
10. Miscellaneous.
(a)
Registered
Owners.
A
person or entity is deemed to be a holder of Registrable Securities whenever
such person or entity owns of record such Registrable
Securities. If the Company receives conflicting
instructions, notices or elections from two or more persons or entities with
respect to the same Registrable
Securities, the Company shall act upon the basis of instructions, notice
or
election received from
the
registered owner of such Registrable Securities.
8
(b)
Rights
Cumulative; Waivers.
The
rights of each of the parties under this Agreement are cumulative.
The rights of each of the parties hereunder shall not be capable of being
waived
or varied other than
by
an express waiver or variation in writing. Any failure to exercise or any
delay
in exercising any of such
rights shall not operate as a waiver or variation of that or any other such
right. Any defective or partial exercise
of any of such rights shall not preclude any other or further exercise of
that
or any other such tight. No
act or
course of conduct or negotiation on the part of any party shall in any way
preclude such party from
exercising any such right or constitute a suspension or any variation of
any
such right.
(c)
Benefit;
Successors Bound.
This
Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights, and benefits hereof,
shall
be binding upon, and shall inure to the
benefit of, the undersigned parties and their heirs, executors, administrators,
representatives, successors,
and permitted assigns.
(d)
Entire
Agreement.
This
Agreement contains the entire agreement between the parties with respect
to the subject matter hereof. There are no promises, agreements, conditions,
undertakings, understandings,
warranties, covenants or representations, oral or written, express or implied,
between them with
respect to this Agreement or the matters described in this Agreement, except
as
set forth in this Agreement
and in the other documentation relating to the transactions contemplated
by this
Agreement. Any
such
negotiations, promises, or understandings shall not be used to
interpret or constitute this Agreement.
(e)
Amendment.
Any
provision of this Agreement may be amended and the observance thereof
maybe waived (either generally or in a particular instance and either
retroactively or prospectively) only
with
the written consent of the Company and Subscriber. Any amendment or waiver
effected in accordance
with this Section
10
shall be
binding upon the Company and any subsequent transferees.
(f)
Severability.
Each
part of this Agreement is intended to be severable. In the event that any
provision
of this Agreement is found by any court or other authority
of
competent jurisdiction to be illegal or
unenforceable, such provision shall be severed or modified to the extent
necessary to render it enforceable
and as so severed or modified, this Agreement shall continue in full force
and
effect.
(g)
Notices.
Notices
required or permitted to be given hereunder
shall be
in writing and shall be
deemed
to be sufficiently given when personally delivered (by hand, by courier,
by
telephone line facsimile
transmission, receipt confirmed, or other means) or sent by certified mail,
return receipt requested, properly
addressed and with proper postage pre-paid (i) if to the Company, at its
executive office and (ii) if to
the
Subscriber, at the address set forth under its name in the Purchase Agreement,
with a copy to its designated
attorney, or at such other address as each such party furnishes by notice
given
in accordance with
this
Section
10(g),
and
shall
be effective, when personally delivered, upon receipt and, when so sent by
certified
mail, five (5) business days after deposit with the United States Postal
Service.
9
(h) Assignment.
Neither
party may assign any of the rights and obligations hereunder without the
express
written consent of the other party.
(i)
Governing
Law.
This
Agreement shall be governed by the interpreted in accordance with the laws
of
the State of New York without reference to its conflicts of laws
rules or
principles. Each of the parties
consents to the exclusive jurisdiction of the federal courts of the State
of New
York in connection with
any
dispute arising under this Agreement and hereby waives, to the maximum extent
permitted by law, any
objection, including any objection based on forum
non coveniens, to
the
bringing of any such proceeding in such jurisdictions.
(j)
Further
Assurances.
In
addition to the instruments and documents to be made, executed and
delivered pursuant to this Agreement, the parties hereto agree to make,
execute
and deliver or cause to be
made,
executed and delivered, to the requesting party such other instruments and
to
take such other actions
as the requesting party may reasonably require to carry out the terms of
this
Agreement and the transactions
contemplated hereby.
(k) Section
Headings.
The
Section headings in this Agreement are for reference purposes only and
shall
not affect in any way the meaning or interpretation of this
Agreement.
(l)
Construction.
Unless
the context otherwise requires, when used herein, the singular shall
be
deemed
to include the plural, the plural shall be deemed to include each of the
singular, and pronouns of one
or no
gender shall be deemed to include the equivalent pronoun of the other or
no
gender.
(m)
Execution
in Counterparts.
This
Agreement may be executed in two or more counterparts, each
of
which shall be deemed an original but all of which shall constitute one and
the
same agreement. This
Agreement, once executed by a party, may be delivered to the other party
hereto
by telephone line facsimile
transmission of a copy of this Agreement bearing the signature of the party
so
delivering this Agreement.
A facsimile transmission of this signed Agreement shall be legal and binding
on
all parties hereto.
10
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
by
their respective officers thereunto duly authorized as of the day and year
first
above written.
COMPANY:
XXXXXXXX
TECHNOLOGIES, INC.
By:
___________________________
Name:_________________________
Title:__________________________
SUBSCRIBER:
BRITTANY
CAPITAL MANAGEMENT LIMITED
By:
__________________________
Name:
Title:
Director
11
