EXHIBIT 10.6
AMENDED AND RESTATED RIGHTS AGREEMENT
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THIS AMENDED AND RESTATED RIGHTS AGREEMENT (the "Agreement") is entered into
effective as of the 29th day of August, 1995, by and among Enact Health
Management Systems, a California corporation (the "Company"), the undersigned
existing holders of Series A and Series B Preferred Stock of the Company (the
"Existing Preferred Shareholders"), the undersigned new holders of Series C
Preferred Stock (the "New Preferred Shareholders") and the undersigned holders
of Common Stock of the Company (the "Founders").
RECITALS
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A. Between April, 1993 and September, 1994 the Company entered into
Preferred Stock Purchase Agreements with the Existing Preferred Shareholders
which contained certain registration rights.
B. The Company, the Existing Preferred Shareholders and the Founders have
previously entered into an Amended and Restated Rights Agreement, dated
September 9, 1994 which granted certain registration and co-sale rights.
C. It is intended that the Company will grant the rights set forth below to
the New Preferred Shareholders.
D. It is further intended that the Existing Preferred Shareholders and the
Founders be granted the rights set forth below, and that the registration and
co-sale rights previously granted to the Existing Preferred Shareholders and the
Founders be replaced and superseded by the registration and co-sale rights set
forth below.
NOW, THEREFORE, in consideration of the foregoing and of the mutual promises
and covenants herein contained, the parties hereby agree as follows:
1. Registration Rights.
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1.1 Definitions. As used in this Section 1, the following terms shall
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have the following respective meanings:
(a) The terms "register," "registered" and "registration" refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "Securities Act"),
and the declaration or ordering of the effectiveness of such registration
statement.
(b) The term "Registrable Securities" means (i) any and all of the
common stock issuable upon conversion of the Series A Preferred Stock, the
Series B Preferred Stock, the Series C Preferred Stock, the Series D Preferred
Stock and the Convertible Note (the "Convertible Note") executed by the Company
in favor of ALZA Corporation dated August 30, 1996 (hereafter, the Series A
Preferred Stock, the Series B Preferred Stock, the Series C Preferred Stock and
the Series D Preferred Stock shall be referred to as the "Preferred Shares"),
and common stock held by the Founders, (ii) common stock issued in lieu of the
stock referred to in (i) above in any reorganization which has not been sold to
the public, or (iii) common stock issued with respect to the stock referred to
in (i) above as a result of a stock split, stock dividend, recapitalization or
the like, which has not been sold to the public.
(c) The terms "Holder" or "Holders" means any person or persons to
whom Registrable Securities were originally issued or qualifying transferees
under Section 1.11 hereof who hold Registrable Securities.
(d) The term "SEC" means the Securities and Exchange Commission.
1.2 Request for Registration.
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(a) If the Company shall receive no earlier than the first to occur
of six (6) months after the effective date of the Company's initial public
offering or three (3) years from August 29, 1995, the closing date of the Series
C Preferred Stock financing a written request from the Holders of a majority of
the Registrable Securities then outstanding, not including shares held by the
Founders, that the Company file a registration statement under the Securities
Act covering the registration of at least fifty percent (50%) of the Registrable
Securities then outstanding, then the Company shall, within ten (10) days of the
receipt thereof, give written notice of such request to all Holders and shall,
subject to the limitations of subsection 1.2(b), effect as soon as practicable,
and in any event within 90 days of the receipt of such request, the registration
under the Securities Act of all Registrable Securities which the Holders request
to be registered within twenty (20) days of the mailing of such notice by the
Company in accordance with Section 7 hereof.
(b) If the Holders initiating the registration request hereunder
("Initiating Holders") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as a part of their request made pursuant to this Section 1.2 and the Company
shall include such information in the written notice referred to in subsection
1.2(a). The underwriter will be selected by a majority in interest of the
Initiating Holders and shall be reasonably acceptable to the Company. In such
event, the right of any Holder to include his Registrable Securities in such
registration shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed by a majority in interest of the
Initiating Holders and such Holder) to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company) enter into an underwriting agreement in customary
form with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders. Notwithstanding any other
provision of this Section 1.2, if the underwriter advises the Initiating Holders
in writing that marketing factors require a limitation of the number of shares
to be underwritten, then the Initiating Holders shall so advise all Holders of
Registrable Securities which would otherwise be
underwritten pursuant hereto, and the number of shares of Registrable Securities
that may be included in the underwriting shall be allocated among all Holders
thereof, including the Initiating Holders, in proportion (as nearly as
practicable) to the amount of Registrable Securities of the Company owned by
each Holder, provided that in the event of such a cutback, the number of
Registrable Securities held by the Founders shall be included based on the
assumption that each Founder holds only one half the number of Registrable
Securities actually held by such Founder.
(c) The Company is obligated to effect only two (2) such
registrations pursuant to this Section 1.2.
(d) Notwithstanding the foregoing, if the Company shall furnish to
Holders requesting a registration statement pursuant to this Section 1.2, a
certificate signed by the President of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its shareholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a period of not more than 120 days after receipt of the request of the
Initiating Holders; provided, however, that the Company may not utilize this
right more than once in any twelve month period.
1.3 Company Registration.
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(a) Participation in Company Registration. If at any time or from
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time to time, the Company shall determine to register any of its securities, for
its own account or the account of any of its shareholders (other than a
registration relating solely to employee stock option or purchase plans, or a
registration on SEC Form S-4 relating solely to an SEC Rule 145 transaction, or
any successor to such forms, which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of Registrable Securities) the Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved
therein, all the Registrable Securities specified in a written request or
requests, made within fifteen (15) days after receipt of such written notice
from the Company, by any Holder or Holders, except as set forth in subsection
1.3(b) below.
(b) Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to subsection 1.3(a)(i). In such event the right of any Holder to
registration pursuant to subsection 1.3 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 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 underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this Section
1.3, the underwriter may limit the number of Registrable Securities to be
included in the registration and underwriting, or may exclude Registrable
Securities entirely from such registration and underwriting, provided that the
Common Stock that is not Registrable Securities (other than the Common Stock to
be sold by the Company) shall first be excluded from such registration and
underwriting. The Company shall so advise all Holders of Registrable Securities
which would otherwise be registered and underwritten pursuant hereto, and the
number of shares of Registrable Securities that may be included in the
registration and underwriting shall be allocated among Holders requesting
registration in proportion, as nearly as practicable, to the respective amounts
of Registrable Securities held by each of such Holders as of the date of the
notice pursuant to subsection 1.3(a)(i) above. If any Holder disapproves of the
terms of any such underwriting, he may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any Registrable Securities excluded
or withdrawn from such underwriting shall be withdrawn from such registration.
1.4 Form S-3. The Company shall use its best efforts to qualify for
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registration on SEC Form S-3 or its successor form. After the Company has
qualified for the use of Form S-3, Holders of Registrable Securities shall have
the right to request an unlimited number of registrations on Form S-3 (such
requests shall be in writing and shall state the number of shares of Registrable
Securities to be disposed of and the intended method of disposition of Shares by
such Holders), subject only to the following:
(a) The Company shall not be required to effect a registration
pursuant to this Section 1.4 within one hundred eighty (180) days of the
effective date of any other registration of the Company's securities.
(b) The Company shall not be required to effect a registration
pursuant to this Section 1.4 unless the Holder or Holders requesting
registration propose to dispose of shares of Registrable Securities having an
aggregate disposition price (before deduction of underwriting discounts and
expenses of sale) of at least One Million Dollars ($1,000,000).
(c) If the Company shall furnish to the Holders a certificate
signed by the President of the Company stating that in the good faith judgment
of the Board of Directors of the Company it would be seriously detrimental to
the Company and its shareholders for such Form S-3 registration to be effected
at such time, the Company shall have the right to defer the filing of the Form
S-3 registration statement for a period of not more than 120 days after receipt
of the request of the Holders under this Section 1.4; provided, however, that
the Company shall not utilize this right more than once in any twelve (12) month
period.
The Company shall give written notice to all Holders of Registrable Securities
of the receipt of a request for registration pursuant to this Section 1.4 and
shall provide a reasonable opportunity for other Holders to participate in the
registration, provided that if the registration is for an underwritten offering,
the terms of subsection 1.2(b) shall apply to all participants in such offering.
Subject to the foregoing, the Company will use its best efforts to effect
promptly the
registration of all shares of Registrable Securities on Form S-3 to the extent
requested by the Holder or Holders thereof for purposes of disposition.
1.5 Lock-Up Provision. Upon receipt of a written request by the
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Company or by its underwriters, the Holders agree not to sell, sell short, grant
an option to buy, or otherwise dispose of their shares of common stock issued or
issuable upon conversion of the Preferred Shares (except for any such shares
included in the registration) for the period from the date of receipt of such
request but not prior to the filing of the initial registration statement for
the Company's securities to one hundred eighty (180) days after the date of its
effectiveness, provided that the Company's officers, directors and key employees
enter into similar agreements not to dispose of their shares during the same
time period. Notwithstanding the foregoing, nothing herein shall prevent any
Holder that is a partnership from making a distribution of Registrable
Securities to the partners thereof that is otherwise in compliance with
applicable securities laws. The restriction of this Section 1.5 shall not apply
after the second public offering of the Company's securities and shall lapse
after the initial public offering as to any Holder at the time such Holder holds
less than 1% of the outstanding shares of the Company.
1.6 Expenses of Registration. All expenses incurred in connection
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with any registration, qualification or compliance pursuant to this Section 1,
including without limitation, all registration, filing and qualification fees,
printing expenses, fees and disbursements of counsel for the Company and
expenses of any special audits incidental to or required by such registration,
shall be borne by the Company except as follows:
(a) The Company shall not be required to pay fees or
disbursements of legal counsel of the Holders other than one special counsel to
represent all Holders to be selected by a majority of the Holders participating
in the registration .
(b) The Company shall not be required to pay underwriters' fees,
discounts or commissions relating to Registrable Securities.
1.7 Registration Procedures. In the case of each registration,
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qualification or compliance effected by the Company pursuant to this Agreement,
the Company will keep each Holder participating therein advised in writing as to
the initiation of each registration, qualification and compliance and as to the
completion thereof. At its expense the Company will:
(a) Keep such registration, qualification or compliance pursuant
to Sections 1.2, 1.3 or 1.4 effective for a period of one hundred twenty (120)
days or until the Holder or Holders have completed the distribution described in
the registration statement relating thereto, whichever first occurs.
(b) Furnish such number of prospectuses, including a preliminary
prospectus, in conformity with the Securities Act, and other documents incident
thereto as a Holder from time to time may reasonably request.
(c) Prepare and file with the SEC such amendments and supplements
to the registration statement, and the prospectus used in connection with such
registration statement, as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(d) Use its best efforts to register and qualify the securities
covered by the registration statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided 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.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligation under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of 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 the light of the circumstances then
existing.
(g) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant to such registration statement and a CUSIP number
for all such Registrable Securities, in each case not later than the effective
date of such registration.
1.8 Indemnification.
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(a) The Company will indemnify each Holder of Registrable
Securities, each of its officers, directors and partners, and each person
controlling or under common control with such Holder, with respect to which such
registration, qualification or compliance has been effected pursuant to this
Section 1, and each underwriter, if any, and each person who controls any
underwriter of the Registrable Securities held by or issuable to such Holder,
against all claims, losses, expenses, damages and liabilities (or actions in
respect thereto) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus, offering
circular or other document (including any related registration statement,
notification or the like) incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act or any state securities law
applicable to the Company and relating to action or inaction required of the
Company in connection with any such registration, qualification or compliance,
and will reimburse each such Holder, each of its officers, directors and
partners, and each person controlling such Holder, each such underwriter and
each person who controls any such underwriter, for any reasonable legal and any
other expenses incurred in connection with investigating, defending or settling
any such claim, loss, damage, liability or action, provided that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage or liability arises out of or is based on any untrue statement or
omission based upon written information furnished to the Company by an
instrument duly executed by such Holder or underwriter specifically for use
therein.
(b) Each Holder will, if Registrable Securities held by or
issuable to such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company within the meaning of the Securities Act, and each other
such Holder, each of its officers, directors and partners and each person
controlling such Holder, against all claims, losses, expenses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company, such Holders, such directors,
officers, partners, persons or underwriters for any reasonable legal or any
other expenses incurred in connection with investigating, defending or settling
any such claim, loss, damage, liability or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder specifically for use therein; provided, however,
the total amount for which any Holder shall be liable under this subsection
1.8(b) shall not in any event exceed the aggregate proceeds received by such
Holder from the sale of Registrable Securities held by such Holder in such
registration.
(c) Each party entitled to indemnification under this Section 1.8
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations hereunder, unless such failure resulted in actual detriment to
the Indemnifying Party. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
(d) If the indemnification provided for in this Section 1.8 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any claim, loss, expense, damage or liability referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such claim, loss, expense, damage or liability
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions that resulted in such claim, loss,
expense, damage or liability as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission.
1.9 Information by Holder. The Holder or Holders of Registrable
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Securities included in any registration shall promptly furnish to the Company
such information regarding such Holder or Holders and the distribution proposed
by such Holder or Holders as the Company may reasonably request in writing and
as shall be required in connection with any registration, qualification or
compliance referred to herein.
1.10 Limitations on Registration Rights Granted to Other Securities.
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From and after the date of this Agreement, the Company shall not enter into any
agreement with any holder or prospective holder of any securities of the Company
providing for the granting to such holder of any registration or co-sale rights,
except that, with the consent of the Holders of 66 2/3% of the Registrable
Securities then outstanding, additional holders may be added as parties to this
Agreement with regard to any or all securities of the Company held by them. Any
such additional parties shall execute a counterpart of this Agreement, and upon
execution by such additional parties and by the Company, shall be considered a
Holder for all purposes of this Agreement.
1.11 Rule 144 Reporting. With a view to making available to Holders
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the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees at all times after ninety (90) days after the effective date of
the first registration filed by the Company for an offering of its securities to
the general public to:
(a) Make and keep public information available, as those terms
are understood and defined in SEC Rule 144;
(b) Use its best efforts to file with the SEC in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Securities Exchange Act of 1934 as amended (the "Exchange Act"); and
(c) So long as a Holder owns any Registrable Securities, to
furnish to such Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of said Rule 144 (at any
time after ninety (90) days after the effective date of the first registration
statement filed by the Company for an offering of its securities to the general
public), and of the Securities Act and the Exchange Act (at any time after it
has become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
so filed by the Company as the Holder may reasonably request in complying with
any rule or regulation of the SEC allowing the Holder to sell any such
securities without registration.
1.12 Transfer of Registration Rights. Holders' rights to cause the
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Company to register their securities and keep information available, granted to
them by the Company under Sections 1.2, 1.3, 1.4 and 1.10, may be assigned to a
transferee or assignee of not less than 50,000 shares of a Holder's Registrable
Securities not sold to the public, provided that the Company is given written
notice by such Holder at the time of or within a reasonable time after said
transfer, stating the name and address of said transferee or assignee and
identifying the securities with respect to which such registration rights are
being assigned, and such transferee has agreed to comply with the obligations of
this Section 1.
1.13 Waivers and Amendments. With the written consent of the record
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or beneficial holders of more than 66 2/3% of the Registrable Securities, the
obligations of the Company and the rights of the holders of the Registrable
Securities under Section 1 (other than Subsection 1.4) may be waived (either
generally or in a particular instance, either retroactively or prospectively,
and either for a specified period of time or indefinitely), and with the same
consent the Company, when authorized by resolution of its Board of Directors,
may enter into a supplementary agreement for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
Section 1; provided, however, that no such modification, amendment or waiver
shall reduce the aforesaid percentage of Registrable Securities without the
consent of all of the Holders of the Registrable Securities. Upon the
effectuation of each such waiver, consent, agreement of amendment or
modification, the Company shall promptly give written notice thereof to the
record holders of the Registrable Securities who have not previously consented
thereto in writing. Except to the extent provided in this Section 1.13, Section
1 may be
changed, waived, discharged or terminated only by a statement in writing signed
by the party against which enforcement of the change, waiver, discharge or
termination is sought.
1.14 Termination. The rights granted in this Section 1 shall not
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apply as to each Holder, on a Holder by Holder basis, in any period in which a
Holder may sell all Registrable Securities then owned by the Holder pursuant to
the provisions of Rule 144, other than Rule 144(k).
2. Co-Sale Rights. None of the Holders will sell, transfer or exchange
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("transfer") any shares of the Company's stock for consideration to any person
who such Holder knows (based on a written notice provided to such Holder by the
Company) will hold, after such sale, 5% or more of the outstanding stock of the
Company (calculated on a fully-diluted basis) without first complying with this
Section 2. In the event of any such transfer, the Holder proposing to make such
transfer shall give the other Holders (the "Other Holders") the opportunity to
participate pro rata in such transfer based on such Holder's and the Other
Holders' relative total percentage ownership of the Company. A Holder desiring
to sell shares shall give written notice to each Holder of the terms of the
proposed transfer. Each Other Holder shall give written notice to such Holder of
the Other Holder's election to participate in such transfer in accordance with
the proposed terms within twenty-one (21) days after receipt of the notice. If
no other Holders elect to participate, such Holder shall be entitled to sell the
shares specified in, and according to the terms of, the notice within ninety
(90) days from the date of the sending of the notice. The right of co-sale set
forth in this Section 2 shall terminate immediately prior to the first sale of
the Company's common stock in a public offering transaction that, along with any
prior public offerings of the Company's common stock, results in aggregate
proceeds to the Company and/or any selling shareholders of at least $5,000,000.
In the event of any conflict between the rights set forth herein and any rights
of first refusal held by the Company, the Company's right shall take precedence
over the rights herein, and the rights shall apply only to the extent the
Company does not exercise its rights.
3. Amendment. Except as provided in Section 1.12, any modification,
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amendment, or waiver of this Agreement or any provision hereof shall be in
writing and executed by Holders (as defined in Section 1.1 hereof) of not less
than 66 2/3% of the Registrable Securities (as defined in Section 1.1 hereof);
provided, however, that no such modification, amendment or waiver shall reduce
the aforesaid percentage of Registrable Securities without the consent of all of
the Holders of the Registrable Securities.
4. Governing Law. This Agreement shall be governed in all respects by
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the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California.
5. Successors and Assigns. Except as otherwise expressly provided herein,
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the provisions hereof shall inure to the benefit of, and be binding upon the
successors, assigns, heirs, executors and administrators of the parties hereto.
6. Entire Agreement; Termination of Prior Rights Agreement. This
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Agreement constitutes the full and entire understanding and agreement between
the parties with regard to the subject matter hereof. The registration rights
previously granted to the Existing Preferred Shareholders and the Founders
pursuant to the Amended and Restated Rights Agreement dated September 9, 1994
are hereby terminated and shall be of no further force and effect.
7. Notices, etc. All notices and other communications required or
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permitted hereunder shall be in writing and shall either be delivered personally
or by telegram or be mailed first class mail, postage prepaid, addressed (a) if
to a Holder, at such person's address set forth in the records of the Company or
at such other address as such person shall have furnished to the Company in
writing, or (b) if to the Company: Enact Health Management Systems, 000
Xxxxxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, Attention: Mr. Xxxx Xxxxxxx or at
such other address as the Company shall have furnished to the parties in
writing. All notices shall be deemed effective (a) when received, if personally
delivered or sent by telegram, or (b) three days after deposit in the mail, if
mailed as set forth above.
8. Separability. In case any provision of this Agreement shall be
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invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
9. Titles and Subtitles. The titles of the sections and subsections
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of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
THE FOUNDERS THE COMPANY
Xxxx Xxxxxxx By /s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx, President
Xxxxx Xxxxxxxx
Xxxxxxxx Xxxxx
EXISTING PREFERRED NEW PREFERRED SHAREHOLDERS
SHAREHOLDERS
Print Name Print Name
Signature Signature
Address Address
