Exhibit 10.8
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into as of May 8, 1996, by and between Banco Inversion, S.A., a Spanish
corporation ("Banco"), and ReSeal Food Dispensing Systems, Inc., a Delaware
corporation (the "Company").
W I T N E S S E T H:
In consideration of the premises and of the mutual covenants and
obligations hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
(b) "Common Stock" means the common stock, par value $.001, of the
Company.
(c) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to
time.
(d) "Holders" means holders of Other Shares.
(e) "Other Shares" means shares of Common Stock of the Company
(including shares of Common Stock issued or issuable upon conversion of
warrants or options of the Company) having registration rights, other than
the Shares.
(f) "Participating Rightsholder" means any Rightsholder requesting
inclusion of his Shares in a Registration, pursuant to Section 2(b).
(g) "Registration" refers to a registration effected by preparing and
filing a registration statement or statements or similar documents as shall
comply with the Securities Act and the declaration or ordering of
effectiveness of such registration statement or document by the Commission.
(h) "Registration Expenses" means all expenses incurred in effecting
any Registration pursuant to this Agreement, including, without limitation,
all registration, qualification and filing fees, printing expenses, escrow
fees, fees and disbursements of counsel for the Company, blue sky fees and
expenses, and expenses of any regular or special audits incident to or
required by any such Registration, but shall not include Selling Expenses
and fees and disbursements of counsel for the Holders.
(i) "Registration Notice" means a notice delivered by the Company to
the Rightsholders pursuant to Section 2(a).
(j) "Rightsholders" means Banco and each subsequent transferee of the
Shares from Banco or another Rightsholder.
(k) "Securities Act" means the Securities Act of 1933, as amended, or
any similar successor federal statute and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
(l) "Selling Expenses" means all underwriting discounts and selling
commissions applicable to the sale of Shares and all fees and disbursements
of counsel for the Rightsholders.
(m) "Shares" means that certain number of shares of Common Stock
acquired by Banco (and its designated nominees) from RIC.
2. Registration of Shares. Upon the Company's determination to register any
of its shares of Common Stock either for its own account or the account of any
Holder (not including the initial public offering of the Common Stock (the
"Public Offering") or the registration of any of the Bridge Units issued by the
Company in connection with certain loans it received (the "Bridge Units") and
the underlying securities of such Bridge Units), the Company will: (a) promptly
give written notice thereof to each of the Rightsholders (a "Registration
Notice"); and (b) use its best efforts to effect the Registration of such shares
of Common Stock and include in such Registration (and any qualification under
blue sky laws or other compliance), except as set forth in Sections 4 and 5, all
the Shares specified by the Participating Rightsholders in written requests to
the Company given within twenty (20) days after the Registration Notice is
received. Such written requests may specify for inclusion in such Registration
all or only a portion of the Shares held by a Rightsholder.
3. Underwriting. If the Registration referred to in a Registration Notice
is for a registered public offering involving an underwriting, the Company shall
so advise the Rightsholders in the Registration Notice. In such event, each of
the Participating Rightsholders' respective rights to registration pursuant to
Section 2 shall be conditioned upon such Participating Rightsholder's
participation in such underwriting and the inclusion of his or her Shares in the
underwriting to the extent provided herein. Each Participating Rightsholder
shall, together with the Company and the Holders intending to offer Other
Shares, enter into an underwriting agreement in customary form with the
representative of the underwriter or underwriters selected by the Company (the
"Representative").
4. Limitation on Number of Shares.
(a) Notwithstanding any other provision hereof, if the Representative
advises the Company in writing that marketing factors require a limitation
on the number of shares to be underwritten, the Representative may (subject
to the limitations set forth below) limit the number of Shares to be
included in the Registration and underwriting. The Company shall so advise
each of the Participating Rightsholders, and the number of
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shares of Common Stock that are entitled to be included in the Registration
and underwriting shall be allocated to the Company, the Holders and the
Participating Rightsholders in accordance with Section 5. Subsequent to any
such reduction, if any Participating Rightsholder does not agree to the
terms of any such underwriting, such Participating Rightsholder shall be
excluded therefrom by written notice from the Company or the underwriter.
Any Shares excluded or withdrawn from such underwriting shall be withdrawn
from such Registration.
(b) If Shares are so withdrawn from the Registration, the Company
shall then offer to all Participating Rightsholders who have not so
withdrawn from the registration or whose number of Shares included in the
Registration have been reduced as a result of marketing factors, the right
to include additional Shares in an aggregate amount equal to the number of
shares so withdrawn, with such shares to be allocated among the persons
requesting additional inclusion in accordance with Section 5 hereof.
5. Allocation of Shares. In any circumstance in which the Participating
Rightsholders and the other Holders want to register Shares and Other Shares and
the aggregate number of such Shares and Other Shares cannot be so included as a
result of limitations imposed by the underwriters, the number of Shares and
Other Shares that shall be included shall be allocated among the Participating
Rightsholders and the other Holders pro rata on the basis of the aggregate
number of Shares and Other Shares. The Company shall not limit the number of
Shares to be included in a Registration, in order to include in such
Registration shares held by stockholders with no registration rights, in an
offering in which the number of Shares included in such offering is limited in
any way or allocated pursuant to Sections 4 or 5.
6. Restrictions on Public Sales by Rightsholders. To the extent not
inconsistent with applicable law, each Rightsholder that is timely notified in
writing by the Company or the Representative, shall not effect any public sale
or distribution (including a sale pursuant to Rule 144) of any issue being
registered in an underwritten offering, any securities of the Company similar to
any such issue or any securities of the Company convertible into or exchangeable
or exercisable for any such issue, during the 10-day period prior to, and during
the 90-day period beginning on, the effective date of the applicable
Registration Statement, except as part of such Registration.
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7. Company Obligations. In effecting the Registration described in Section
2(b), the Company shall:
(a) prepare and file with the Commission a registration statement on
such form as the Company may determine in its sole discretion (provided
that such form may be used by the Company in accordance with the Securities
Act) (such registration statement and all amendments and supplements
thereto are referred to herein as the "Registration Statement") with
respect to the Shares and thereafter use its best efforts to cause the
Registration Statement to become effective as promptly as possible;
(b) furnish promptly to each Participating Rightsholder such number of
copies of the prospectus used in connection with the Registration
Statement, including a preliminary prospectus, and all amendments and
supplements thereto (collectively, the "Prospectus"), in conformity with
the requirements of the Securities Act, and such other documents as each
Participating Rightsholder may reasonably request in order to facilitate
the disposition of its Shares;
(c) use its best efforts to register or qualify the Shares under the
securities or "blue sky" laws of such jurisdictions as shall be reasonably
requested by each Participating Rightsholder and to keep such registration
or qualification in effect for as long as the Registration Statement
remains in effect; provided, however, that the Company shall not be
required in connection therewith or as a condition thereto to (i) qualify
generally to do business or to file a general consent to service of process
in any such jurisdictions, (ii) provide any undertaking as to which the
Board of Directors of the Company shall reasonably object or (iii) make any
change in its charter or bylaws;
(d) promptly notify each of the Participating Rightsholders, at any
time when a Prospectus is required to be delivered under the Securities
Act, (i) of the happening of any event as a result of which the Prospectus,
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 or (ii) of the Company's reasonable determination that a
post-effective amendment to the Registration Statement is appropriate; and
the Company shall promptly amend or supplement the Registration Statement
and Prospectus to correct any such untrue statement or omission so that, as
thereafter delivered by any Participating Rightsholder to the purchasers of
such securities, the Registration Statement and Prospectus as so
supplemented or amended, shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made; and promptly furnish to
each Participating Rightsholder a reasonable number of copies of the
supplement to or the amendment of the Prospectus as may be necessary;
(e) promptly notify the Participating Rightsholders of (i) when the
Registration Statement, or any post-effective amendments thereto, shall
have become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed; (ii) the receipt of any comments from the
Commission concerning the Registration Statement and the Company's
responses thereto; (iii) the issuance by the Commission of any stop order
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suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; or (iv) the issuance by any
state securities commission or other regulatory authority of any order
suspending the qualification or the exemption from qualification of any of
the Shares under state securities or Blue Sky laws or the initiation of any
proceeding for that purpose. The Company will use its commercially
reasonable efforts to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest
possible time;
(f) permit a single firm of counsel designated as selling
stockholder's counsel by Banco to review the Registration Statement and
Prospectus and all amendments and supplements thereto for a period of three
(3) business days prior to the filing of such documents with the
Commission; and
(g) use its best efforts to cause the Shares to be, and to continue to
be, listed on a recognized automated trading market or a securities
exchange.
8. Termination of Registration Rights. Each Rightsholder's right to
registration of the Shares or inclusion of the Shares in any Registration
pursuant to this Agreement shall terminate upon the earlier of: (a) such time as
all (but not less than all) of such Rightsholder's Shares have been either
registered pursuant to this Agreement or sold, or (b) such time as each of such
Shares may be sold pursuant to Rule 144(k).
9. Representations of the Company. The Company hereby represents and
warrants as of the date hereof that:
(a) Organization; Good Standing. The Company is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and each jurisdiction in which it operates
its business.
(b) Capitalization. The Company has a total authorized capitalization
consisting of 40,000,000 shares of Common Stock and 2,000,000 shares of
Preferred Stock. As of the date hereof, there are (i) 6,325,000 shares of
Common Stock issued and outstanding, (ii) promissory notes issued by the
Company that are convertible into an aggregate of 2,400,000 shares of
Common Stock (the "Convertible Notes"), and (iii) bridge units consisting
of an aggregate of 1,575,000 shares of Common Stock and warrants to
purchase an aggregate of 1,575,000 additional shares of Common Stock (the
"Bridge Units"). As of the date hereof, there are no shares of Preferred
Stock issued and outstanding. There are no other classes of capital stock
of the Company. All of the shares of Common Stock have the same rights
and/or preferences with respect to voting and dividends. There are no
agreements in effect which (i) affect the voting rights of any shares of
Common Stock, (ii) restrict the transfer of shares of Common Stock, other
than those imposed by federal and state securities laws, or (iii) provide
the holder of any shares of Common Stock any rights with respect to the
sale or registration of any of such shares, other than (A) the Convertible
Notes, (B) the Bridge Units and its underlying securities, (C) this
Agreement, (D) the Settlement Agreement, dated October 10, 1995, among the
Company and the other parties listed therein, and (E) the Subscription
Agreements entered into in connection with the $1,050,000 private placement
of Common Stock.
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(c) Authorization; Enforceability. The Company has the full right,
power and authority (i) to enter into, execute and deliver this Agreement,
and (ii) to perform all of its obligations hereunder. This Agreement and
all other agreements, certificates, documents and instruments contemplated
hereby, to which the Company is a party, will be legal, valid and binding
obligations of the Company, and will be enforceable in accordance with
their respective terms.
(d) No Violations of Law or Order. The execution, delivery and
performance of this Agreement by the Company will not violate or contravene
(i) any agreements to which it is a party, (ii) any orders, judgments or
decrees or (iii) to the Company's knowledge, any laws or regulations.
(e) No Litigation. There is no litigation pending, or to the knowledge
of the Company threatened, against the Company.
(f) Financial Statements. The Company will deliver to Banco copies of
all audited financial statements prepared by or for the Company upon
availability.
(g) Underwriting Commitment. The Company has obtained a letter of
intent from Xxxxxxxx Oakmont, Inc. ("Underwriter") to underwrite the Public
Offering (or any class of stock of the Company of which Banco will own
shares). The Company has provided to Banco copies of all letters of intent
and agreements which directly relate to the Public Offering. Such
commitment has not been withdrawn by Underwriter as of the date hereof.
10. Covenants of the Company. The Company covenants and agrees that it will
use its best efforts to carry out each of its duties and obligations under this
Agreement and to conduct the Public Offering.
11. Financial Information. The Company covenants and agrees to furnish the
following reports to each Rightsholder:
(a) as soon as practicable after the end of the each fiscal year of
the Company, and in any event within ninety (90) days thereafter, a
consolidated balance sheet of the Company and its subsidiaries, if any, as
at the end of such fiscal year, and consolidated statements of income and
cash flows of the Company and its subsidiaries, if any, for such year,
prepared in accordance with generally accepted accounting principles
consistently applied and setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail and
certified by independent public accountants of recognized national standing
selected by the Company, and a capitalization summary setting forth in
reasonable detail all issued and outstanding securities of the Company
including all warrants, options and rights with respect to same, as of the
end of such fiscal year;
(b) as soon as practicable after the end of the first, second, and
third quarterly accounting periods in each fiscal year of the Company, and
in any event within forty-five (45) days thereafter, a consolidated balance
sheet of the Company and its subsidiaries, if any, as at the end of each
such quarterly period, and consolidated statements of income
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and cash flows of the Company and its subsidiaries, if any, for such period
and for the current fiscal year to date, prepared in accordance with
generally accepted accounting principles consistently applied and setting
forth in comparative form the figures for the corresponding periods of the
previous fiscal year, subject to changes resulting from normal year-end
audit adjustments, all in reasonable detail, except that such financial
statements need not contain the notes required by generally accepted
accounting principles; and
(c) from the date the Company becomes subject to the reporting
requirements of the Exchange Act, and in lieu of the financial information
required pursuant to Sections 11(a) and (b), copies of its annual reports
on Form 10-K and its quarterly reports on Form 10-Q, respectively.
12. Restrictions on the Participating Rightsholders. In the event the
Company gives a notice to the Participating Rightsholders pursuant to subsection
7(d) or subsection 7(e)(iii) or (iv) hereof (any such notice, a "Discontinuance
Notice"), each Participating Rightsholder will forthwith discontinue disposition
of registered Shares pursuant to the Registration Statement until, as
applicable, (i) each Participating Rightsholder receives from the Company the
supplemented or amended Prospectus contemplated by subsection 7(d) hereof,
including any additional or supplemental filings that are incorporated by
reference in the supplemented or amended Prospectus, or (ii) each Participating
Rightsholder is advised in writing by the Company that any stop order has been
lifted. If so directed by the Company, each Participating Rightsholder will
deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Participating Rightsholder's possession, of
the Prospectus covering such registered Shares that was current at the time the
Participating Rightsholders received the Discontinuance Notice.
13. Other Securities. A Registration Statement filed pursuant to this
Agreement may include other securities of the Company with respect to which
registration rights have been or may be granted and may include securities of
the Company being sold for its own account, and nothing contained in this
Agreement shall be construed as limiting or restricting the Company's ability to
file additional registration statements under the Securities Act to register
securities for selling stockholders or for its own account.
14. Changes in Common Stock. If, and as often as, there are any changes in
the Common Stock by way of stock split, stock dividend, combination or
reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Shares as so changed.
15. Furnishing Information. Each Participating Rightsholder shall furnish
to the Company at such time as the Company shall reasonably request, such
information regarding such Participating Rightsholder, its Shares, and the
intended method of disposition of such securities as shall be reasonably
required to effect the registration of the Shares. Each Participating
Rightsholder shall execute such documents in connection with such registration
as the Company may reasonably request.
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16. Expenses of Registration. All Registration Expenses incurred in
connection with this Agreement shall be borne by the Company.
17. Indemnification.
(a) The Company will indemnify each Rightsholder, each of its
officers, directors and partners, legal counsel, and accountants, as
applicable, and each person controlling such Rightsholder within the
meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, and liabilities (or actions, proceedings, or settlements in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any Registration Statement,
Prospectus, offering circular, or other document, 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 the Securities Act or any rule or
regulation thereunder 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 such Rightsholder, each of
its officers, directors, partners, legal counsel, and accountants and each
person controlling such Rightsholder, for any legal and any other expenses
reasonably incurred in connection with investigating and 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, liability, or expense arises out of or is based on any
untrue statement or omission based upon written information furnished to
the Company by such Rightsholder and stated to be specifically for use
therein. It is agreed that the indemnity agreement contained in this
Section 17 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably
withheld.)
(b) Each Rightsholder will, if Shares are included in the securities
as to which such registration, qualification, or compliance is being
effected, indemnify the Company, each of its directors, officers, partners,
legal counsel, and accountants, as applicable, each person who controls the
Company within the meaning of Section 15 of the Securities Act, each other
Rightsholder, and each of their officers, directors, and partners, as
applicable, and each person controlling such Rightsholders, against all
claims, losses, 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 and such Rightsholder, directors, officers,
partners, legal counsel, accountants, or control persons for any legal or
any other expenses reasonably incurred in connection with investigating or
defending 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 such Rightsholder and stated to be specifically for use therein,
provided, however, that the obligations of such
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Rightsholder hereunder shall not apply to amounts paid in settlement of any
such claims, losses, damages, or liabilities (or actions in respect
thereof) if such settlement is effected without the consent of such
Rightsholder (which consent shall not be unreasonably withheld).
(c) Each party entitled to indemnification under this Section 17 (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
such claim or any litigation resulting therefrom, provided that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, 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
under this Section 17, to the extent such failure is not prejudicial. 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 that 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. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 17 is held by
a court of competent jurisdiction to be unavailable to an Indemnified Party
with respect to any loss, liability, claim, damage, or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party hereunder, shall contribute to the amount paid or payable
by such Indemnified Party as a result of such loss, liability, claim,
damage, or expense, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and the
Indemnified Party on the other in connection with the statements or
omissions that resulted in such loss, liability, claim, damage, or expense
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 or alleged 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.
(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement
entered into in connection with the underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
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18. Transfer or Assignment of Registration Rights. The rights of each
Rightsholder granted under this Agreement to cause the Company to register the
Shares may be transferred or assigned by such Rightsholder to a transferee or
assignee of his or her Shares, provided, that the transferee or assignee of such
rights assumes the obligations of such Rightsholder under this Agreement and,
provided further, that the Company is given written notice at the time of or
within a reasonable time after said transfer or assignment, stating the name and
address of the transferee or assignee and identifying the Shares with respect to
which such registration rights are being transferred or assigned. If a
Rightsholder (other than Banco) owns less than 100,000 Shares (as presently
constituted and subject to subsequent adjustments for stock splits, stock
dividends, reorganizations, reclassifications and the like), such Rightsholder
may only exercise the registration rights provided in this Agreement through
Banco as its agent.
19. Notices. Any notice required or permitted under this Agreement shall be
given in writing and shall be deemed effectively given and received upon
personal delivery to the party to be notified, on the next business day
following delivery to a nationally recognized overnight courier service, upon
the transmission of a facsimile or five days after deposit with the United
States Post Office, by registered or certified mail, postage prepaid, and
addressed to the party to be notified at the address or facsimile number
indicated below for such party, or at such other address as such party may
designate upon written notice to the other parties (except that notice of change
of address shall be deemed given upon receipt).
If to the Company:
ReSeal Food Dispensing Systems, Inc.
000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
Attention: Xxxxx Xxxxxxx
With a copy to:
Kramer, Levin, Naftalis & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
Attention: Xxxxx Xxxxxxxxx, Esq.
If to Banco:
Xxxxxx XX
00000 Xxxxxx
XXXXX
Facsimile No.: 011-34-1-522-6821
Attention: Xxxxxxx Xxxxx
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With a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
Attn: Xxxx Xxxxxx, Esq.
If to a Rightsholder other than Banco, to the last known address of such
Rightsholder.
20. Entire Agreement. This Agreement constitutes the entire agreement among
the parties with respect to the subject matter hereof and thereof, supersedes
all prior agreements and understandings, written or oral, among the parties with
respect thereto, and no party shall be liable or bound to any other party in any
manner by any promises, conditions, warranties, representations, or covenants
except as specifically set forth herein or therein.
21. Amendments and Waivers. Any term of this Agreement may be amended and
the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only by an
instrument in writing and signed by the party against whom such amendment or
waiver is sought to be enforced.
22. Successors and Assigns. The Company may not assign any of its rights or
liabilities under this Agreement without the prior written consent of Banco. The
rights granted to Banco pursuant to this Agreement may be assigned without the
prior written consent of the Company. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties. Nothing in this Agreement, express or implied,
is intended to confer upon any party other than the parties hereto or their
respective successors and permitted assigns any rights, remedies, obligations,
or liabilities under or by reason of this Agreement, except as expressly
provided in this Agreement.
23. Governing Law. This Agreement, including the validity hereof and the
rights and obligations of the parties hereunder, and all amendments and
supplements hereof and all waivers and consents hereunder, shall be construed in
accordance with and governed by the domestic substantive laws of the State of
New York without giving effect to any choice of law or conflicts of law
provision or rule that would cause the application of the domestic substantive
laws of any other jurisdiction.
24. Severability. If any provisions of this Agreement as applied to any
party or to any circumstance shall be adjudged by a court to be invalid or
unenforceable, the same shall in no way affect any other provision of this
Agreement, the application of such provision in any other circumstances or the
validity or enforceability of this Agreement.
25. Further Assurances. Each of the parties agrees to execute and deliver
such additional documents and/or instruments, and to take such further actions,
as may reasonably be required from time to time to carry out the intent, purpose
and provisions of this Agreement.
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26. Section Headings. The Section headings contained herein are for
convenience of reference only, are not part of this Agreement and shall not
limit or otherwise affect the meaning of this Agreement.
27. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed as of the date first above written.
RESEAL FOOD DISPENSING SYSTEMS, INC.
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: President
BANCO INVERSION, S.A.
By: /s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title:
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