REGISTRATION RIGHTS AGREEMENT
EXHIBIT
10.22
REGISTRATION RIGHTS AGREEMENT (this
“Agreement”),
dated as of May 13, 2010, by and between SSGI, Inc., a Florida corporation (the
“Company”), and
Xxxxx X. Xxxxx, Xx., an individual resident of the State of Florida (“Seller”).
WHEREAS, the Company and Seller are
parties to that certain Stock Purchase Agreement, dated May 13, 2010 (the “Purchase Agreement”),
pursuant to which the Company purchased from Seller all of the capital stock of
B & M Construction Co., Inc., a Florida corporation, owned by
Seller; and
WHEREAS, pursuant to the terms of the
Purchase Agreement, the Company is required to give Seller certain registration
rights with respect to the shares of common stock, par value $0.001 per share,
of the Company received by Seller pursuant to the terms of the Purchase
Agreement.
NOW, THEREFORE, in consideration of the
premises and the mutual agreements herein set forth, the parties hereto agree as
follows:
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Section
1.
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Incidental
Registration.
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(a) If
the Company at any time proposes to register any of its securities under the
Securities Act (by reason of registration rights granted to any Person or
otherwise) on any form other than Form S-4 or Form S-8 (or any similar form then
in effect), whether or not for sale for its own account, and if the registration
form proposed to be used may be used for the registration of Registrable
Securities, the Company will in each such case give prompt written notice (and
in any event at least 45 days prior written notice prior to effectiveness of
such registration statement) to Seller of its intention to do so, such notice to
specify the securities to be registered, the Proposed Amounts thereof and the
date not less than 30 days thereafter by which the Company must receive Seller’s
written indication of whether he will include his Registrable Securities in such
registration statement and advising Seller of his rights under this Section
1. Upon the written request of Seller made on or before the date
specified in such notice (which request shall specify the Registrable Securities
and the Proposed Amounts thereof intended to be disposed of by Seller), the
Company will, to the extent permitted under Section 6, use its commercially
reasonable efforts to cause all such Registrable Securities to be registered
under the Securities Act (with the securities that the Company at the time
proposes to register), to the extent requisite to permit the sale or other
disposition (in accordance with the intended methods thereof as aforesaid) by
Seller of the Registrable Securities to be so registered.
(b) Notwithstanding
anything to the contrary in this Section 1, the Company shall have the right to
discontinue any registration under this Section 1 at any time prior to the
effective date of such registration if the registration of other securities
giving rise to such registration under this Section 1 is
discontinued.
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Section
2.
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Registration
Procedures.
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If and whenever the Company is required
by the provisions of this Agreement to use its commercially reasonable efforts
to effect or cause the registration of any Registrable Securities under the
Securities Act as provided in this Agreement, the Company will, as expeditiously
as possible:
(a) prepare
and file with the Commission a registration statement with respect to such
Registrable Securities and use its commercially reasonable efforts to cause such
registration statement to become and remain effective;
(b) prepare
and file with the Commission such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for such period not to
exceed 18 months (or such shorter period, but not less than six months, as shall
be necessary to complete the distribution of the securities covered thereby) and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition by
Seller set forth in such registration statement;
(c) furnish
to counsel for Seller and each underwriter of the securities being sold by
Seller, at least 20 days prior to the filing thereof, such number of copies of
such registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus),
in conformity with the requirements of the Securities Act, and such other
documents, as such counsel may reasonably request, in substantially the form in
which they are proposed to be filed with the Commission, in order to facilitate
the public sale or other disposition of the Registrable Securities owned by
Seller;
(d) use
its commercially reasonable efforts to register or qualify such Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as each underwriter of the securities being
sold by Seller (or Seller, in the absence of an underwriter) shall reasonably
request, and do any and all other acts and things which may be necessary or
advisable to enable Seller and his underwriter, if any, to consummate the
disposition in such jurisdictions of such Registrable Securities owned by
Seller, except that the Company shall not for any such purpose be required to
qualify generally to do business as a foreign corporation in any jurisdiction
where, but for the requirements of this clause (d), it would not be obligated to
be so qualified, or to subject itself to taxation in any such
jurisdiction;
(e) use
its commercially reasonable efforts to cause such Registrable Securities covered
by such registration statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable Seller to
consummate the disposition of such Registrable Securities;
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(f) notify
Seller, at any time when a prospectus relating to such registration statement is
required to be delivered under the Securities Act, of the Company’s becoming
aware that the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and promptly
prepare and furnish to Seller and each underwriter a reasonable number of copies
of a prospectus supplement or amendment so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus 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
the light of the circumstances then existing;
(g) otherwise
use its commercially reasonable efforts to comply with all applicable rules and
regulations of the Commission, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at
least 12 months, but not more than 18 months, beginning with the first day of
the Company’s first calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 adopted pursuant to the
Securities Act;
(h) provide
a transfer agent and registrar for all such Registrable Securities covered by
such registration statement not later than the effective date of such
registration statement;
(i) enter
into such agreements (including an underwriting agreement in customary form) and
take such other actions as Seller shall reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities;
(j) make
available for inspection by Seller, by any underwriter participating in any
disposition to be effected pursuant to such registration statement and by any
attorney, accountant or other agent retained by Seller or any such underwriter,
all pertinent financial and other records, pertinent corporate documents and
properties of the Company and cause all of the Company’s officers, directors,
employees and the independent public accountants who have certified its
financial statements to supply all information reasonably requested by Seller,
underwriter, attorney, accountant or agent in connection with such registration
statement;
(k) permit
Seller to (i) participate in the preparation of such registration or comparable
statement, (ii) require the insertion therein of material, furnished to the
Company in writing, which in the reasonable judgment of Seller should be
included, and (iii) receive such documents and make such requests as Seller is
entitled to under this Section 2; and
(l) in
the case of an underwritten offering, enable the Registrable Securities to be in
such denominations and registered in such names as the underwriters may request
at least five business days prior to the sale of the Registrable
Securities.
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Seller shall be deemed to have agreed
by acquisition of such Registrable Securities that, upon receipt of any notice
from the Company of the happening of any event of the kind described in
subdivision (f) above, Seller will forthwith discontinue his disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until his receipt of the copies of the supplemented or
amended prospectus contemplated by said subdivision and, if so directed by the
Company, will deliver to the Company (at the Company’s expense) all copies,
other than permanent file copies, then in his possession of the prospectus
covering such Registrable Securities current at the time of receipt of such
notice. In the event the Company shall give any such notice, the
period mentioned in subdivision (b) above shall be extended by the number of
days during the period from and including the date of the giving of such notice
to and including the date when Seller shall have received the copies of the
supplemented or amended prospectus contemplated by subdivision (f)
above.
Seller shall furnish to the Company in
writing such information and documents regarding Seller and the distribution of
such Registrable Securities as may be required to be disclosed in the
registration statement in question by the rules and regulations under the
Securities Act or under any other applicable securities or blue sky laws of the
jurisdictions referred to in Section 2(d) hereof.
If any such registration or comparable
statement refers to Seller by name or otherwise as the holder of any securities
of the Company then (whether or not Seller is a selling shareholder) Seller
shall have the right to require (i) the insertion therein of language, in form
and substance reasonably satisfactory to Seller and presented to the Company in
writing, to the effect that the holding by Seller of such securities is not to
be construed as a recommendation by Seller of the investment quality of the
Company’s securities covered thereby and that such holding does not imply that
Seller will assist in meeting any future financial requirements of the Company,
or (ii) in the event that such reference to Seller by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to Seller.
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Section
3.
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Registration
Expenses.
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In connection with any registration of
Registrable Securities pursuant to Section 1, the Company will, whether or not
any registration pursuant to this Agreement shall become effective, from time to
time promptly upon receipt of bills or invoices relating thereto, pay all
expenses (other than Selling Expenses, which shall be borne solely by Seller)
incident to its performance of or compliance with this Agreement, including,
without limitation, all registration, filing and FINRA fees, fees and expenses
of compliance with securities or blue sky laws, word processing, duplicating and
printing expenses, messenger and delivery expenses, fees and disbursements of
counsel for the Company and all independent public accountants (including the
expenses of any audit) and other persons retained by the Company, and reasonable
fees and disbursements of one counsel or firm of counsel retained by
Seller.
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Section
4.
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Indemnification.
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(a) The
Company will, and hereby does, indemnify, to the extent permitted by law, Seller
and each Person, if any, who controls Seller within the meaning of Section 15 of
the Securities Act, against all losses, claims, damages, liabilities (or
proceedings in respect thereof) and expenses (under the Securities Act or common
law or otherwise), joint or several, caused by any untrue statement or alleged
untrue statement of a material fact contained in any registration statement or
prospectus (and as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus or caused
by 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,
except insofar as such losses, claims, damages, liabilities (or proceedings in
respect thereof) or expenses are caused by any untrue statement made in reliance
on or in conformity with any information furnished in writing to the Company by
Seller expressly for use therein. If the offering pursuant to any
registration statement provided for under this Agreement is made through
underwriters, no action or failure to act on the part of such underwriters
(whether or not such underwriter is an Affiliate of Seller) shall affect the
Company’s obligations to indemnify Seller or any other Person pursuant to the
preceding sentence. If the offering pursuant to any registration
statement provided for under this Agreement is made through underwriters, the
Company agrees to enter into an underwriting agreement in customary form with
such underwriters and to indemnify such underwriters, their officers and
directors, if any, and each Person, if any, who controls such underwriters
within the meaning of Section 15 of the Securities Act to the same extent as
hereinbefore provided with respect to the indemnification of Seller; provided, however, that the
Company shall not be required to indemnify any such underwriter, or any officer
or director of such underwriter or any Person who controls such underwriter
within the meaning of Section 15 of the Securities Act, to the extent that the
loss, claim, damage, liability (or proceedings in respect thereof) or expense
for which indemnification is claimed results from such underwriter’s failure to
send or give a copy of the amended or supplemented final prospectus, at or prior
to the written confirmation of the sale of Registrable Securities, to a Person
asserting the existence of an untrue statement or alleged untrue statement or
omission or alleged omission if such statement or omission was corrected in such
amended or supplemented final prospectus prior to such written confirmation and
the underwriter was given notice of the availability of such amended or
supplemented final prospectus.
In connection with any registration
statement in which Seller is participating, Seller will furnish to the Company
in writing such information as shall be reasonably requested by the Company for
use in any such registration statement or prospectus and will indemnify, to the
extent permitted by law, the Company, its officers and directors and each
Person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act, against any losses, claims, damages, liabilities (or proceedings
in respect thereof) and expenses resulting from any untrue statement of a
material fact or any omission or alleged omission of a material fact required to
be stated in the registration statement or prospectus or preliminary prospectus
or any amendment thereof or supplement thereto, or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement is made in reliance on or in conformity with any information so
furnished in writing by Seller expressly for use therein; provided, however, that
Seller’s obligations hereunder shall be limited to an amount equal to the
proceeds to Seller of the Registrable Securities sold pursuant to such
registration statement.
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Any Person entitled to indemnification
under the provisions of this Section 4 shall (i) give prompt notice to the
indemnifying party of any claim with respect to which it seeks indemnification,
and (ii) unless in such indemnified party’s reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist in respect
of such claim, permit such indemnifying party to assume the defense of such
claim, with counsel reasonably satisfactory to the indemnified party; and if
such defense is so assumed, such indemnifying party shall not enter into any
settlement without the consent of the indemnified party if such settlement
attributes liability to the indemnified party and such indemnifying party shall
not be subject to any liability for any settlement made without its consent
(which shall not be unreasonably withheld, conditioned or delayed); and any
underwriting agreement entered into with respect to any registration statement
provided for under this Agreement shall so provide. In the event an
indemnifying party shall not be entitled, or elects not, to assume the defense
of a claim, such indemnifying party shall not be obligated to pay the fees and
expenses of more than one counsel or firm of counsel for all parties indemnified
by such indemnifying party in respect of such claim, unless in the reasonable
judgment of any such indemnified party a conflict of interest may exist between
such indemnified party and any other of such indemnified parties in respect to
such claim. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of Seller or any Person, if
any, who controls Seller as aforesaid, and shall survive the transfer of such
securities by Seller.
(b) If
for any reason the foregoing indemnity is unavailable, then the indemnifying
party shall contribute to the amount paid or payable by the indemnified party as
a result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other and
the relative fault of the indemnifying party and the indemnified party and any
other relevant equitable considerations. Notwithstanding the
foregoing, (i) Seller shall not be required to contribute any amount in excess
of the amount Seller would have been required to pay to an indemnified party if
the indemnity under subdivision (a) of this Section 4 was available, and (ii) no
underwriter, if any, shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The obligation of any underwriters to contribute
pursuant to this Section 4 shall be several in proportion to their respective
underwriting commitments and not joint.
(c) An
indemnifying party shall make payments of all amounts required to be made
pursuant to the foregoing provisions of this Section 4 to or for the account of
the indemnified party from time to time promptly upon receipt of bills or
invoices relating thereto or when otherwise due and payable.
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Section
5.
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Certain Limitations on
Registration Rights.
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In the case of a registration under
Section 1 of this Agreement, if the Company or Seller has determined to enter
into an underwriting agreement in connection therewith, all shares constituting
Registrable Securities to be included in such registration shall be subject to
such underwriting agreement and no Person may participate in such registration
unless such Person agrees to sell such Person’s securities on the basis provided
in the underwriting arrangements approved by Seller and completes and/or
executes all questionnaires, indemnities, underwriting agreements and other
reasonable documents which must be executed under the terms of such underwriting
arrangements.
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Section
6.
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Allocation of
Securities Included in Registration
Statement.
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In the case of a registration pursuant
to Section 1, if the Company’s managing underwriter shall advise the Company and
Seller in writing that the inclusion in any registration pursuant to this
Agreement of some or all of the Registrable Securities sought to be registered
by Seller creates a substantial risk that the proceeds or price per unit that
will be derived from such registration will be reduced or that the number of
securities to be registered is too large a number to be reasonably sold, (i)
first, the
number of Company Securities sought to be registered shall be included in such
registration, and (ii) second, the number of
Registrable Securities sought to be registered by Seller shall be included in
such registration (unless such amount exceeds the maximum amount that such
managing underwriter recommends be registered reduced by the number of shares of
Company Securities to be included in such registration pursuant to clause (i),
in which case the Company shall include in such registration the excess of such
maximum amount over the number of Company Securities to be included pursuant to
clause (i), allocated on the basis of the amount of Registrable Securities
requested to be included therein by Seller).
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Section
7.
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Limitations on Sale or
Distribution of Securities.
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If a registration under this Agreement
shall be in connection with an underwritten public offering, Seller shall be
deemed to have agreed by acquisition of such Registrable Securities not to
effect any public sale or distribution, including any sale pursuant to Rule 144
under the Securities Act, of any Registrable Securities, and to use Seller’s
commercially reasonable efforts not to effect any such public sale or
distribution of any other equity security of the Company or of any security
convertible into or exchangeable or exercisable for any equity security of the
Company (other than as part of such underwritten public offering) within 10 days
before or 120 days after the effective date of such registration
statement.
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Section
8.
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Adjustments Affecting
Registrable Securities.
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The Company will not effect or permit
to occur any combination or subdivision of shares that would adversely affect
the ability of the holder of any Registrable Securities to include such
Registrable Securities in any registration contemplated by this Agreement or the
marketability of such Registrable Securities in any such
registration. If the underwriter in any offering of Registrable
Securities registered pursuant to this Agreement shall advise the Company and
Seller in writing of the advisability of splitting the shares of such
Registrable Securities in connection with such offering, the Company will effect
such split, that, if under applicable law such split requires any approval of
shareholders of the Company, the Company shall not be required to effect such
split unless such approval shall be obtained (it being understood that the
Company shall use its commercially reasonable efforts to obtain any such
required approval).
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Section
9.
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Rule
144.
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If the Company shall have filed a
registration statement pursuant to the requirements of Section 12 of the
Exchange Act or a registration statement pursuant to the requirements of the
Securities Act, the Company will timely file the reports required to be filed by
it under the Securities Act or the Exchange Act (including, without limitation,
the reports under Sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(l) of Rule 144 adopted by the Commission under the Securities
Act) and the rules and regulations adopted by the Commission thereunder (or, if
the Company is not required to file such reports, will, upon the request of
Seller, make publicly available other information), and will take such further
action as Seller may reasonably request, all to the extent required from time to
time to enable Seller to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rule may be amended from time to time, or
(b) any similar rule or regulation hereafter adopted by the
Commission. Notwithstanding the foregoing, Seller acknowledges that
the Company did not timely file with the Commission its Form 10-K for the period
ended December 31, 2009. The Company intends to file such Form 10-K
with the Commission as soon as reasonably practicable. Upon the
request of Seller, the Company will deliver to Seller a written statement as to
whether it has complied with such requirements.
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Section
10.
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Nominees for
Beneficial Owners.
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In the event that Registrable
Securities are held by a nominee for Seller, Seller may, at his option and by
written notice to the Company, be treated as the holder of such Registrable
Securities for purposes of any request or other action by Seller pursuant to
this Agreement.
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Section
11.
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Registration Rights to
Others.
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If the Company shall at any time
hereafter provide to any holder of any securities of the Company rights with
respect to the registration of such securities under the Securities Act, such
rights shall not be in conflict with or adversely affect any of the rights
provided in this Agreement to Seller.
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Section
12.
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Definitions.
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The following terms have the following
respective meanings for the purpose of this Agreement:
Affiliate: Any
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For the purposes of this
definition, “control” when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.
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Commission: The
Securities and Exchange Commission or any other governmental body at the time
administering the Securities Act.
Common
Stock: The Company’s authorized Common Stock, $0.001 par
value, as constituted on the date of this Agreement, any stock into which such
Common Stock may thereafter be changed and any stock of the Company of any other
class, which is not preferred as to dividends or assets over any other class of
stock of the Company and which is not subject to redemption, issued to the
holder of shares of such Common Stock upon any reclassification
thereof.
Company: SSGI,
Inc., a Florida corporation.
Company
Securities: Any securities proposed to be sold by the Company
in the registration statement referred to.
Exchange
Act: The Securities Exchange Act of 1934, as amended, or any
similar federal statute as at the time in effect, and any reference to a
particular section of such Act shall include a reference to the comparable
section, if any, of any such similar federal statute.
Person: A
corporation, an association, a partnership, a limited liability company, a joint
venture, a trust, an organization, a business, an individual, a government or
political subdivision thereof or a governmental body.
Proposed
Amount: With respect to any class of securities of the
Company, the number of shares or units of such class which the holder thereof
shall request the Company to register or which the Company shall propose to
register pursuant to Section 1.
Registrable
Securities: Any Common Stock issued to Seller under the
Purchase Agreement and held by Seller, and any Common Stock or other equity
security issued or issuable to Seller by way of a stock dividend or stock split
with respect to such Common Stock or in connection with a merger, consolidation
or similar transaction; provided, however, that as to
any particular Registrable Securities, once issued such securities shall cease
to be Registrable Securities when (i) a registration statement with respect to
the sale of such securities shall have become effective under the Securities Act
and such securities shall have been disposed of in accordance with such
registration statement, (ii) they shall have been distributed to the public
pursuant to Rule 144 (or any successor provision) under the Securities Act, or
(iii) they shall have been otherwise transferred, new certificates for them not
bearing a legend restricting further transfer shall have been delivered by the
Company and subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state law then in
force.
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Securities
Act: The Securities Act of 1933, as amended, or any similar
federal statute as at the time in effect, and any reference to a particular
section of such Act shall include a reference to the comparable section, if any,
of any such similar federal statute.
Selling
Expenses: All underwriting discounts, selling commissions and
stock transfer taxes applicable to the securities registered by Seller and,
except as set forth in Section 3 hereof, all reasonable fees and disbursements
of counsel for Seller.
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Section
13.
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Amendments and
Waivers.
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This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent to such amendment, action or omission to act, of
Seller.
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Section
14.
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Notices.
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Notices and other communications under
this Agreement shall be in writing and shall be made by hand delivery, overnight
courier, first-class mail, fax or email, as follows:
(a) if
to Seller to:
Xxxxx X. Xxxxx, Xx.
0000 X.X. Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
0000 X.X. Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
xxxxx.xxxxx@xxxxxxxxxxxxxx.xxx
with a copy to:
Fee & Xxxxxxxx, P.A.
0000 X. Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx,
Esq.
Fax: (000) 000-0000
xxxxxxxxx@xxxxxxxxxxx.xxx
(b) if
to the Company to:
0000 Xxxxxxxxx Xxxx, Xxxxx
0,
Xxxx Xxxx Xxxxx,
Xxxxxxx 00000
Attn: Xxxxx X.
Xxxxxxxxx
Fax: (000) 000-0000
xxxxx.xxxxxxxxx@xxx.xxx
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with a copy to:
Block & Garden, LLP
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Garden,
Esq.
Fax: (000) 000-0000
xxxxxx@xxxxxx.xxx
All such notices and communications
shall be deemed to have been duly given: when delivered by hand, if personally
delivered; 12:00 Noon (Eastern Standard Time) of the day following delivery to
an overnight courier, if delivered by overnight courier; five business days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
acknowledged, if faxed or emailed. Each party may change its address
for purposes of this Section 14 by proper notice to the other
party.
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Section
15.
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Specific
Performance.
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The parties hereto recognize and agree
that money damages may be insufficient to compensate Seller for breaches by the
Company of the terms hereof and, consequently, that the equitable remedy of
specific performance of the terms hereof will be available in the event of any
such breach.
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Section
16.
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Severability.
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In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions contained herein shall not be in
any way impaired thereby, it being intended that all of the rights and
privileges of Seller shall be enforceable to the fullest extent permitted by
law.
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Section
17.
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Miscellaneous.
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(a) This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto, whether so
expressed or not, and, in particular, shall inure to the benefit of and be
enforceable by any holder of Registrable Securities.
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(b) This
Agreement embodies the entire agreement and understanding between the Company
and Seller with respect to the subject matter hereof, and supersedes all prior
agreements and understandings relating to the subject matter
hereof.
(c) THIS
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF
FLORIDA AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
SAID STATE APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WITHIN SAID
STATE. Each of the Company and Seller (i) hereby irrevocably submits
to the exclusive jurisdiction of the United States District Court for the
Southern District of Florida and the courts of the State of Florida located in
Palm Beach County, Florida, for the purposes of any suit, action or proceeding
arising out of or relating to this Agreement, and (ii) hereby waives, and agrees
not to assert in any such suit, action or proceeding, any claim that he or it is
not personally subject to the jurisdiction of any such court, that the suit,
action or proceeding is brought in an inconvenient forum or that the venue of
the suit, action or proceeding is improper.
(d) The
headings in this Agreement are for purposes of reference only and shall not
limit or otherwise affect the meaning hereof.
(e) This
Agreement may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument.
[Remainder
of page intentionally left blank; signature page to
follow.]
12
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, as of the day and year first above written.
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By:
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/s/ Xxxxx X. Xxxxxxxxx
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Xxxxx
X. Xxxxxxxxx, Chief
Executive Officer
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|
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/s/ Xxxxx X. Xxxxx, Xx.
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|
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Xxxxx
X. Xxxxx, Xx.
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13
