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EXHIBIT 10.6
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of July 28, 1999 (this
"Agreement") is made by and among Xxxxxxxx.xxx Incorporated, Inc., a New York
corporation (the "Corporation"), and USA Group Xxxx-Xxxxxx, Inc., an Indiana
Corporation (AUSAGNL").
WHEREAS, pursuant to an Agreement and Plan of Merger dated as of June
18, 1999 ("Merger Agreement") by and among the Corporation, XxxxxxxXxxx.xxx
Incorporated, a Delaware corporation and subsidiary of the Corporation ("Merger
Sub"), ECI, Inc., a Massachusetts Corporation ("ECI") and certain other parties
thereto, the parties thereto have agreed, subject to the terms and conditions
set forth therein, to merge ECI with and into Merger Sub (the "Merger") and
thereby to convert all shares of ECI common stock then outstanding into (i)
shares of Common Stock, $.001 par value per share, of the Corporation ("Common
Stock") and (ii) shares of Series B Preferred Stock, $.01 par value per share,
of the Corporation ("Series B Stock");
WHEREAS, pursuant to a letter agreement (the "Letter Agreement")
between the Corporation, ECI and USAGNL dated July 28, 1999 the Corporation has
agreed to issue to USAGNL shares of Common Stock and Series B Stock in
settlement of certain claims by USAGNL against ECI; and
WHEREAS, USAGNL desires to have liquidity with respect to the shares of
Common Stock it receives through the Letter Agreement or through conversion of
Series B Stock;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
(a) The term "Act" means the Securities Act of 1933, as
amended;
(b) The term "1934 Act" means the Securities Exchange Act
of 1934, as amended;
(c) "Commission" or "SEC" means the United States
Securities and Exchange Commission, or any
governmental agency succeeding to its functions;
(d) The term "Holder" means USAGNL so long as it holds
Registrable Securities and any other person or entity
holding Registrable Securities to whom the
registration rights granted in this Agreement have
been transferred pursuant to Section 10 hereof;
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(e) The terms "register," "registered," and
"registration" refer to a registration effected by
preparing and filing a registration statement in
compliance with the Act and the declaration or
ordering of effectiveness of such registration
statement; and
(f) The term "Registrable Securities" means the shares of
Common Stock issued to USAGNL pursuant to the Letter
Agreement and the shares of Common Stock issuable
upon conversion of the Series B Stock issued to
USAGNL pursuant to the Letter Agreement, together
with any and all other shares or other securities of
the Corporation issued to the Holders as a result of
a stock split, recapitalization, merger,
consolidation, reorganization, combination or
exchange of shares, or similar event.
2. Piggy-back Registration.
(a) Subject to Section 6 of this Agreement, if at any time the
Corporation proposes to register any of its Common Stock under the Act in
connection with the public offering of such securities for its own account or
for the accounts of other shareholders, solely for cash on a form that would
also permit the registration of the Registrable Securities, the Corporation
shall, each such time, promptly give each Holder written notice of such
determination. Upon the written request of any Holder given within ten (10) days
after USAGNL's receipt of any such notice from the Corporation, the Corporation
shall use its best efforts to cause to be registered under the Act all of the
Registrable Securities that such Holder has requested be registered. The
foregoing notwithstanding, the Corporation may, in its discretion, withdraw any
registration statement referred to in this Section 2 prior to the effectiveness
thereof.
(b) In connection with any registration of any Registrable
Securities pursuant to this Section 2, the Corporation may, at its option,
exercised in writing prior to the filing of the registration statement, require
that such Registrable Securities be sold in accordance with the plan of
distribution of the securities being registered on behalf of the Corporation or
on behalf of any of its securityholders, provided that any such requirement
shall also be imposed on all other securityholders whose securities are to be
included in any such registration statement.
3. Obligations of the Corporation. Whenever required under this
Agreement to use its best efforts to effect the registration of any Registrable
Securities, the Corporation shall, as expeditiously as reasonably possible:
(a) Prepare and file with the Commission a registration
statement with respect to such Registrable Securities promptly after receipt by
the Corporation of the Holder's request contemplated by Section 2(a) hereof, and
use its best efforts to cause such registration statement to become effective
and to keep the registration statement effective pursuant to Rule 415 and
current at all times for up to six (6) months but in any case no later than the
date on
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which all Registrable Securities have been sold by the Holder under
circumstances in which the buyers may resell the Registrable Securities without
registration under the Securities Act; provided, however, that in connection
with any proposed registration intended to permit an offering of any securities
from time to time (i.e., a so-called "shelf registration"), the Corporation
shall in no event be obligated to cause any such registration to remain
effective for more than one year provided that the rights of each Holder under
Section 2 of this Agreement shall remain in full force and effect regardless of
the lapsing of the effectiveness of such registration.
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Act with respect to the disposition of all securities covered
by such registration statement.
(c) Furnish to the Holders such numbers of copies of a
prospectus, including a preliminary prospectus, in conformity with the
requirements of the Act, and such other documents as they may reasonably request
in order to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably appropriate for the
distribution of the securities covered by the registration statement; provided,
however, that the Corporation shall not be required in connection therewith or
as a condition thereto to qualify to do business, to subject itself to general
taxation, to file a general consent to service of process, or to provide any
undertakings that cause more than nominal expense or burden to the Corporation
in any such states or jurisdictions.
(e) Provide a transfer agent for the Common Stock no later
than the effective date of the first registration of any Registrable Securities.
(f) Otherwise comply in all material respects with all
applicable rules and regulations of the Commission.
(g) Use its best efforts to list the Registrable Securities on
each securities exchange on which securities of the same class are then listed,
if such Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange.
(h) Enter into such customary agreements (including an
underwriting agreement in customary form) and take such other actions as sellers
of Registrable Securities shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities.
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(i) On the effective day of such registration statement or, in
the case of an underwritten offering, on the date of delivery of the Registrable
Securities sold pursuant thereto, cause to be delivered to the selling Holders,
opinions of counsel for the Corporation, which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to counsel for the selling
Holders, covering the matters customarily covered in opinions given to selling
stockholders in primary underwritten public offerings. In the case of an
underwritten offering, at the time of delivery of any Registrable Securities
sold pursuant thereto, the Corporation shall cause to be delivered to the
selling Holders letters from the Corporation's independent public accountants
with respect to the Corporation within the meaning of the Act and the applicable
published rules and regulations of the SEC thereunder, and otherwise in
customary form and covering such financial and accounting matters as are
customarily covered by letters of the independent public accountants delivered
in connection with underwritten public offerings.
(j) Upon three days prior written notice and at reasonable
times during normal business hours and without undue interruption of the
Corporation's business or operations (or on such shorter notice and at such
other times as may be appropriate under the circumstances), make available for
inspection by the selling Holders and by any attorney, accountant or other agent
retained by the selling Holders all pertinent financial and other records and
pertinent corporate documents and properties of the Corporation, and cause all
of the Corporation's officers, directors and employees to supply all information
reasonably requested by the selling Holders or any such attorney, accountant or
agent in connection with such registration statement.
(k) Permit any selling Holder, who, in the sole and exclusive
judgment, exercised in good faith, of the Corporation, might be deemed to be a
controlling person of the Corporation (within the meaning of the Act or the 1934
Act), to participate in the preparation of such registration statement and to
require the insertion therein of material, furnished to the Corporation in
writing, which in the judgment of such controlling Holder should be included and
which is reasonably acceptable to the Corporation.
(l) Use every reasonable effort to prevent the issuance of any
stop order suspending the effectiveness of such registration statement or of any
order preventing or suspending the use of any preliminary prospectus and, if any
such order is issued, to obtain the lifting thereof at the earliest reasonable
time.
(m) Make such representations and warranties to the selling
Holders as are customarily made by issuers to selling stockholders in
underwritten public offerings.
(n) Notify each Holder and confirm such advice in writing, (i)
when the Corporation's registration statement as to which any Holder has
exercised its rights hereunder has become effective, (ii) when any
post-effective amendment to any such registration statement has become
effective, (iii) of any request by the Commission or any state securities
regulatory authority for any amendment or supplement to such registration
statement or any
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prospectus relating thereto or for any additional information, (iv) if at any
time the SEC or any state securities regulatory authority should institute or
threaten to institute any proceedings for the purpose of issuing, or should
issue, a stop order suspending the effectiveness of any such registration
statement, (v) of any order or communication of any government agency or
authority addressed to the Corporation suspending or threatening to suspend the
qualification of any of the Registrable Securities for sale in any jurisdiction,
and (vi) at any time when a prospectus relating thereto is required to be
delivered under the Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading. At the request of USAGNL, the Corporation shall prepare a
supplement or amendment to such prospectus so that, as thereafter delivered to
USAGNL, such prospectus shall not contain an untrue statement of a material fact
or omit to state any fact necessary to make the statements therein not
misleading.
4. Conditions to Registration. The Holders' right to have Registrable
Securities included in any registration statement filed by the Corporation in
accordance with the provisions of this Agreement shall be subject to the
following conditions:
(a) The Holder shall be required to furnish the Corporation in
a timely manner with all information required by the applicable rules and
regulations of the Commission concerning such Holder (including, without
limitation, a Selling Stockholder Questionnaire in such form as the Corporation
shall reasonably request), the proposed method of sale or other disposition of
the Registrable Securities if different from that contemplated by Section 2(b)
above, and such other information as may be reasonably required by the
Corporation properly to prepare and file such registration statement in
accordance with applicable provisions of the Act;
(b) If such Holder desires to sell and distribute Registrable
Securities over a period of time, or from time to time, at then prevailing
market prices, then such Holder shall execute and deliver to the Corporation
such written undertakings as the Corporation and its counsel may reasonably
require in order to assure full compliance with relevant provisions of the Act
and the 1934 Act including, without limitation, providing the Corporation with
48 hours prior written notice of each such sale and providing the Corporation
with assurances, reasonably satisfactory to the Corporation, that such Holder
will meet the prospectus delivery requirements under the Act, if applicable;
(c) The offering price for any Registrable Securities to be
registered pursuant to the provisions of this Agreement shall be no less than
for any shares of Common Stock then to be registered for sale for the account of
the Corporation or other security holders of the Corporation, unless such
Registrable Securities or shares of Common Stock are to be offered from time to
time based on the prevailing market price;
(d) In the event that the Corporation shall notify the Holder
that there is material undisclosed information concerning the Corporation and
that the prospectus contained
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in any registration statement for the Registrable Securities does not comply
with the requirements of the Act, the Holder shall refrain from selling any of
its Registrable Securities until such time as the Corporation shall have
notified the Holder that it may proceed with a sale; and
(e) Promptly, but in any event within 72 hours, after each
selling Holder shall have sold all its Registrable Securities, such Holder shall
so notify the Corporation so that the Corporation may comply with its obligation
to terminate the Registration Statement in accordance with Item 512 of
Regulation SK or Regulation SB, as the case may be.
5. Expenses. In the case of any registration under this Agreement, the
Corporation shall bear all costs and expenses of each such registration,
including, but not limited to, registration, qualification, printing, legal and
accounting expenses, Securities and Exchange Commission and National Association
of Securities Dealers, Inc. filing fees and expenses, and "blue sky" fees and
expenses; provided, however, that the Corporation shall have no obligation to
pay or otherwise bear (i) any portion of the underwriters' commissions or
discounts attributable to the Registrable Shares or the fees and expenses of any
special or interim audit or review required in connection with such
registration, (ii) the cost and expenses of procuring underwriters' insurance in
connection with the sale of Registrable Shares by Holders, or (iii) any portion
of the fees or disbursements of counsel for the selling Holders in connection
with the registration of their Registrable Shares.
6. Underwriting Requirements. (a) In connection with any offering
involving an underwriting of shares being issued by the Corporation, the
Corporation shall not be required to include any of the Holders' Registrable
Securities in such underwriting unless they accept the terms of the underwriting
as agreed upon between the Corporation and the underwriters selected by it. If
the total amount of securities that all Holders request to be included in an
underwritten offering exceeds the amount of securities that the underwriters
reasonably believe compatible with the success of the offering, the Corporation
shall only be required to include in the offering so many of the securities of
the selling Holders as the underwriters reasonably believe will not jeopardize
the success of the offering. In such event, the shares to be included in such
offering shall be allocated and prioritized as follows: (i) first to the
securities initially proposed to be sold by the Corporation, (ii) second, to the
Registrable Securities which the Holders propose to sell together with any
securities proposed to be sold by any other persons ("Other Holders") who have
been granted registration rights similar to those contemplated by this Agreement
in connection with the Merger, which shall be apportioned pro rata among the
selling Holders and such Other Holders according to the total amount of
securities to be included in such offering by said selling Holders and such
Other Holders, or in such other proportions as shall be mutually agreed by said
selling Holders and such Other Holders, and (iii) third, to any other shares
which the Corporation permits to be included for its own account or for the
account of others; provided that any shares or other securities sold in any
"green-shoe" or other over-allotment option shall be allocated first to the
class set forth in clause (ii) above.
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(b) The Corporation shall have the right to designate the managing
underwriter or underwriters in connection with registrations under this
Agreement.
7. Delay of Registration. No Holder shall have any right to take any
action to restrain, enjoin, or otherwise delay any registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Agreement other than injunctive relief to prevent the
willful breach by the Corporation of its obligations under this Agreement or
other bad faith conduct by the Corporation.
8. Indemnification and Contribution. In the event any Registrable
Securities are included in a registration statement under this Agreement:
(a) To the extent permitted by law, the Corporation will indemnify and
hold harmless each Holder requesting or joining in a registration, any
underwriter (as defined in the Act) for it, and each director, officer or other
person, if any, who controls such Holder or underwriter within the meaning of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which they may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based on any untrue or alleged untrue statement of any material fact
contained in such registration statement, including, without limitation, any
preliminary prospectus or final prospectus contained therein or any amendments
or supplements thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or arise out of any
violation by the Corporation of any rule or regulation promulgated under the Act
applicable to the Corporation and relating to action or inaction required of the
Corporation in connection with any such registration; and will reimburse each
such Holder, such underwriter, or controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action, provided, however,
that the indemnity agreement contained in this Section 8(a) 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 Corporation, nor shall
the Corporation be liable in any such case with respect to any such Holder or
underwriter for any such loss, claim, damage, liability or action to the extent
that it arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in connection with such
registration statement, preliminary prospectus, final prospectus, or amendments
or supplements thereto, in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
such Holder, underwriter or controlling person. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the indemnified party and shall survive the transfer of the Registrable
Securities by the Holders pursuant to Section 10.
(b) To the extent permitted by law, each Holder requesting or joining
in a registration will indemnify and hold harmless the Corporation, each of its
directors, each of its officers who has signed the registration statement, each
person, if any, who controls the
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Corporation within the meaning of the Act, and any underwriter for the
Corporation (within the meaning of the Act) against any losses, claims, damages
or liabilities to which the Corporation or any such director, officer,
controlling person or underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in such
registration statement, preliminary prospectus or final prospectus, or
amendments or supplements thereto, in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and will reimburse the Corporation or any such director,
officer, controlling person or underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
indemnity agreement contained in this Section 8(b) 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 such Holder and provided further
that no Holder shall have any liability under this Section 8(b) in excess of the
net proceeds actually received by such Holder in the relevant public offering.
No Holder shall, except with the approval of each party being
indemnified under this Section 8(b), 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 the parties being so indemnified of a
release from all liability with respect to such claim or litigation.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof
and the indemnifying party shall have the right to participate in, and, to the
extent the indemnifying party so desires, jointly with any other indemnifying
party similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that if the defendants in any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded based upon the written
advice of counsel that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. Upon receipt of notice from the indemnifying party to such
indemnified party of its election so to appoint counsel to defend such action
and approval by the indemnified party of such counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 or otherwise
for any legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof unless (i) the indemnified party shall
have employed
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separate counsel in accordance with the proviso to the immediately preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (plus any local
counsel) representing each indemnified party who or which is a party to such
action), (ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). The failure to notify an indemnifying
party promptly of the commencement of any such action, to the extent prejudicial
to his ability to defend such action, shall relieve such indemnifying party of
liability to the indemnified party under this Section 8 to such extent, but the
omission so to notify the indemnifying party will not relieve him of any
liability that he may have to any indemnified party otherwise than under this
Section 8.
(d) In order to provide for just and equitable contribution to joint
liability under the Act in any case in which either (i) any Holder of
Registrable Securities exercising rights under this Agreement, or any
controlling person of any such Holder, makes a claim for indemnification
pursuant to this Section 8 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 8 provides for indemnification in such case, or (ii) contribution
under the Act may be required on the part of any such selling Holder or any such
controlling person in circumstances for which indemnification is provided under
this Section 8; then, and in each such case, the Corporation and such Holder
will contribute to the aggregate losses, claims, damages or liabilities to which
they may be subject (after contribution from others) in such proportion so that
such Holder is responsible for the portion represented by the percentage that
the public offering price of its Registrable Securities offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Corporation is responsible for
the remaining portion; provided, however, that, in any such case, (A) no such
Holder of Registrable Securities will be required to contribute any amount in
excess of the proceeds received from the sale of all such Registrable Securities
offered by it pursuant to such registration statement; and (B) no person or
entity guilty of fraudulent misrepresentation (within the meaning of Section
4(f) of the Act) will be entitled to contribution from any person or entity who
was not guilty of such fraudulent misrepresentation.
9. Reports Under the 1934 Act. With a view to making available to the
Holders the benefits of Rule 144 promulgated under the Act and any other rule or
regulation of the SEC that may at any time permit a Holder to sell securities of
the Corporation to the public without registration, the Corporation agrees to
use its best efforts to:
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(a) make and keep public information available, within the meaning of
Rule 144, at all times after the effective date of (i) the first registration
statement covering an underwritten public offering filed by the Corporation or
(ii) registration by the Corporation under the 1934 Act;
(b) following a public offering or a registration under the 1934 Act,
file with the SEC in a timely manner all reports and other documents required of
the Corporation under the Act and the 1934 Act; and
(c) furnish to any Holder forthwith upon request a written statement by
the Corporation that it has complied with the reporting requirements of Rule 144
(at any time after ninety (90) days after the effective date of said first
registration statement filed by the Corporation), and of the Act and the 1934
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 Corporation, and such
other reports and documents filed by the Corporation with the SEC as may be
reasonably requested in availing any such Holder to take advantage of any rule
or regulation of the SEC permitting the selling of any such securities without
registration.
10. Transfer of Registration Rights. The rights of any Holder (and of
any permitted transferee of any Holder or such Holder's permitted transferees)
under this Agreement with respect to any Registrable Securities may be
transferred to any transferee who acquires (otherwise than in a registered
public offering) such Registrable Securities; provided, however, that (i) the
Corporation is given written notice by the Holder promptly after such transfer
stating the name and address of the transferee and identifying the securities
with respect to which the rights under this Agreement are being assigned; and
(ii) at or before the time the Corporation receives such written notice the
transferee or assignee agrees to be bound by all of the provisions contained
herein.
11. "Market Stand-Off" Agreement. The Holder agrees, if requested by
the Corporation and an underwriter of Common Stock (or other securities) of the
Corporation, not to sell or otherwise transfer or dispose of any Common Stock
(or other securities) of the Corporation held by such Holder during any
reasonable period requested by the Corporation and such underwriter not to
exceed six (6) months following the effective date of a registration statement
of the Corporation filed under the Act, other than pursuant to Rule 144 or Rule
144A under the Act; provided, however, that all Holders of Registrable
Securities are required to enter into similar agreements and all executive
officers and directors of the Corporation and all persons including shares in
such offering actually enter into similar agreements. The Corporation may impose
stop-transfer instructions with respect to the shares (or securities) subject to
the foregoing restriction until the end of such period.
12. Termination of Registration Obligations. The obligations of the
Corporation to the Holder with respect to its rights of registration provided
for in this Agreement shall continue until such time as independent counsel for
the Corporation is of the opinion and has so advised the Corporation and such
Holder that such Holder may sell Registrable Securities
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pursuant to Rule 144 promulgated under the Act, provided that if independent
counsel for any Holder in good faith and in a timely manner disputes the
opinions reached by such counsel for the Corporation, the termination
contemplated by this Section 12 shall not occur until such dispute has been
resolved.
13. Miscellaneous. (a) This Agreement states the entire agreement of
the parties concerning the subject matter hereof, and supersedes all prior
agreements, written or oral, between or among them concerning such subject
matter.
(b) Any provision of this Agreement may be amended and the observance
thereof may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the
Corporation and each Holder. Any amendment or waiver effected in accordance with
this Section 13 shall be binding upon each Holder and the Corporation.
(c) A person or entity is deemed to be a Holder of Registrable
Securities whenever such person or entity owns of record such Registrable
Securities. If the Corporation receives conflicting instructions, notices or
elections from two or more persons or entities with respect to the same
Registrable Securities, the Corporation shall act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
(d) Notices required or permitted to be given hereunder shall be in
writing and shall be deemed to be sufficiently given when personally delivered
(by hand, by courier, by telephone line facsimile transmission or other means)
or sent by certified mail, return receipt requested, properly addressed and with
proper postage pre-paid (i) if to the Corporation, to Xxxxxxxx.xxx Incorporated,
000 Xxxxxxxxx Xxxxxx, Xxxxxxxxxx XX 00000 and (ii) if to USAGNL, at the address
set forth under its name in the Letter Agreement, or at such other address as
each such party furnishes by notice given in accordance with this Section 13(d),
and shall be effective, when personally delivered, upon receipt and, when so
sent by certified mail, four days after deposit with the United States Postal
Service.
(e) Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
(f) This Agreement shall be enforced, governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts applicable to
agreements made and to be performed entirely within such State. In the event
that any provision of this Agreement is invalid or unenforceable under any
applicable statute or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform with such statute or rule of law. Any provision hereof which
may prove invalid or unenforceable under any law shall not affect the validity
or enforceability of any other provision hereof.
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(g) All pronouns and any variations thereof refer to the masculine,
feminine or neuter, singular or plural, as the context may require.
(h) The headings in this Agreement are for convenience of reference
only and shall not limit or otherwise affect the meaning hereof.
(i) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same agreement. This Agreement, once executed by a party, may be delivered to
the other party hereto by telephone line facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement under seal as of the day and year first above written.
XXXXXXXX.XXX INCORPORATED
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chief Financial Officer
USA GROUP XXXX-XXXXXX, INC.
By: /s/ J. Xxxxx Xxxx
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Printed Name: J. Xxxxx Xxxx
Title: Treasurer
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