REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into this 15th day of October, 2004, by and between Xxxxx Corporation, an
Indiana corporation ("Xxxxx"), and Venator Merchant Fund L.P., a Delaware
limited partnership (the "Purchaser").
RECITALS
Xxxxx and the Purchaser are entering into a Securities Purchase Agreement
of even date herewith (the "Purchase Agreement"), providing for the purchase by
Purchaser and sale by Xxxxx of 136,643 shares of common stock, par value $0.01
per share, of Xxxxx ("Common Stock"). The shares of Common Stock purchased by
the Purchaser pursuant to the Purchase Agreement are referred to herein as the
"Shares."
This Agreement is being entered into concurrently with the closing of the
transactions contemplated by the Purchase Agreement. The parties hereto desire
that the Shares be subject to the rights and obligations described herein.
NOW, THEREFORE, in consideration of the premises and the covenants,
agreements, representations and warranties set forth herein, and for other good
and valuable consideration, the parties agree as follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
shall have the meanings given them in the Purchase Agreement. As used in this
Agreement:
(a) "Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
(b) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal statute enacted hereafter, and the rules and
regulations of the Commission thereunder, all as the same shall be in effect
from time to time.
(c) "Holder" means the Purchaser or any Transferee complying with the
provisions of Section 19 that holds Registrable Securities.
(d) "Prospectus" means a prospectus forming a part of the Registration
Statement.
(e) The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement by the Commission.
(f) "Registrable Securities" means the Shares, as well as any
securities issued as a dividend or other distribution with respect to, or in
exchange or in replacement of, the Shares.
(g) "Registration Period" has the meaning ascribed to such term in
Section 2.
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(h) "Rule 144" means Rule 144 promulgated under the Securities Act or
any similar rule enacted hereafter, as the same shall be in effect from time to
time.
(i) "Securities Act" means the Securities Act of 1933, as amended, or
any similar federal statute enacted hereafter, and the rules and regulations
promulgated thereunder, all as the same shall be in effect from time to time.
(j) "Transferee" has the meaning ascribed to such term in Section 19.
2. REGISTRATION ON FORM S-3. Xxxxx, at its sole cost and expense, shall
prepare and file with the Commission, within 60 days after the Closing Date, a
registration statement on Form S-3 pursuant to Rule 415 under the Securities
Act, or, in the event that Form S-3 is unavailable to Xxxxx, a registration
statement on such other form (in either event, the "Registration Statement"),
covering the resale of the Shares owned by each Holder, and shall use its best
efforts: (i) to cause the Registration Statement to become effective as promptly
thereafter as possible; and (ii) to maintain the effectiveness of the
Registration Statement for a minimum period of two years, subject to extension
of that period as provided in Section 5 (or, if sooner, until such time, if any,
as the registered Shares are permitted to be sold by each Holder or Transferee
thereof without registration and without limitation pursuant to paragraph (k) of
Rule 144 (the "Registration Period")).
3. REGISTRATION PROCEDURES. In connection with the registration of any
Registrable Securities, Xxxxx shall, as expeditiously as possible:
(a) Prepare and file with the Commission such pre-effective and
post-effective amendments and supplements to the Registration Statement and the
prospectus used in connection with the Registration Statement, and/or file such
reports under the Exchange Act, as may be necessary to cause the Registration
Statement to become effective, to keep the Registration Statement continuously
effective during the Registration Period and not misleading, and as may
otherwise be required or applicable under, and to comply with the provisions of,
the Securities Act with respect to the disposition of all Registrable Securities
covered by the Registration Statement during the Registration Period.
(b) Furnish to each Holder such number of copies of the Prospectus, and
each amendment or supplement thereto, in conformity with the requirements of the
Securities Act, and such other documents as the Holders may reasonably request
in order to facilitate the disposition of Registrable Securities owned by it.
(c) Promptly notify each Holder: (i) when a Prospectus or any
Prospectus supplement or post-effective amendment is proposed to be filed and,
with respect to any post-effective amendment, when the same has become
effective, (ii) of any request by the Commission or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or a Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) of the
receipt by Xxxxx of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
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Securities for sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, and (v) of the occurrence of any event or
circumstance that makes any statement made in the Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of any
changes in the Registration Statement, Prospectus or documents so that, in the
case of the Registration Statement and any amendment or supplement thereto, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(d) Make every reasonable effort to avoid the issuance of, or, if
issued, obtain the withdrawal of, any order suspending the effectiveness of the
Registration Statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of any of the Registrable Securities for sale
in any jurisdiction, at the earliest practicable moment.
(e) If requested by any of the Holders, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information as such
Holders reasonably request be included therein regarding such Holders or the
plan of distribution of the Registrable Securities and (ii) make all required
filings of the Prospectus supplement or such post-effective amendment as soon as
practicable after Xxxxx has received notification of such matters to be
incorporated in such Prospectus supplement or post-effective amendment;
provided, however, that Xxxxx shall not be required to take any action pursuant
to this Section 3(e) that would, in the opinion of counsel to Xxxxx, violate
applicable law.
(f) Upon the occurrence of any event contemplated by Section 3(c), as
promptly as practicable, prepare and deliver to the Holders any required
supplement or amendment, including a post-effective amendment, to the
Registration Statement or a supplement to the Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any
other required document, including such reports as may be required to be filed
under the Exchange Act, so that, as thereafter delivered, the Prospectus will
not contain 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,
in light of the circumstances under which they were made, not misleading.
(g) Use its best efforts to cause all Registrable Securities the resale
of which is registered under cover of the Registration Statement to be listed on
the American Stock Exchange or such other securities exchange or automated
quotation system, if any, as is then the principal securities exchange or
automated quotation system on which the Common Stock is then listed.
(h) Use its best efforts to cause all Registrable Securities registered
by the Registration Statement to be registered or qualified under the securities
or "blue sky" laws of such states as the Holders shall reasonably request;
provided, however, that Xxxxx shall not be required to qualify generally to do
business in any jurisdiction where it is not then so qualified or to take any
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action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or to subject itself to any
material tax in any such jurisdiction where it is not then so subject.
(i) Cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing the Registrable Securities to be sold
pursuant to the Registration Statement free of any restrictive legends and in
such denominations and registered in such names as the Holders may reasonably
request a reasonable period of time prior to sales of the Registrable Securities
pursuant to the Registration Statement.
4. OBLIGATION TO FURNISH INFORMATION. It shall be a condition precedent to
the obligations of Xxxxx to take any action pursuant to this Agreement with
respect to the Registrable Shares of a Holder that such Holder shall have
furnished to Xxxxx such information regarding it, the Registrable Securities
held by it, and the intended method of disposition of such Registrable
Securities as Xxxxx shall reasonably request and as shall be required in
connection with the action to be taken by Xxxxx.
5. DELAY OR SUSPENSION OF REGISTRATION STATEMENT.
(a) If (i) Xxxxx is engaged in any active program for repurchase of
Common Stock; (ii) Xxxxx is conducting or about to conduct an offering of Common
Stock and Xxxxx is advised by the investment banker engaged by Xxxxx to conduct
the offering that such offering would be affected adversely by the registration
of the offer and sale of the Registrable Securities; (iii) there is material
non-public information regarding Xxxxx that the Board of Directors of Xxxxx (the
"Board") reasonably determines not to be in Xxxxx'x best interest to disclose
and that Xxxxx is not otherwise required to disclose, or (iv) there is a
significant business opportunity (including, but not limited to, the acquisition
or disposition of assets other than in the ordinary course of business or any
merger, consolidation, tender offer or other similar transaction) available to
Xxxxx that the Board reasonably determines not to be in Xxxxx'x best interest to
disclose, Xxxxx may (x) postpone or suspend filing of the Registration Statement
for a period not to exceed 45 consecutive days or (y) postpone or suspend
effectiveness of the Registration Statement for a period not to exceed 45
consecutive days; PROVIDED that Xxxxx may not postpone or suspend effectiveness
of the Registration Statement under this Section 5(a) for more than 120 days in
the aggregate during any consecutive 12-month period; and PROVIDED, FURTHER,
that no such postponement or suspension shall be permitted for consecutive
45-day periods arising out of the same set of facts, circumstances or
transactions.
(b) Upon receipt of any notice from Xxxxx to the Holders of the
happening of any event of the kind described in Section 5(a), each Holder shall
forthwith discontinue disposition of Registrable Securities until such Holder's
receipt of copies of a supplemented or amended Prospectus contemplated by
Section 3(f), or until it is advised in writing (the "Advice") by Xxxxx that the
use of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the Prospectus. If
so directed by Xxxxx, each Holder shall deliver to Xxxxx (at the expense of
Xxxxx) all copies, other than permanent file copies then in each Holder's
possession, of the Prospectus current at the time of receipt of such notice. In
the event Xxxxx shall give any such notice, the Registration Period shall be
extended by the number of days during the period from and including the date of
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the giving of such notice pursuant to Section 3(c) or 5(a) to and including the
date when the Holders shall have received the copy of the supplemented or
amended prospectus contemplated by Section 3(f) or the Advice.
(c) Each Holder whose Registrable Securities are covered by a
Registration Statement filed pursuant to Section 2 hereof agrees, if and to the
extent requested by the managing underwriter or underwriters in the case of an
underwritten offering of Common Stock by Xxxxx or any shareholder of Xxxxx other
than Holders proposing to make sales of Common Stock pursuant to a registration
statement under the Securities Act (to the extent timely notified in writing by
Xxxxx or such managing underwriter or underwriters or such shareholder), not to
effect any public sale or distribution of securities of Xxxxx of any class
included in such Registration Statement, including a sale pursuant to Rule 144
(or any similar rule then in force) under the Securities Act, except as part of
such underwritten registration, during the 10-day period prior to, and a period
of up to 90 days beginning on, the effective date of any underwritten offering
made pursuant to such Registration Statement; provided that, if requested by
such managing underwriter or underwriters or such shareholder of Xxxxx, the
executive officers and directors of Xxxxx shall have similarly agreed; and
provided further that in no event shall the provisions of this Section 5(c)
prevent the sale of Registrable Securities for more than 100 days in any 365-day
period. In the event Xxxxx or the managing underwriter or underwriters or such
shareholder shall give any such notice, the Registration Period shall be
extended by the number of days that the Holders are prohibited from effecting
any such public sale or distribution pursuant to this Section 5(c).
6. EXPENSES OF REGISTRATION. All expenses incurred in connection with the
registration pursuant to Section 2 (excluding any underwriters' discounts and
commissions and fees and disbursements of counsel for the Holders), including,
without limitation all registration and qualification fees, and fees and
disbursements of counsel for Xxxxx, shall be borne by Xxxxx.
7. INDEMNIFICATION.
(a) To the full extent permitted by law, Xxxxx shall, and hereby does
indemnify and hold harmless each Holder, each director, officer, partner and
agent of each Holder, any underwriter (as defined in the Securities Act), and
each person, if any, who controls each Holder, or underwriter within the meaning
of the Securities Act, against any losses, claims, damages or liabilities, joint
or several, to which they may become subject under the Securities Act and
applicable state securities laws 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 the
Registration Statement, including any preliminary Prospectus or final Prospectus
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 in light of the circumstance under which it was made or necessary
to make the statements therein not misleading or arise out of any violation by
Xxxxx of any rule or regulation promulgated under the Securities Act applicable
to Xxxxx and relating to action or inaction required of Xxxxx in connection with
any such registration; and shall reimburse each such person for any legal or
other expenses reasonably incurred by him in connection with investigating or
defending any such loss, claim, damage, liability or action. The indemnity
agreement contained in this Section 7 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
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settlement is effected without the consent of Xxxxx (which consent shall not be
unreasonably withheld) nor shall Xxxxx be liable to a Holder, underwriter or
controlling person 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 an alleged
untrue statement or omission or alleged omission made in connection with the
Registration Statement, preliminary Prospectus, final Prospectus, or amendments
or supplements thereto, in reliance upon and in conformity with information
furnished by such Holder in writing for use in connection with such registration
by or on behalf of such Holder, underwriter or controlling person.
(b) To the full extent permitted by law, each Holder shall indemnify
and hold harmless Xxxxx, each of its directors, each of its officers who have
signed the registration statement, each person, if any, who controls Xxxxx
within the meaning of the Securities Act, and any underwriter for Xxxxx (within
the meaning of the Securities Act), against any losses, claims, damages or
liabilities, joint or several, to which Xxxxx or any such director, officer,
controlling person or underwriter may become subject, under the Securities Act
and applicable state securities laws, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, including any preliminary Prospectus or final
Prospectus 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 light of the circumstances, 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 the Registration Statement, preliminary
or final Prospectus, or amendments or supplements thereto, in reliance upon and
in conformity with information furnished in writing by such Holder for use in
connection with such registration. The indemnity agreement contained in this
Section 7 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 (which consent shall not be unreasonably withheld).
(c) In no event shall the liability of any Holder under Section 7(b) be
greater than the lesser of (a) its pro rata portion of any liability based on
the total liability of all Holders similarly situated, or (b) the dollar amount
of the net proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(d) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action or actual knowledge of a claim that
would, if asserted, give rise to a claim for indemnity hereunder, such
indemnified party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 7, notify the indemnifying party in
writing of the commencement thereof or knowledge 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 qualified counsel. The
failure to notify an indemnifying party promptly of the commencement of any such
action or of the knowledge of any such claim, if materially prejudicial to its
ability to defend such action, shall relieve such indemnifying party of any
liability to the indemnified party under this Section 7, but the omission so to
notify the indemnifying party shall not relieve it of any liability that it may
have to any indemnified party otherwise than under this Section.
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(e) If the indemnification provided for in this Section 7 is for any
reason, other than pursuant to the terms thereof, held to be unavailable to an
indemnified party in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of Xxxxx and each Holder in connection
with the statements or omissions that resulted in such losses, claims, damages,
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact relates to information supplied by Xxxxx or a Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. Xxxxx and each Holder agree that
it would not be just and equitable if contribution pursuant to this Section 7(e)
were determined by pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to above in this
Section 7(e). The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this Section 7(e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim, but shall be subject, in
the case of a Holder, to the limitation of Section 7(c) above. No person guilty
of fraudulent misrepresentation within the meaning of Section 11(d) of the
Securities Act shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. No party shall be liable for
contribution with respect to any loss, claim, damage, liability, or action if
such settlement is effected without the prior written consent of such party,
which consent shall not be reasonably withheld.
8. TERMINATION. This Agreement shall terminate upon expiration of the
Registration Period, provided that the rights and obligations of the parties
pursuant to Section 7 shall survive such termination.
9. RULE 144. During the Registration Period, Xxxxx shall use its best
efforts to file the reports required to be filed by it under the Exchange Act in
a timely manner and, if at any time Xxxxx is not required to file such reports,
it shall, upon the request of any Holder, use its best efforts to make publicly
available other information so long as is necessary to permit sales pursuant to
Rule 144. Xxxxx shall take such further action as any Holder may reasonably
request, all to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act
pursuant to the exemption provided by Rule 144 under the Securities Act. Upon
the request of any Holder, Xxxxx shall deliver to the Holders a written
statement as to whether it has complied with such information requirements.
10. REMEDIES. In case any one or more of the covenants and/or agreements
set forth in this Agreement shall have been breached by Xxxxx or any of the
Holders, the Holders or Xxxxx (as the case may be) may proceed to protect and
enforce its or their rights either by suit in equity and/or by action at law,
including, but not limited to, an action for damages as a result of any such
breach and/or an action for specific performance or injunctive relief with
respect to any such covenant or agreement contained in this Agreement.
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11. NOTICES. All notices, requests, demands or other communications
provided for or permitted to be given pursuant to this Agreement shall be in
writing and shall be deemed to have been duly given when delivered personally
(which personal delivery shall include delivery by responsible overnight
courier), or five days after being sent by registered or certified mail, return
receipt requested, postage prepaid:
(i) If to Xxxxx to:
Xxxxx Corporation
50 Xxxxxxx Plaza, Suite 1250
Providence, Rhode Island 02903
Attention: Chief Executive Officer
Tel: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Tel: (000) 000-0000
If to the Holders to:
Venator Merchant Fund L.P.
Xxx Xxxxxxxxx Xxxxxx
Xxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Tel: (000) 000-0000
All such notices, requests, demands or other communications to be given by or to
the Holders shall be given by or to the Purchaser. By giving to the other
parties at least five days' written notice thereof, any party hereto shall have
the right from time to time and at any time during the term of this Agreement to
change its respective address and each party shall have the right to specify as
its address any other address within the United States of America.
12. GRANT OF OTHER REGISTRATION RIGHTS. From time to time, Xxxxx may xxxxx
registration rights to any other holder or prospective holder of any of the
capital stock of Xxxxx.
13. BINDING AGREEMENT. This Agreement and each provision herein shall be
binding upon and applicable to, and shall inure to the benefit of, Xxxxx, the
Purchaser and their permitted assigns and legal representatives.
14. CONSENTS AND WAIVERS. No consent or waiver, express or implied, by any
party hereto of the breach, default or violation by any other party hereto of
its obligations hereunder shall be deemed or construed to be a consent or waiver
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to or of any other breach, default or violation of the same or any other
obligations of such party hereunder. Failure on the part of any party hereto to
complain of any act of any of the other parties or to declare any of the other
parties hereto in default, irrespective or how long such failure continues,
shall not constitute a waiver by such party of his rights hereunder.
15. APPLICABLE LAW AND CONSENT TO JURISDICTION.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, without giving effect to the principles
of conflicts of law thereof.
(b) The parties hereto hereby irrevocably submit to the exclusive
jurisdiction of the New York state courts, or the United States District Court
for the Southern District of New York, in each case sitting in New York County,
New York over any action or proceeding arising out of or relating to this
Agreement and the transactions contemplated hereby and each of the parties
hereto hereby irrevocably agrees that all claims in respect to such action or
proceeding shall be heard and determined in such New York state or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent legally possible, the defense of an inconvenient forum to the maintenance
of such action or proceeding.
16. PRIOR AGREEMENTS; AMENDMENTS. This Agreement and the Purchase Agreement
supersede any prior or contemporaneous understanding or agreement among the
parties to the Purchase Agreement respecting the subject matter hereof. There
are no arrangements, understandings or agreements, oral or written, among such
parties relating to the subject matter of this Agreement, except those fully
expressed herein or in documents executed contemporaneously herewith, including
the Purchase Agreement. No change or modification of this Agreement shall be
valid or binding upon the parties hereto unless such change or modification or
waiver shall be in writing and signed by Xxxxx and by the Purchaser, and such
change or modification shall be binding on all Holders of Registrable
Securities.
17. HEADINGS. The headings and captions in this Agreement are included for
purposes of convenience only and shall not affect the construction or
interpretation of any of its provisions.
18. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all of
which when taken together shall constitute one and the same instrument. In the
event that any signature is delivered by facsimile transmission, such signature
shall create a valid and binding obligation of the party executing (or on whose
behalf such signature is executed) with the same force and effect as if such
facsimile signature page were an original thereof.
19. TRANSFER OF RIGHTS AND OBLIGATIONS. This Agreement and the rights and
obligations of any Holder under this Agreement may be transferred by such Holder
to an Affiliate of such Holder (any such permitted transferee being referred to
herein as a "Transferee"). As a condition precedent to any such transfer, any
such Transferee must provide written notice of such assignment to Xxxxx, which
notice shall at a minimum include the name and address of such Transferee, the
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Shares with respect to which such transfer is to occur and the number, if any,
of other shares of Common Stock held by such Transferee, and must agree in
writing to be bound by the terms of this Agreement.
20. THIRD PARTY BENEFICIARIES. Xxxxx hereby acknowledges that Transferees
complying with the provisions of Section 19 are express third party
beneficiaries of the obligations of Xxxxx hereunder.
21. GENDER. As used in this Agreement, the neuter gender shall include the
masculine and feminine genders and the masculine gender shall include the
feminine and neuter genders, the singular shall include the plural and the word
"person" shall include a corporation, firm, company, trust and other form of
association or entity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered on the date first above written.
XXXXX CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
VENATOR MERCHANT FUND L.P.
By: Venator Global, LLC, its General Partner
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
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