EXHIBIT 9.1
STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of February 14,
1999, by and among xxxxxxxx.xxx, inc., a Delaware corporation (the
"Company"), Xxxxxxx X. Xxxx, Dancing Bear Investments, Inc., a Florida
corporation ("DBI" and, together with Xxxxxxx X. Xxxx, "Dancing Bear"),
Xxxx X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx and Xxxxxxx X.
Xxxxxx.
WHEREAS, Dancing Bear held warrants (the "Warrants") to purchase an
aggregate of 2,023,009 shares of common stock of the Company, par value
$.001 per share (the "Common Stock").
WHEREAS, Dancing Bear has transferred Warrants exercisable for
100,000, 100,000, 25,000 and 25,000 shares of Common Stock to Xxxx X.
Xxxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxx
(collectively referred to herein as the "Holders"), respectively;
WHEREAS, the parties hereto wish to provide certain restrictions on
the disposition by the Holders of any Warrants held by them and any shares
of Common Stock for which such Warrants may be exercised (the "Warrant
Shares");
WHEREAS, the parties wish to provide for certain arrangements with
respect to the voting of the Warrant Shares in the event the Warrants held
by the Holders are exercised; and
WHEREAS, Messrs. Krizelman and Paternot and Dancing Bear wish to
provide for certain arrangements with respect to the voting of any shares
of Stock held by them.
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Definitions.
For purposes of this Agreement, the following terms shall have the
meanings indicated:
"Acceptance Notice" shall have the meaning given to it in Section 7
hereof.
"Agreement" shall have the meaning given to it in the preamble hereto.
"Beneficially Own" shall have the meaning ascribed thereto in Rule
13d-3 under the Securities Exchange Act of 1934, as amended.
"Board" shall mean the Board of Directors of the Company and any
authorized committee thereof.
"Buyer" shall have the meaning given to it in Section 8 hereof.
"Cause" shall mean with respect to an individual (i) conduct that is
fraudulent or unlawful, (ii) gross negligence or willful misconduct that
discredits or damages the Company, (iii) willful and repeated failure to
perform such individual's duties and such failure to perform adversely
affects the Company, (iv) such individual has become the subject of any
order, judgment, or decree of any court or regulatory authority of
competent jurisdiction which is final and non-appealable, permanently or
temporarily enjoining him or her from engaging in any activity in
connection with the purchase or sale of any security or commodity, or in
connection with any violation of federal or state securities laws or
federal commodities laws, or (v) such individual is found by a court of
competent jurisdiction in a civil action or by the SEC to have violated any
federal or state securities laws, and the judgment in such civil action or
finding by the SEC has not been subsequently reversed, suspended, or
vacated.
"Closing Date" shall have the meaning given to it in Section 7 hereof.
"Common Stock" shall have the meaning given to it in the recitals
hereto.
"Company" shall have the meaning set forth in the preamble hereto.
"Controlled Person" shall mean a Person in which a Holder or Dancing
Bear Beneficially Owns a controlling interest, or a Person which
Beneficially Owns a controlling interest in Dancing Bear.
"Dancing Bear" shall have the meaning given to it in the preamble
hereto.
"Dancing Bear Nominee" shall have the meaning given to it in Section 5
hereof.
"DBI" shall have the meaning given to it in the preamble hereto.
"Diluted Capital Stock" shall mean issued and outstanding shares of
Common Stock (assuming the Warrants have been exercised).
"Founder Nominees" shall have the meaning given to it in Section 5
hereof.
"Holders" shall have the meaning given to it in the recitals hereto
and shall include any other party deemed a "Holder" pursuant to Section 2
or 3 hereof.
"Offered Securities" shall have the meaning given to it in Section 7
hereof.
"Offering Notice" shall have the meaning given to it in Section 7
hereof.
"Options" shall mean options exercisable for Common Stock.
"Permitted Transfer" shall mean a Transfer of Stock, Warrants or
Warrant Shares (i) by a Holder or Dancing Bear to a Controlled Person, or
(ii) by a Holder or Xx. Xxxx, while living, to such Holder's or Xx. Xxxx'x
respective spouse or children or to a trust or trusts for the benefit of
such Holder's or Xx. Xxxx'x respective spouse, children or their issue,
siblings, or parents or, at death, by will, trust or the laws of intestacy.
As a condition to any such Transfer, the transferee shall execute an
instrument in form and substance satisfactory to the Company agreeing to be
bound by the terms of this Agreement as if an original signatory hereto,
and shall execute such further documents, proxies or stock transfer powers
as may be necessary or desirable to implement the provisions hereof.
"Permitted Transferee" shall mean a Person who receives Stock,
Warrants or Warrant Shares in a Permitted Transfer.
"Person" means an individual, a corporation, a joint venture, a
partnership, a limited liability company, a firm, an association, a
business trust or any other entity.
"Preferred Stock" shall mean the preferred stock of the Company, par
value $.001 per share.
"Prospective Buyer" shall have the meaning given to it in Section 7
hereof.
"SEC" shall mean the Securities and Exchange Commission.
"Selling Holder" shall have the meaning given to it in Section 7
hereof.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean the Common Stock, the Preferred Stock and any other
series or class of capital stock of the Company, the holders of which are
entitled to participate generally in the election of members of the Board.
"Tag-Along Notice" shall have the meaning given to it in Section 9
hereof.
"Take-Along Notice" shall have the meaning given to it in Section 8
hereof.
"Take Along Right" shall have the meaning given to it in Section 8
hereof.
"Transfer" means to sell, assign, donate, gift, convey, transfer,
pledge, encumber, hypothecate, grant any option with respect to or
otherwise dispose of any interest in (or enter into any agreement or
understanding with respect to) any of the foregoing.
"Warrants" shall have the meaning given to it in the recitals hereto.
"Warrant Shares" shall have the meaning given to it in the recitals
hereto.
Section 2. Warrants and Warrant Shares Subject to Agreement. Each of
the Holders hereby agrees that, except as may otherwise be provided herein,
this Agreement shall apply to any Warrants Transferred to such Holder by
Dancing Bear on or prior to the date of this Agreement and to any Warrant
Shares that may be issued to any such Holder and shall continue to apply to
any Warrants and Warrant Shares Transferred by such Holder to any Permitted
Transferee. Unless otherwise provided herein, as a condition to the
transfer of Warrants or Warrant Shares to any Permitted Transferee, all
such Permitted Transferees shall expressly become parties to this
Agreement, shall be subject to the same rights and restrictions as the
Holders and, unless the context indicates otherwise, all references to
"Holder" or "Holders" herein shall include such transferees.
Section 3. Stock Subject to Agreement. Each of the Holders and Dancing
Bear hereby agrees that, except as may otherwise be provided herein, this
Agreement shall apply to any Stock currently held by them on the date
hereof, any Stock subsequently acquired by them whether by purchase,
option, gift, bequest or otherwise, or any Stock Transferred by them to a
Permitted Transferee. Unless otherwise provided herein, as a condition to
the transfer of warrant or warrant Shares to any Permitted Transferee, all
such Permitted Transferees shall expressly become parties to this
Agreement, shall be subject to the same rights and restrictions as Dancing
Bear or the Holders, as applicable, and, unless the context indicates
otherwise, all references to "Holder" or "Holders" herein shall include
such transferees.
Section 4. Transfers of Warrants and Warrant Shares. No Holder shall
Transfer all or any part of his or her Warrants or Warrant Shares without
the prior written consent of Dancing Bear, except (i) to a Permitted
Transferee of such Holder, or (ii) as expressly permitted by Section 7
hereof.
Section 5. Board Representation.
(a) Board of Directors. Each of Messrs. Xxxx, Krizelman and Paternot
agree not to vote to decrease the number of directors on the Board to be
less than nine members without the prior written consent of the others.
Nominees for election to the Board shall be designated as follows: (i)
Dancing Bear (or its Permitted Transferees) shall, subject to applicable
law, have the right to designate up to five nominees to the Board (each
such designee being hereinafter referred to as a "Dancing Bear Nominee");
and (ii) Messrs. Krizelman and Paternot (or their Permitted Transferees)
shall, subject to applicable law, collectively have the right to designate
up to two individuals for nomination to the Board (such designees being
hereinafter referred to as the "Founder Nominees"). Each of Dancing Bear
and Messrs. Krizelman and Paternot (and their respective Permitted
Transferees) shall vote, or cause to be voted, all shares of Stock
Beneficially Owned by them at any regular or special meeting of
stockholders called for the purpose of filling positions on the Board, or
in any written consent executed in lieu of such a meeting of stockholders,
in favor of the election of each Dancing Bear Nominee and each Founder
Nominee. Dancing Bear and Messrs. Krizelman and Paternot (or their
respective Permitted Transferees) shall not vote to remove any member of
the Board elected in accordance with the foregoing provisions except for
Cause or with respect to any person nominated by such Person.
Notwithstanding the foregoing, each of Dancing Bear and Messrs. Krizelman
and Paternot (or their respective Permitted Transferees) shall vote, or
cause to be voted, all shares of Stock Beneficially Owned by it or him in
favor of the removal of any Dancing Bear Nominee, upon the request of
Dancing Bear, or any Founder Nominee, upon the request of Messrs. Krizelman
and Paternot.
(b) Replacement Directors. If following election to the Board, any
Dancing Bear Nominee or Founder Nominee shall resign, be removed, or be
unable to serve for any reason prior to the expiration of his or her term
as a director of the Company, Dancing Bear (or its Permitted Transferees)
in the case of a Dancing Bear Nominee, or Messrs. Krizelman and Paternot
(or their Permitted Transferees) in the case of a Founder Nominee
(following the same procedure for designating such nominees set forth in
Section 5(a)), shall be entitled to designate a replacement nominee.
Following such designation, each of Dancing Bear and Messrs. Krizelman and
Paternot (and their respective Permitted Transferees) shall vote, or cause
to be voted, all shares of Stock Beneficially Owned by them in favor of the
election to the Board of such replacement nominee at any special meeting of
stockholders called for such purpose, or in any written consent executed in
lieu of such a meeting.
(c) Further Action. In order to effectuate the provisions of this
Section 5, each of Dancing Bear and Messrs. Krizelman and Paternot (and
their respective Permitted Transferees) agrees that, in addition to voting,
or causing to be voted, all shares of Stock Beneficially Owned by it or him
in favor of the election to the Board of each Dancing Bear Nominee, each
Founder Nominee, and any replacement nominee designated in accordance with
Section 5(b) hereof, such party will take, or use such party's best efforts
to cause to be taken, all such further action which they may take in their
capacity as stockholders of the Company and as may be necessary to ensure
the election of such nominees to the Board; provided, however, that no
party shall be required to solicit the vote of any other stockholder of the
Company.
Section 6. Voting of Warrant Shares. Each Holder hereby grants to
Dancing Bear an irrevocable proxy to vote all Warrant Shares for which any
Warrants held by them have been exercised, with full power of substitution,
in Dancing Bear's full discretion for all matters subject to stockholder
vote. Each Holder acknowledges that this proxy is coupled with an interest
and agrees not to give any other proxy or proxies in derogation of this
proxy as long as this Agreement is in force. Such proxy shall remain in
effect with respect to each Warrant or Warrant Share held by a Holder until
such time as a Holder has Transferred such Warrant or Warrant Share
pursuant to Section 7 hereof to a third party (other than a Permitted
Transferee).
Section 7. Right of First Refusal for Warrants and Warrant Shares.
(a) If at any time any Holder or any Permitted Transferee of a Holder
desires to Transfer Warrants or Warrant Shares (a "Selling Holder") in a
bona fide arm's-length transaction to any third party (a "Prospective
Buyer") (other than (x) in a Permitted Transfer, (y) pursuant to a
registration statement under the Securities Act or (z) in a sale pursuant
to Rule 144 under the Securities Act (or any successor provision) effected
through the Nasdaq National Market or any other national securities
exchange on which the Common Stock is listed; provided that a Holder may
only use the exceptions under (x) and (y) if he or she does not own any
other shares of Stock which could otherwise be transferred), the Selling
Holder shall give written notice thereof (an "Offering Notice") to Dancing
Bear. The Offering Notice shall state (i) the number of Warrants or Warrant
Shares proposed to be sold (the "Offered Securities"), (ii) the name and
address of the Prospective Buyer, (iii) the price per Offered Security
(which shall be payable in cash) at which the Selling Holder has a
reasonable and bona fide intention to Transfer the Offered Securities to
the Prospective Buyer (which may be the market price in the case of a
public sale), and (iv) the method of payment and other terms and conditions
of the proposed Transfer.
(b) Dancing Bear (or its Permitted Transferees) shall have the
irrevocable option, but not an obligation, to purchase from the Selling
Holder all, but not less than all, of the Offered Securities. To exercise
such option, Dancing Bear shall, within 20 business days of its receipt of
the Offering Notice, deliver to the Selling Holder a notice of its
intention to exercise such option (an "Acceptance Notice"). By so
delivering an Acceptance Notice, Dancing Bear shall be committed to
exercise such option and purchase the Offered Securities at the per
security purchase price specified in the Offering Notice. The exercise of
such option and the purchase and sale of the Offered Securities resulting
from the exercise of such option shall take place at the principal offices
of Dancing Bear on the fifth business day following the date of delivery of
the Acceptance Notice, or at such other place, on such other date, or both,
as the Selling Holder and Dancing Bear shall agree upon in writing (the
"Closing Date"). On the Closing Date, the Selling Holder shall deliver (i)
the certificate(s) representing the number of Offered Securities to Dancing
Bear (or its Permitted Transferees) in proper form for transfer with
appropriate stock powers executed in blank attached and with all
documentary or transfer tax stamps affixed, (ii) a certificate representing
that Dancing Bear (or its Permitted Transferees) will receive good title to
the securities represented by such certificate(s), free and clear of all
liens, security interests, pledges, charges, encumbrances, stockholders'
agreements and voting trusts (other than this Agreement), against payment
of the purchase price therefor by a wire transfer of funds to a bank
account designated by the Selling Holder or by certified or official bank
check or checks, and (iii) a legal opinion relating to such matters as may
be reasonably requested by Dancing Bear.
(c) If Dancing Bear (or any of its Permitted Transferees) does not
elect to purchase the Offered Securities, the Selling Holder shall be free,
during the 30-day period commencing on the date the option granted pursuant
to this Section 7 expires unexercised, to Transfer all but not less than
all of the Offered Securities to the Prospective Buyer at a per security
price that shall not be less than the price specified in the Offering
Notice. After such 30-day period, the Selling Holder shall not sell any
Warrants and Warrant Shares without again complying with the provisions of
this Section 7.
Section 8. Take-Along Right for Stock.
(a) If at any time Dancing Bear (or any of its Permitted Transferees)
proposes to sell or exchange (in a business combination or otherwise) in
one or a series of related or contemporaneous bona fide arm's-length
transactions to any third party (a "Buyer") (other than (x) in a Permitted
Transfer, (y) pursuant to a registration statement under the Securities Act
or (z) in a sale pursuant to Rule 144 under the Securities Act (or any
successor provision) effected through the Nasdaq National Market or any
other national securities exchange on which the Common Stock is listed),
shares of Stock (including Stock issued upon exercise of Options at or
prior to the consummation of such transaction), Warrants or Warrant Shares
that equal or exceed 25% in the aggregate of the Diluted Capital Stock of
the Company, then, subject to the last sentence of this paragraph, Dancing
Bear (or its Permitted Transferees) shall have the right (a "Take-Along
Right") to require each Holder and such Holder's Permitted Transferees to
sell or exchange up to the same percentage of the Diluted Capital Stock
then Beneficially Owned by such Holder (or such Permitted Transferee) as is
set forth in the Take-Along Notice (defined below) given by Dancing Bear,
in such transaction or series of related or contemporaneous transactions,
on the same terms and subject to the same conditions (including but not
limited to obligations with respect to indemnification) as the sale or
exchange by Dancing Bear (and its Permitted Transferees). To exercise a
Take-Along Right, Dancing Bear shall give written notice thereof (a
"Take-Along Notice") to each Holder and such Holder's Permitted
Transferees. The Take-Along Notice shall state (i) the name and address of
such Buyer, (ii) the price per security and the form of consideration that
such Buyer proposes to pay for the purchased securities, (iii) the
percentage of Diluted Capital Stock Beneficially Owned by Dancing Bear (and
its Permitted Transferees) that is being sold or exchanged, and (iv) the
method of payment and other terms and conditions of the proposed sale or
exchange.
(b) The exercise of any Take-Along Right and the purchase and sale of
Stock, Warrants and Warrant Shares resulting from the exercise of such
Take-Along Right shall take place at the principal offices of Dancing Bear
on the fifth business day following the date of delivery of any Take-Along
Notice, or at such other place, on such other date, or both, as the
aforementioned Buyer and Dancing Bear shall agree upon in writing.
Section 9. Tag-Along Rights for Stock.
(a) If at any time Dancing Bear (or any of its Permitted Transferees)
proposes to sell or exchange (in a business combination or otherwise) in
one or a series of related or contemporaneous bona fide arm's-length
transactions to any Buyer (other than (x) in a Permitted Transfer, (y)
pursuant to a registration statement under the Securities Act or (z) in a
sale pursuant to Rule 144 under the Securities Act (or any successor
provision) effected through the Nasdaq National Market or any other
national securities exchange on which the Common Stock is listed), shares
of Stock (including Stock issued upon exercise of Options at or prior to
the consummation of such transaction), Warrants or Warrant Shares that
equal or exceed 25% of the Diluted Capital Stock of the Company, Dancing
Bear shall so notify (a "Tag-Along Notice") each Holder and such Holder's
Permitted Transferees. The Tag-Along Notice shall state (i) the name and
address of such Buyer, (ii) the price per security and the form of
consideration that such Buyer proposes to pay for the purchased Stock,
Warrants or Warrant Shares, (iii) the percentage of the Diluted Capital
Stock Beneficially Owned by Dancing Bear (and its Permitted Transferees)
that is being sold or exchanged, and (iv) the method of payment and other
terms and conditions of the proposed sale or exchange. Each Holder and such
Holder's Permitted Transferees shall have the option, exercisable by
written notice to Dancing Bear, within 10 days after Dancing Bear (a
"Tag-Along Period") delivers a Tag-Along Notice stating its intention to
effect such sale or exchange, to sell or exchange up to the same percentage
of the Diluted Capital Stock Beneficially Owned by such Holder and such
Holder's Permitted Transferees as is stated in the Tag-Along Notice
delivered by Dancing Bear, in such transaction or series of related or
contemporaneous transactions on the same terms and subject to the same
conditions (including but not limited to obligations with respect to
indemnification) as the sale or exchange by Dancing Bear (and its Permitted
Transferees), and, if such option is exercised, Dancing Bear (and its
Permitted Transferees) shall not proceed with such sale or exchange unless
any Holder who has exercised such option is given the right to so
participate.
(b) If at any time Xx. Xxxxxxxxx or Xx. Xxxxxxxx (or any of either's
Permitted Transferees), individually or collectively, proposes to sell or
exchange (in a business combination or otherwise) in one or a series of
related or contemporaneous bona fide arm's-length transactions to any Buyer
(other than (x) in a Permitted Transfer, (y) pursuant to a registration
statement under the Securities Act or (z) in a sale pursuant to Rule 144
under the Securities Act (or any successor provision) effected through the
Nasdaq National Market or any other national securities exchange on which
the Common Stock is listed), shares of Stock (including Stock issued upon
exercise of Options at or prior to the consummation of such transaction),
Warrants or Warrant Shares that equal or exceed 7% of the Diluted Capital
Stock of the Company, Messrs. Krizelman and Paternot shall deliver a
Tag-Along Notice to Dancing Bear, each other Holder and such parties'
Permitted Transferees. The Tag-Along Notice shall state (i) the name and
address of the Buyer, (ii) the price per security and the form of
consideration that the Buyer proposes to pay for the purchased Stock,
Warrants or Warrants Shares, (iii) the collective percentage of the Diluted
Capital Stock owned by both Messrs. Krizelman and Paternot (and their
Permitted Transferees) that is being sold or exchanged, and (iv) the method
of payment and other terms and conditions of the proposed sale or exchange.
Dancing Bear, each Holder and such Parties' Permitted Transferees shall
have the option, exercisable by written notice to Messrs. Krizelman and
Paternot, within 10 days (a "Tag-Along Period") after Messrs. Krizelman and
Paternot deliver a Tag-Along Notice stating their intention to effect such
sale or exchange, to sell or exchange up to the same percentage of the
Diluted Capital Stock then Beneficially Owned by each of Dancing Bear, such
Holder and such Parties' Permitted Transferees as is stated in the
Tag-Along Notice delivered by Messrs. Krizelman and Paternot, in such
transaction or series of transactions on the same terms and subject to the
same conditions (including but not limited to obligations with respect to
indemnification) as the sale or exchange by Messrs. Krizelman and Paternot
(and their Permitted Transferees), and, if such option is exercised,
Messrs. Krizelman and Paternot (and their Permitted Transferees) shall not
proceed with such sale or exchange unless the parties who have exercised
such option are given the right to so participate.
(c) In the event that there is a limitation on the aggregate number of
securities which may be included in a sale or exchange as provided by this
Section 9, each party may participate pro rata based upon the number of
securities proposed to be sold or exchanged by all such parties.
(d) Notwithstanding anything to the contrary set forth in this Section
9, no Warrants or Warrant Shares may be sold or exchanged by any Holder or
their Permitted Transferees pursuant to this Section 9 unless such sale or
exchange is in accordance with Dancing Bear's right of first refusal set
forth in Section 7 hereof.
(e) The exercise of any Tag-Along Right and the purchase and sale of
Stock, Warrants or Warrant Shares resulting from the exercise of such
Tag-Along Right shall take place at the principal offices of the Company on
the fifth business day following the end of the applicable Tag-Along
Period, or at such other place, on such other date, or both, as the Buyer
and the deliverer of the Tag-Along Notice shall agree upon in writing.
Section 10. Legend. The following legend shall be noted conspicuously
on all certificates representing shares of Stock, Warrants or Warrant
Shares heretofore or hereafter issued which are subject to the terms of
this Agreement:
"The securities represented by this certificate are subject to
restrictions on transfer and voting, as provided in a Stockholders'
Agreement, dated as of February 14, 1999, among xxxxxxxx.xxx, inc.
(the "Company") and certain of its securityholders, a copy of which is
on file with the Secretary of the Company. No sale, assignment,
transfer, pledge, encumbrance or other disposition shall be effective
unless and until the terms and conditions of that Stockholders'
Agreement shall have been complied with in full."
The Company will agree to cause the foregoing legend to be removed
upon receipt of a certificate from the holder of the Stock, Warrants or
Warrant Shares in a form acceptable to the Company that it is appropriate
to remove such legend.
Section 11. No Inconsistent Agreements. The Company will not hereafter
enter into any agreement with respect to its securities, and neither the
Company nor any other party hereto shall take any action that is
inconsistent in any material respect with the rights granted to or
obligations undertaken by the parties to this Agreement.
Section 12. Termination. This Agreement, and the obligations of the
parties hereto, shall terminate:
(a) with respect to a Holder's Warrants and Warrant Shares, at such
time as all of such Warrants and Warrant Shares have been transferred to a
third party (other than a Permitted Transferee) in accordance with the
terms of this Agreement;
(b) with respect to a party's Stock, upon such time as all of such
party's Stock has been transferred to a third party (other than a Permitted
Transferee) in accordance with the terms of this Agreement;
(c) in its entirety, with the exception of the provisions contained in
Sections 6 and 7 hereof, in the event that Dancing Bear and its Permitted
Transferees hold less than 10% of the Diluted Capital Stock of the Company;
or
(d) in its entirety on the tenth anniversary of the date of this
Agreement.
Section 13. Availability of Equitable Remedies. Since a breach of the
provisions of this Agreement could not adequately be compensated by money
damages, any non-breaching party shall be entitled, in addition to any
other right or remedy available, to an injunction restraining such breach
and to specific performance of any such provision of this Agreement, and in
either case no bond or other security shall be required in connection
therewith, and each party hereto hereby consents to such injunction and to
the ordering of such specific performance.
Section 14. Modification. This Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter
hereof, supersedes all existing agreements among them concerning such
subject matter, and may be modified only by a written instrument duly
executed by each party hereto at the time of any such modification;
provided, however, that any Permitted Transferee may become a party to this
Agreement upon the execution of an instrument in form and substance
satisfactory to the Company agreeing to be bound by the terms of this
Agreement as if an original signatory hereto, with no further action
required by any other party hereto.
Section 15. Notices. Any notice under or relating to this Agreement
shall be given in writing and shall be deemed sufficiently given when
delivered by hand or by conformed facsimile transmission, on the second
business day after a writing is consigned (freight prepaid) to a commercial
overnight courier, and on the fifth business day after a writing is
deposited in the mail, postage and other charges prepaid, addressed as
follows:
The Company:
xxxxxxxx.xxx,inc.
00 Xxxx 00 Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
Xxxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
Dancing Bear:
Dancing Bear Investments, Inc.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
Xxxx X. Xxxxxxxxx:
c/o xxxxxxxx.xxx, inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Xxxxxxx X. Xxxxxxxx:
c/o xxxxxxxx.xxx, inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Xxxxxx X. Xxxxxxxx:
c/o Dancing Bear Investments, Inc.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Xxxxxxx X. Xxxxxx:
c/o Dancing Bear Investments, Inc.
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
or to such other address or telecopy number as any party may, from time to
time, designate in a written notice given in a like manner.
Any notice or other communication to be given hereunder to a Permitted
Transferee may be given by any party hereto to Xxxx X. Xxxxxxxxx (in the
case of a Permitted Transferee of Xxxx X. Xxxxxxxxx), to Xxxxxxx X.
Xxxxxxxx (in the case of a Permitted Transferee of Xxxxxxx X. Xxxxxxxx) to
Xxxxxx X. Xxxxxxxx (in the case of a Permitted Transferee of Xxxxxx X.
Xxxxxxxx) to Xxxxxxx X. Xxxxxx (in the case of a Permitted Transferee of
Xxxxxxx X. Xxxxxx) and to Dancing Bear (in the case of a Permitted
Transferee of Dancing Bear), in accordance with the provisions of this
Section 15.
Section 16. Waiver. Any waiver by any party of a breach of any
provision of this Agreement shall not operate as, or be construed to be, a
waiver of any other breach of such provision or of any breach of any other
provision of this Agreement. The failure of a party to insist upon strict
adherence to any term of this Agreement on one or more occasions shall not
be considered a waiver or deprive that party of the right thereafter to
insist upon strict adherence to that term or any other term of this
Agreement. Any waiver of any provision of this Agreement must be in
writing.
Section 17. Binding Effect. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective permitted successors, assigns, heirs, and personal
representatives.
Section 18. Separability. If any provision of this Agreement is deemed
invalid, illegal, or unenforceable, the balance of this Agreement shall
remain in effect, and if any provision is inapplicable to any person or
circumstance, it shall nevertheless remain applicable to all other persons
and circumstances.
Section 19. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 20. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without
giving effect to the rules of such state respecting conflicts of law.
IN WITNESS WHEREOF, the parties hereto have duly executed or have
caused their duly authorized officers to execute this Agreement as of the
date first written above.
XXXXXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Co-Chief Executive
Officer and
Co-President
DANCING BEAR INVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
/s/ Xxxxxxx X. Xxxx
---------------------------------
Xxxxxxx X. Xxxx
/s/ Xxxx X. Xxxxxxxxx
---------------------------------
Xxxx X. Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx
