EXHIBIT 10.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of ____________, 1997, by and among Precept Investors, Inc., a Texas
corporation ("Precept"), and Xxxxxxx Xxxxxxxxx and The Xxxxxxxxx Family Trust
(collectively, the "Stockholder").
This Agreement is made pursuant to the terms of the Agreement and Plan of
Reorganization dated November ___, 1997 (the "Plan of Reorganization") by and
between U.S. Transportation Systems, Inc., a Nevada corporation ("USTS"),
Precept and Precept Acquisition Company, LLC, a Nevada limited liability
company and wholly owned subsidiary of Precept. In order to induce the
Stockholder to enter into an Employment Agreement with Precept, Precept has
agreed to provide the registration rights on the terms set forth in this
Agreement for the benefit of the Stockholder.
The parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms not otherwise defined herein shall
have the same meaning attributed to them as in the Plan of Reorganization.
2. PIGGYBACK REGISTRATION RIGHTS. At any time during the Piggyback Period
(as hereinafter defined), if Precept proposes to register any Precept Common
Stock for its own or others' account under the Securities Act of 1933, as
amended (the "Securities Act"), in a public offering for cash and
specifically excluding a registration relating to employee benefit plans or
issuance of shares in connection with an acquisition transaction (an
"Offering"), Precept will give the Stockholder prompt verbal notice of its
intent to do so at least thirty (30) days prior to the filing of the related
registration statement with the SEC, and written notice of its intent to do
so (a "Registration Notice") at least ten (10) business days prior to such
filing. Such notice shall specify the approximate date on which Precept
proposes to file such registration statement and shall contain a statement
that the Stockholder is entitled to participate in such offering and shall
set forth the number of shares of Registrable Common (as hereinafter defined)
that represents the best estimate of the lead managing underwriter (or if not
known or applicable, Precept) that will be available for sale by the
Stockholder in the proposed offering. If Precept shall have delivered a
Registration Notice, the Stockholder shall be entitled to participate on the
same terms and conditions as Precept in the public offering to which such
Registration Notice relates and to offer and sell shares of Registrable
Common therein only to the extent provided in this SECTION 2. If the
Stockholder desires to participate in the Offering, the Stockholder shall
notify Precept in writing no later than five (5) business days following the
date the Registration Notice is sent of the aggregate number of shares of
Registrable Common that the Stockholder desires to sell in the Offering. The
Stockholder so desiring to participate in the Offering may include shares of
Registrable Common in the registration statement relating to the Offering to
the extent that the inclusion of such shares shall not reduce the number of
shares of Precept Common Stock to be offered and sold by Precept to be
included therein. If the lead managing underwriter selected by Precept for
the Offering (or, if the Offering is not underwritten, a financial advisor to
Precept) determines that marketing factors require a limitation on the number
of shares of Registrable Common to be offered and sold in the Offering, there
shall be included in the Offering only that
number of shares of Registrable Common, if any, that such lead managing
underwriter or financial advisor, as the case may be, reasonably and in good
faith believes will not jeopardize the success of the Offering.
As used herein, "Piggyback Period" means the period of time commencing on
the date of this Agreement and expiring on the earlier to occur of (i) the
close of business on the eighteen (18) month anniversary of the date of this
Agreement or (ii) the Stockholder's failure to include in any Offering with
respect to which the Stockholder received a Registration Notice (which
offered him the opportunity to register all of the Registrable Common Stock
then owned by the Stockholder) after the eight (8) month anniversary of the
date of this Agreement the maximum number of shares of Registrable Common
which the Stockholder was entitled to include pursuant to this Agreement, in
accordance with the terms of this Agreement.
As used herein, "Registrable Common" means all shares of Precept Common
Stock to be acquired by the Stockholder with respect to his securities of
USTS pursuant to the terms of the Plan of Reorganization and the USTS Plan of
Liquidation and Dissolution, and any additional shares of Precept Common
Stock issued or distributed in respect of any such shares by way of stock
dividend or distribution or stock split or in connection with a combination
of shares, recapitalization, reorganization, merger, consolidation or
otherwise. For purposes of this Agreement, shares of Registrable Common will
cease to be Registrable Common when and to the extent that (i) a registration
statement covering such shares has been declared effective under the
Securities Act and such shares have been disposed of pursuant to such
effective registration statement, (ii) such shares have been distributed to
the public pursuant to Rule 144 (or any similar provision then in force)
under the Securities Act, or (iii) such shares have been otherwise
transferred to another party and new certificates for such shares of
Registrable Common not bearing a legend restricting further transfer shall
have been delivered by Precept; PROVIDED, HOWEVER, that all shares of
Registrable Common held by the Stockholder shall immediately cease to be
Registrable Common if such shares of Registrable Common constitute less than
one percent (1%) of Precept's then outstanding Common Stock when the resale
provisions of Rule 144(k) promulgated under the Securities Act are available
to the Stockholder, or the Stockholder is otherwise entitled to sell the
shares of Registrable Common held by him without registration under the
Securities Act and without limitation as to volume or manner of sale or both.
3. DEMAND REQUEST AND PUT AGREEMENT.
The Stockholder shall be entitled to deliver to the Company no later than
thirty (30) days prior to the expiration of the Piggyback Period a written
request that Precept cause a registration statement be filed on behalf of the
Stockholder with the SEC covering the sale of any Registrable Common then
held by the Stockholder (a "Demand Request"). In the event that (a) Precept
receives a Demand Request, (b) the Piggyback Period does not expire prior to
the eighteen (18) month anniversary of the date of this Agreement pursuant to
SECTION 2 (as a result of the Stockholder's failure to include in any
Offering the maximum number of shares of Registrable Common which the
Stockholder was entitled to include), and (c) Precept fails to cause a
registration statement covering the sale of the Registrable Common to be
declared effective by the SEC on or prior to the eighteen (18) month
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anniversary of the date of this Agreement, then the Stockholder shall have
the right and option and may elect from time to time and at any time after
the expiration of the Piggyback Period, but not later than ninety (90) days
after the expiration of the Piggyback Period, to require in writing (the
"Put Notice") that Precept purchase all or any portion of any Registrable
Common then held by the Stockholder at a price per share equal to the average
closing price for Precept Common Stock over the 30 trading days ending three
(3) trading days prior to the date Precept receives the Put Notice. The
closing of such sale, and payment for the shares, shall occur within fifteen
(15) days after the date Precept receives the Put Notice.
4. REGISTRATION AND SALE PROCEDURES.
(a) In connection with any registration under SECTION 2 or SECTION 3
hereof, Precept shall (a) use commercially reasonable efforts to prepare and
file with the SEC as soon as reasonably practicable, a registration statement
with respect to the Registrable Common and use commercially reasonable
efforts to cause such registration to promptly become and remain effective
for a period of at least 120 days (or such shorter period during which
holders shall have sold all Registrable Common which they requested to be
registered) provided, however, that such 120 day period shall be extended for
a period equal to the period that the Stockholder agrees to refrain from
selling any securities included in such registration in accordance with
SECTION 4(b) or SECTION 8 hereof; (b) prepare and file with the SEC such
amendments (including post-effective amendments) to such registration
statement and supplements to the related prospectus to appropriately reflect
the plan of distribution of the securities registered thereunder until the
completion of the distribution contemplated by such registration statement or
for so long thereafter as a dealer is required by law to deliver a prospectus
in connection with the offer and sale of the shares of Registrable Common
covered by such registration statement and/or as shall be necessary so that
neither such registration statement nor the related prospectus shall contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading and so that such registration statement and the related prospectus
will otherwise comply with applicable legal requirements; (c) use
commercially reasonable efforts to register and qualify the Registrable
Common covered by such registration statement under applicable securities or
"Blue Sky" laws of such jurisdictions as the holders shall reasonably request
for the distribution of the Registrable Common; (d) take such other actions
as are reasonable and necessary to comply with the requirements of the
Securities Act and the rules and regulations thereunder; (e) furnish such
number of prospectuses (including preliminary prospectuses) and documents
incident thereto as the Stockholder from time to time may reasonably request;
(f) list or include such Registrable Common on any securities exchange on
which any stock of Precept is then listed or included, if the listing or
inclusion of such Registrable Common is then permitted under the rules of
such exchange; (g) use commercially reasonable efforts to keep the
Stockholder informed of Precept's best estimate of the earliest date on which
such registration statement or any post-effective amendment thereto will
become effective and will notify the Stockholder and any managing
underwriters participating in the distribution pursuant to such registration
statement promptly (i) when Precept is informed that such registration
statement or any post-effective amendment to such registration statement
becomes effective, (ii) of any request by the SEC for an amendment or any
supplement to such registration statement or any related prospectus, (iii) of
the issuance by the SEC of any stop order suspending the
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effectiveness of such registration statement or of any order preventing or
suspending the use of any related prospectus or the initiation or threat of
any proceeding for that purpose, (iv) of the suspension of the qualification
of any shares of Registrable Common included in such registration statement
for sale in any jurisdiction or the initiation or threat of a proceeding for
that purpose, (v) of any determination by Precept that an event has occurred
which makes untrue any statement of a material fact made in such registration
statement or any related prospectus or which requires the making of a change
in such registration statement or any related prospectus in order that the
same will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (vi) of the completion of the
distribution contemplated by such registration statement if it relates to an
offering by Precept; (h) in the event of the issuance of any stop order
suspending the effectiveness of such registration statement or of any order
suspending or preventing the use of any related prospectus or suspending the
qualification of any shares of Registrable Common included in such
registration statement for sale in any jurisdiction, use its best efforts
promptly to obtain its withdrawal; and (i) otherwise use its best efforts to
comply with all applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably practicable, but not
later than fifteen months after the effective date of such registration
statement, an earnings statement covering the period of at least twelve
months beginning with the first full fiscal quarter after the effective date
of such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
(b) The Stockholder agrees to provide Precept with written notice at
least three (3) but not more than ten (10) business days prior to selling any
shares of Registrable Common pursuant to a registration statement filed in
connection with any Offering. If, upon receipt of such a notice, Precept
certifies to the Stockholder in writing that (i) due to a change in
circumstances, a pending transaction, financing, offering, reorganization or
similar situation, the registration statement contains an untrue statement of
a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and (ii)
the public disclosure required to correct such misstatement or omission would
be, in the sole determination of Precept, injurious to Precept, then the
Stockholder will refrain from selling any of the Registrable Common pursuant
to the registration statement for the period of time, not to exceed 45 days
in each instance, requested by Precept. Precept will use commercially
reasonable efforts to minimize the time period during which the Stockholder
is required to refrain from selling any Registrable Common under this
paragraph.
5. UNDERWRITING AGREEMENT. In connection with a registration pursuant to
SECTION 2 or SECTION 3 hereof covering an underwritten Offering to include
shares of Registrable Common, Precept and the Stockholder agree to enter into
a written agreement with the managing underwriter, if any, in such form and
containing such provisions as are customary in the securities business for
such an arrangement between such underwriter and companies of Precept's size
and investment stature, including provisions for indemnification by Precept,
and, whether or not an underwriting agreement is entered into, Precept shall:
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(a) make such representations and warranties to the Stockholder and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters in comparable underwritten offerings;
(b) obtain opinions of counsel to Precept and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the holders of a
majority in number of the shares Registrable Common being sold) addressed to
such holders and the underwriters, if any, covering the matters customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such holders and the underwriters,
if any;
(c) obtain "cold comfort" letters and updates thereof from Precept's
independent certified public accountants addressed to the selling holders of
Registrable Common and the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters by independent accountants in connection with underwritten
offerings on such date or dates as may be reasonably requested by the
managing underwriter and Stockholder; and
(d) deliver such documents and certificates as may be reasonably
requested by the Stockholder and the managing underwriters, if any, to
evidence compliance with clause (g) of SECTION 4 and with any customary
conditions contained in the underwriting agreement, if any.
6. AVAILABILITY OF RULE 144. Notwithstanding anything contained herein to
the contrary (including SECTIONS 2 AND 3 hereof), Precept shall not be
obligated to register shares of Registrable Common held by the Stockholder at
any time (a) following the expiration of the Piggyback Period, or (b) if the
Stockholder owns less than 1% of Precept's then outstanding Common Stock when
the resale provisions of Rule 144(k) promulgated under the Securities Act
become available to the Stockholder or the Stockholder is otherwise entitled
to sell the shares of Registrable Common held by him or her without
registration under the Securities Act and without limitation as to volume or
manner of sale or both.
7. RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the SEC which may permit the sale of the
shares of Registrable Common held by the Stockholder to the public without
registration, Precept agrees to:
(a) make and keep current public information available as those terms
are understood and defined in Rule 144 promulgated under the Securities Act,
at all times;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of Precept under the Securities Act and
the Exchange Act at any time after it has become subject to such reporting
requirements; and
(c) so long as the Stockholder owns any shares of Registrable Common,
furnish to the Stockholder forthwith upon request a written statement by
Precept as to its compliance with the reporting requirements of Rule 144, the
Securities Act and the Exchange Act (at any time after it has
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become subject to such reporting requirements), a copy of the most recent
annual or quarterly report of Precept, and such other reports and documents
so filed as the Stockholder may reasonably request in availing itself of any
rule or regulation of the SEC allowing the Stockholder to sell any such
securities without registration.
8. MARKET STANDOFF. In consideration of the granting to the Stockholder of
the registration rights pursuant to this Agreement, the Stockholder agrees
that, for so long as the Stockholder holds shares of Registrable Common,
except as permitted by SECTION 2 hereof, the Stockholder will not sell,
transfer or otherwise dispose of, including without limitation through put or
short sale arrangements, shares of Precept Common Stock in the ten days prior
to the effectiveness of any registration (other than pursuant to a
Registration Statement on Form S-8 or Form S-4 or any successor forms) of
Precept Common Stock for sale to the public and for up to 90 days following
the effectiveness of such registration, provided that (i) the underwriters
for such offering reasonably request that the Stockholder be bound by such
restrictions and (ii) all directors, executive officers and holders of more
than five percent of the outstanding Precept Common Stock agree to the same
restrictions.
9. REGISTRATION EXPENSES. All expenses incurred in connection with any
registration, qualification and compliance under this Agreement (including,
without limitation, all registration, filing, qualification, legal, printing
and accounting fees) shall be borne by Precept. All underwriting commissions
and discounts applicable to shares of Registrable Common included in the
registrations under this Agreement shall be borne by the Stockholder.
Subject to the foregoing, all expenses incident to Precept's performance of
or compliance with this Agreement, including, without limitation, all filing
fees, fees and expenses of compliance with securities or blue sky laws
(including, without limitation, fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Common), printing
expenses, messenger and delivery expenses, internal expenses (including,
without limitation, all salaries and expenses of Precept's officers and
employees performing legal or accounting duties), the fees and expenses
applicable to shares of Registrable Common included in connection with the
listing of the securities to be registered on each securities exchange on
which similar securities issued by Precept are then listed, registrar and
transfer agents' fees and fees and disbursements of counsel for Precept and
its independent certified public accountants (including, without limitation,
the expenses of any "cold comfort" letters required by or incident to such
performance and the fees and expenses of any special audit required or
incident to a registration hereunder), securities act liability insurance of
Precept and its officers and directors (if Precept elects to obtain such
insurance), the fees and expenses of any special experts retained by Precept
in connection with such registration and fees and expenses of other persons
retained by Precept incurred in connection with each registration hereunder
(but not including, without limitation, any underwriting fees, discounts or
commissions attributable to the sale of Registrable Common, fees and expenses
of counsel and any other special experts retained by the holders of
Registrable Common in connection with a registration required hereunder, and
transfer taxes, if any), will be borne by Precept.
10. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY PRECEPT. Precept agrees to indemnify and hold
harmless the Stockholder, its officers, directors, agents, employees,
representatives and each person or entity who
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controls the Stockholder (within the meaning of the Securities Act) with
respect to which registration, qualification or compliance has been effected
pursuant to SECTION 2 or SECTION 3, against all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement (or alleged untrue
statement) of material fact contained in any registration statement, any
amendment or supplement thereto, any prospectus or preliminary prospectus or
any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or any violation by Precept of the Securities Act or any rule or
regulation thereunder applicable to Precept and relating to action or
inaction required of Precept in connection with such registration,
qualification or compliance, except insofar as the same arise out of or are
based upon any such untrue statement (or alleged untrue statement) or
omission (or alleged omission) based upon information with respect to the
Stockholder furnished in writing to Precept by the Stockholder expressly for
use therein. In connection with an underwritten offering, Precept will
indemnify the underwriters thereof, their officers and directors and each
person who controls such underwriters (within the meaning of the Securities
Act) to the same extent as provided above with respect to the indemnification
of the holders of Registrable Common.
(b) INDEMNIFICATION BY STOCKHOLDER. In connection with any registration
statement in which the Stockholder is participating, the Stockholder will
furnish to Precept in writing such information with respect to the name and
current address of the Stockholder, the amount of Precept Common Stock held
by the Stockholder and the nature of such holdings, and such other
information as is required by Precept for use in connection with any such
registration statement or prospectus. The Stockholder agrees to indemnify
and hold harmless Precept, its directors, officers, agents, employees,
representatives and each person or entity who controls Precept (within the
meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement of material fact contained
in any registration statement, any amendment or supplement thereto, any
prospectus or preliminary prospectus or any omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, to the extent, but only to the extent,
that such untrue statement or omission is contained in any information with
respect to the Stockholder so furnished in writing by the Stockholder
specifically for inclusion in or for use in the preparation of any prospectus
or registration statement.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person entitled to
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such person of any written notice of
the commencement of any action, suit, proceeding or investigation or threat
thereof made in writing for which such person will claim indemnification or
contribution pursuant to this Agreement; provided, however, that the failure
to notify the indemnifying party shall not relieve it from its
indemnification obligations to the indemnified party under this Agreement
unless the resulting delay is materially prejudicial to the defense of such
claim; provided, further, that the failure to deliver any such notice shall
not relieve an indemnifying party of any liability or obligation that it may
have to an indemnified party otherwise than pursuant to this SECTION 10.
Unless in the reasonable judgment of such indemnified party (i) a conflict of
interest may exist between such indemnified party and the indemnifying party
with respect to such claim or (ii) the named parties to any such action,
suit, proceeding or investigation (including any impleaded parties) include
both an
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indemnifying party and an indemnified party, and such indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it which are different from or additional to those available to
the indemnifying party, the indemnified party shall permit the indemnifying
party to assume the defense of such claim with counsel reasonably
satisfactory to such indemnified party. Whether or not such defense is
assumed by the indemnifying party, the indemnifying party will not be subject
to any liability for any settlement made without its consent (but such
consent will not be unreasonably withheld). No indemnifying party will
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 indemnified party of a release from all liability in respect
of such claim or litigation. If the indemnifying party is not entitled to,
or elects not to, assume the defense of a claim, it will not be obligated to
pay the fees and expenses of more than one counsel with respect to such
claim; provided, however, that an indemnified party shall have the right to
retain its own counsel, with the reasonable fees and expenses of such counsel
to be paid by the indemnifying party, if the indemnified party, based on the
advice of counsel, reasonably believes that representation of such
indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such
indemnified party and any other party represented by such counsel in such
proceeding.
(d) CONTRIBUTION. If the indemnification provided for in this SECTION
10 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and indemnified parties in
connection with the actions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether any untrue statement (or alleged untrue statement) of a material fact
or omission (or alleged omission) to state a material fact has been made by,
or relates to information supplied by, such indemnifying party or indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or payable by
a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in SECTION 10(c), any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this SECTION 10(d) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this SECTION 10(d), no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Common underwritten
by it and distributed to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission, and no selling
holder shall be required to contribute any amount in excess of the amount by
which the total price at which shares of the Registrable Common of such
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selling holder were offered to the public exceeds the amount of any damages
which such selling holder has otherwise been required to pay by reason of
such untrue statement or omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
If indemnification is available under this SECTION 10, the indemnifying
party shall indemnify the indemnified party to the full extent provided in
SECTIONS 10(a) AND 10(b) without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this SECTION 10(d). The provisions of this SECTION 10 shall
survive the termination of any or all of the other provisions of this
Agreement.
11. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. The Stockholder may not
participate in any underwritten registration hereunder unless such holder (a)
agrees to sell its Registrable Common on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
12. TRANSFER OF REGISTRATION RIGHTS; ADDITIONAL GRANTS OF REGISTRATION
RIGHTS. The registration rights provided to the Stockholder under SECTION 2
and SECTION 3 hereof may not be transferred to any other person or entity,
except pursuant to the laws of descent and distribution; provided that such
transferees are bound by and subject to the terms and conditions contained
herein.
13. MISCELLANEOUS.
(a) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, in each case except in writing signed by both parties.
(b) NOTICES. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally or sent by telex or telecopies, registered or
certified mail (return receipt requested), postage prepaid, or courier to the
parties at the following addresses (or at such other address for any party as
shall be specified by like notice, provided that notices of a change of
address shall be effective only upon receipt thereof). Notices sent by mail
shall be effective when answered back, notices sent by telecopier shall be
effective when receipt is acknowledged, and notices sent by courier
guaranteeing next day delivery shall be effective on the next business day
after timely delivery by the courier. Notices shall be sent to the following
addresses:
(i) if to the Stockholder, at the most current address given by the
Stockholder to Precept in writing, and to:
Xxxxxx Xxxxxx, Esq.
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Xxxxxxxx Xxxxx & Xxxx, P.C.
00 Xxxxx Xx., 00xx Xxxxx
Xxx Xxxx, XX 00000
(000) 000-0000 (fax)
(ii) if to Precept, at its address set forth in the Plan of
Reorganization.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(e) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED WHOLLY WITHIN THAT STATE.
(g) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any
way impaired thereby, it being intended that all of the rights and privileges
of the Stockholder shall be enforceable to the fullest extent permitted by
law.
(h) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes
all prior agreements and understandings between the parties with respect to
such subject matter.
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EXECUTED as of the date first above written.
PRECEPT:
PRECEPT INVESTORS, INC.
By:
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STOCKHOLDERS:
-----------------------------------
Xxxxxxx Xxxxxxxxx
THE XXXXXXXXX FAMILY TRUST
-----------------------------------
By: Xxxxxx Xxxxxxxxx, Trustee
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