REGISTRATION AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into as
of September 19, 1997, between BCAM INTERNATIONAL, INC., a New York corporation
(the "Company"), and IMPLEO LLC (the "Purchaser").
WHEREAS, concurrently herewith the Company and the Purchaser
are entering into that certain Note Purchase Agreement (the "Note Purchase
Agreement"), pursuant to which the Purchaser is purchasing $5,000,000 of the
Company's 10%/13% convertible notes; and
WHEREAS, to induce the Purchaser to enter into the Note
Purchase Agreement, the Company has agreed to provide the registration rights
set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, and subject
to the terms and conditions hereof, the parties hereby agree as follows:
1. DEFINITIONS
Unless the context otherwise requires, (i) the following terms
shall have the following meanings when used in this Agreement, (ii) any
capitalized terms used in this Agreement and not defined in this Article 1 but
which is defined in the Note Purchase Agreement shall have the meaning set forth
therein, (iii) terms stated in the singular shall include the plural and vice
versa, (iv) pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, the feminine and the neuter, and (v) all section, article
and exhibit references in this Agreement, unless otherwise stated, are to the
respective section of, or exhibit to this Agreement.
1.1. "Business Day" means any day other than a day on which
commercial banks are permitted or required to close for business in New York,
New York.
1.2. "Commission" means the Securities & Exchange Commission
and any successor agency thereto.
1.3. "Common Stock" means the Company's Common Stock, par
value $.01 per share.
1.4. "Equity Securities" means the Company's Common Stock and
any options, rights or warrants to subscribe for shares of Common Stock, and any
securities convertible into or exchangeable for shares of Common Stock.
1.5. "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
1.6. "Holder" means any Person who owns at least $100,000
principal amount of the Notes or owns at least that number of shares of Common
Stock received upon the conversion of $100,000 principal amount of the Notes
where such shares were received upon conversion of the Notes.
1.7. "NASD" means the National Association of Securities
Dealers, Inc.
1.8. "Other Holder" means a Person who has the right to
require the Company to effect registration of Equity Securities under the
Securities Act pursuant a written agreement in effect as of the date hereof.
1.9. "Person" means an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or political
subdivision thereof.
1.10. "Registrable Securities" means, collectively, the shares
of Common Stock issuable upon (a) conversion of the Notes, and (b) the exercise
of the Warrants.
1.11. "Registration Expenses" means all expenses incident to
the Company's performance of or compliance with this Agreement, including,
without limitation, (a) all registration and filing fees, (b) fees and expenses
associated with filings required to be made with the NASD, (c) fees and expenses
of compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel for the underwriters or selling Holders in connection
with blue sky qualifications of the Equity Securities and determination of their
eligibility for investment under the laws of such jurisdictions designated by
the managing underwriter or underwriters, if any), (d) printing expenses
(including expenses of printing certificates for the Equity Securities in a form
eligible for deposit with Depository Trust Company and of printing
prospectuses), (e) messenger, telephone and delivery expenses, (f) fees and
expenses of the Company's accountants, (g) fees and disbursements of counsel for
the Company and for the selling Holders (subject to the provisions of Section
5.1 hereof), and (h) out-of-pocket fees and expenses of underwriters (excluding
discounts, commissions or fees of underwriters relating to the distribution of
Equity Securities of the selling Holders).
1.12. "SEC" means the Securities and Exchange Commission.
1.13. "Securities Act" means the Securities Act of 1933, as
amended.
1.14. "Underwritten Offering" means a registration in which
Equity Securities of the Company are sold to an underwriter for reoffering to
the public.
2. DEMAND AND INCIDENTAL REGISTRATION RIGHTS
2.1. Registration on Request. (a) At any time after the date
hereof (the "Registration Date"), upon the written request of any Holder or
Holders holding an aggregate of at least 625,000 shares of Common Stock or
500,000 Warrants (625,000 shares of Common Stock or 500,000 Warrants being
hereinafter referred to as "Minimum Securities"), that the Company effect the
registration under the Securities Act of all or part of the Registrable
Securities held by such Holder or Holders, and specifying the intended method or
methods of disposition of such Registrable Securities, the Company will promptly
give written notice of such requested registration by registered mail to all
Holders; provided, however, that the number of Minimum Securities shall be
increased or decreased, proportionately, if the Company shall (x) subdivide the
number of outstanding shares of Common Stock or Warrants into a greater number
of shares or warrants, or (y) if the Company shall reduce the number of
outstanding shares of
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Common Stock or Warrants by combining such number into a small number of shares
or warrants. Thereupon, the Company will use its best efforts to effect (at the
earliest possible date and if possible within 60 days after the giving of such
written notice by the Company) the registration, under the Securities Act, of:
(i) the Registrable Securities which the Company has
been so requested to register by such Holder or Holders, for
disposition in accordance with the intended method of
disposition stated in such request, and
(ii) all other Registrable Securities which the
Company has been requested to register by a Holder or Holders
by written request delivered to the Company within 30 days
after the giving of such written notice by the Company (which
request shall specify the intended method of disposition of
such Registrable Securities), all to the extent required to
permit the disposition in accordance with the intended methods
thereof as aforesaid of the Common stock so to be registered,
provided, however, that the Company shall not be required
under this Section 2.1 to effect an Underwritten Offering.
2.2. The Company will pay all Registration Expenses in
connection with all demand registrations of Registrable Securities effected by
the Company pursuant to this Section 2.1.
2.3. Incidental Registration. (a) If the Company at any time
proposes to register any of its Equity Securities under the Securities Act,
whether for sale for its own account or otherwise, on a form and in a manner
which would permit registration of Common Stock for sale to the public under the
Securities Act, it will at such time give prompt written notice to all Holders
of its intention to do so, describing such Equity Securities and specifying the
form and manner and the other relevant facts involved in such proposed
registration, and upon the written request of any Holders delivered to the
Company within thirty (30) days after the giving of any such notice (which
request shall specify the Common Stock intended to be disposed of by such
Holders and the intended method of disposition thereof), the Company will use
its best efforts to effect the registration under the Securities Act of all
Common Stock which the Company has been so requested to register by Holders, to
the extent required to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Common Stock so to be registered; provided,
however, that:
(i) if, at any time after giving such written notice
of its intention to register any of its Equity Securities and
prior to the effective date of the registration statement
filed in connection with such registration, the Company shall
determine for any reason not to register such Equity
Securities, at its sole election, the Company may give written
notice of such determination to each Holder and thereupon
shall be relieved of its obligation to register any Common
Stock in connection with such registration (but not from its
obligation to pay the Registration Expenses in connection
therewith as provided in paragraph (c) of this Section 2.2),
without prejudice, however, to the rights of any one or more
Holders to request that such registration be effected as a
registration under Section 2.1;
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(ii) if (A) the registration so proposed by the
Company involves an Underwritten Offering of the Equity
Securities so being registered, whether for sale for the
account of the Company or otherwise, and (B) the managing
underwriter of such Underwritten Offering shall advise the
Company in writing that, in its opinion, the distribution of
all or a specified portion of such Holders' Common Stock by
such underwriters will materially and adversely affect the
distribution of such Equity Securities by such underwriters
(which opinion shall state the reasons therefor), then the
Company will promptly furnish each such Holder with a copy of
such opinion and shall include Equity Securities in such
registration to the extent of the number which the Company is
so advised can be sold in such offering, determined as
follows: (1) if such registration as proposed by the Company
is in response to a request from a Holder as provided in
Section 2.1, (x) first, the Equity Securities proposed to be
sold in such registration by Holders making such request under
Section 2.1, and (y) second, the Equity Securities requested
to be included in such registration by Other Holders and the
Company (allocated among such Other Holders and the Company as
they may agree); (2) if such registration as proposed by the
Company is solely a primary registration of its Equity
Securities, (x) first, the securities the Company proposes to
sell, and (y) second, Equity Securities requested to be
included in such registration, pro rata among the Holders and
the Other Holders requesting such registration; and (3) if
such registration was requested by Other Holders, (x) first,
the Equity Securities held by the Other Holders initiating
such registration, allocated among the Other Holders, on such
basis as shall have been agreed upon by such Other Holders,
(y) second, Equity Securities requested to be included in such
registration by Holders pursuant to Section 2.2, and (z) third
Equity Securities proposed to be included by the Company;
(iii) the Company shall not be obligated to effect
any registration of Common Stock under this Section 2.2
incidental to the registration of any of its Equity Securities
in connection with mergers, acquisitions, exchange offers,
dividend reinvestment plans, employee stock ownership plans or
stock option plans, thrift plans, pension plans or other
employee benefit plans.
(b) No registration of Common Stock effected under this
Section 2.2 shall relieve the Company of its obligation to effect registrations
of Common Stock pursuant to Section 2.1.
(c) The Company will pay all Registration Expenses in
connection with each registration of Common Stock requested pursuant to this
Section 2.2.
3. HOLD-BACK AGREEMENTS
3.1. Restrictions on Public Sale by Holders of Securities.
(a) Each Holder agrees, if requested by the Company and the
managing underwriter or underwriters of an Underwritten Offering, not to effect
any public sale or
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distribution of any Registrable Securities of the Company without the prior
written consent of the Company, including a sale pursuant to Rule 144 or Rule
144A under the Securities Act, during the 10-day period prior to, and during the
90 day period (the "Standstill Period") beginning on the effectiveness of the
Registration Statement relating to such Underwritten Offering, in each case to
the extent timely notified in writing by the Company or by the managing
underwriter or underwriters; provided, however, that the restriction contained
herein shall apply only to an Underwritten Offering of the Company to become
effective after the date hereof (1) which includes securities to be sold on the
Company's behalf to the public in an Underwritten Offering and (2) with respect
to which the Company has complied with its obligations under Section 2.2 hereof.
The Company may impose stop-transfer instructions with respect to Equity
Securities subject to the restrictions provided for in this Section 3.1 until
the end of the Standstill Period,
(b) If the distribution restrictions described in Section
3.1(a) are in effect, the Company agrees not to effect any public sale or
distribution of its Equity Securities during the one hundred eighty (180) day
period following the effective date of a registration statement covering any
Registrable Securities, except as part of such registration and except pursuant
to a registration on Form S-8 or any successor or similar form thereto.
4. REGISTRATION PROCEDURES
4.1. Filing of Registration Statement. If and whenever the
Company is required to effect the registration of any Registrable Securities
under the Securities Act as provided in Section 2.1 or use its reasonable best
efforts to effect any such registration under Section 2.2., as expeditiously as
possible the Company will:
(a) prepare and (in any event within 60 days after the end of
the period within which requests for registration may be delivered to the
Company) file with the SEC a registration statement on the appropriate form with
respect to such Registrable Securities and use reasonable efforts to cause such
registration statement to become effective;
(b) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective and
to comply with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such registration statement
until all such shares of Registrable Securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such
number of conformed copies of such registration statement and of each such
amendment and supplement thereto (in each case including all exhibits), such
number of copies of the prospectus included in such registration statement
(including each preliminary prospectus and any summary prospectus), in
conformity with the requirements of the Securities Act, such documents
incorporated by reference in such registration statement or prospectus, and such
other documents, as such seller may reasonably request;
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(d) use reasonable efforts to register or qualify all
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as each seller shall
reasonably request, and to any and all other acts and things which may be
necessary or advisable to enable such seller to consummate the disposition in
such jurisdiction of its shares of Registrable Securities covered by such
registration statement, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it is not so qualified, or to subject itself to taxation in
any such jurisdiction;
(e) furnish to each Holder selling Registrable Securities a
signed counterpart, addressed to such Holder, of (i) an opinion of counsel for
the Company in the form accompanying the registration statement and in the form
delivered to underwriters, if any, dated the effective date of such registration
statement (or if such registration includes an Underwritten Offering, dated the
date of the closing under the underwriting agreement), and (ii) a "cold comfort"
letter signed by the independent public accountants who have certified the
Company's financial statements included in such registration statement; in each
case covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of such
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's counsel
and in accountants' letters delivered to underwriters in Underwritten Offerings
of securities and, in the case of the accountants' letter, such other financial
matters as such sellers may reasonably request;
(f) immediately notify each Holder selling Registrable
Securities covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act, of the
happening of any event of which it becomes aware as a result of which the
prospectus included in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing, and at the request
of any such Holder prepare and furnish to such Holder a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be necessary
so that, as thereafter delivered to the purchasers of Registrable Securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing; and
(g) otherwise use reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
Registrable Securities holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve (12) months, but not more than
eighteen (18) months, beginning with the first month of the first 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.
4.2. Underwriting Agreement. If requested by the underwriters
for any Underwritten Offering of Registrable Securities on behalf of a Holder or
pursuant to a registration requested under Section 2.1, the Company will enter
into an underwriting agreement
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with such underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions, including, without limitation, indemnities to the
effect and to the extent provided in Section 6. The Holder or Holders on whose
behalf Registrable Securities are to be distributed by underwriters pursuant to
Section 2.1 or 2.2 shall be parties to any related underwriting agreement and
shall provide customary representations, warranties and other agreements; the
representations and warranties made by, and the other agreements made or
opinions given on the part of or on behalf of, the Company to and for the
benefit of such underwriters, also shall be made to and for the benefit of such
Holder.
4.3. Selection of Underwriter. Whenever a registration
requested pursuant to Section 2.1 is for an Underwritten Offering, the Holders
holding a majority of the Registrable Securities included in such registration
shall have the right to select the managing underwriter to administer the
offering.
4.4. Postponement of Registration. In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
Section 2.1, the Company shall have the right to postpone or delay such
registration if the Company reasonably believes that such registration at such
time would have a material adverse effect on the operations or financial
conditions of the Company; provided, however, that the Company may exercise its
rights under this Section 4.4 only one time in any 12-month period. The Company
shall immediately give notice of such delay or postponement to each Holder
proposing to sell Registrable Securities in such underwritten offering,
explaining the reasons for each such postponement or delay. In the event the
Company has not filed a registration statement within three months of a notice
of delay or postponement, the Holders shall be entitled again to demand such
registration (in accordance with the requirements of Section 2.1) without any
further delay or postponement and without prejudice to any other rights accorded
such Holders in this Agreement. In connection with the preparation and filing of
each registration statement registering Registrable Securities under the
Securities Act, the Company will give the Holders on whose behalf Registrable
Securities are to be so registered and their underwriters, if any, and their
respective counsel and accountants, the opportunity to participate in the
preparation of such registration statement, each prospectus included therein or
filed with the SEC, and each amendment thereof or supplement thereto, and will
give each of them such access to its books and records and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who have certified its financial statements as shall be necessary,
in the opinion of such Holders and such underwriter or their respective counsel,
to conduct a reasonable investigation within the meaning of the Securities Act.
4.5. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of Registrable Securities subject to this Agreement to the
public without registration, the Company agrees to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144 at all times
after the date of this Agreement;
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(b) use its best efforts to then file with the Commission in a
timely manner all reports and other documents required of the Company under the
Exchange Act for so long as it is subject to such reporting requirements; and
(c) so long as a Holder owns any Registrable Securities, to
furnish to such Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing a Holder to sell any Registrable
Securities without registration.
4.6. No Conflicting Agreements. The Company represents and
warrants to each Holder that it is not a party to any agreement that conflicts
in any manner with such Holder's rights to cause the Company to register
Registrable Securities pursuant to this Section 4.6.
5. REGISTRATION EXPENSES
5.1. Payment of Registration Expenses. All Registration
Expenses will be borne by the Company, regardless of whether the Registration
Statement becomes effective. In connection with the registration statements to
be filed pursuant to Sections 2.1 and 2.2 hereunder, the Company will reimburse
the selling Holders of shares of Common Stock being registered in such
registration for the reasonable fees and disbursements of one counsel chosen by
the Holders of a majority of Registrable Securities participating in the
offering.
6. INDEMNIFICATION
6.1. Indemnification by Company. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Holder, its officers, directors and employees and each Person who controls such
Holder (within the meaning of the Securities Act) or acts on behalf of such
Holder against all losses, claims, damages, liabilities and reasonable expenses
caused by any untrue or alleged untrue statement of a material fact contained in
any registration statement, 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 made therein, in light of the
circumstances in which they were made, not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such Holder expressly for use therein; provided, however, that (i)
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission in
the final prospectus, if such untrue statement or allege untrue statement,
omission or alleged omission is corrected in an amendment or supplement to the
final prospectus and the Holder thereafter fails to deliver such prospectus as
so amended or supplemented prior to or concurrently with the sale of the Common
Stock to the Person asserting such loss, claim, damage, liability or expense
after the Company and furnished such Holder with a copy of such amended or
supplemented prospectus; and (ii) the Company shall not be liable if any Person
uses a prospectus (or an amendment or supplement thereto) following the giving
of
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notice by the Company pursuant to Section 4.1(d)). The Company will also
indemnify the underwrites participating in the distribution, their officers and
directors and each Person who controls such Persons (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of the Holders, if so requested.
6.2. Indemnification by Holders. In connection with each
registration hereunder, each Holder participating in the offering will furnish
to the Company in writing such information as the Company reasonably requests
for use in connection with any registration statement or prospectus and agrees
to indemnify and hold harmless, to the full extent permitted by law, the
Company, its directors and officers and each Person who controls the Company
(within the meaning of the Securities Act) against any loses, claims, damages,
liabilities and expenses resulting form any untrue statement of a material fact
or any omission of a material fact required to be stated in the registration
statement or prospectus or preliminary prospectus or necessary to make the
statements made therein, in light of the circumstances in which they were made,
not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information so furnished in writing by
such Holder to the Company specifically for inclusion in such registration
statement or prospectus. The indemnification provided by any Holder pursuant to
this Section 6.2 shall be limited to the total proceeds received by such Holder
from such offering. The Company shall be entitled to receive indemnities from
the underwriters participating in the distribution, to the same extent as
provided above with respect to information so furnished in writing by such
persons specifically for inclusion in any prospectus or registration statement.
6.3. Conduct of Indemnification Proceedings. Any Person
entitled to indemnification hereunder will (a) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided, however,
that any Person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such Person unless
(i) the indemnifying party has agreed in writing to pay such fees or expenses,
or (ii) the indemnifying party shall have failed to assume the defense of such
claim and employ counsel reasonably satisfactory to such Person. 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
if such settlement only involves the payment of money, such consent will not be
unreasonably withheld). No indemnifying party will be required to 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 such
indemnified party and indemnifying party of a release form all liability in
respect to such claim or litigation. An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim.
6.4. Contribution. If for any reason the indemnification
provided for in Sections 6.1 and 6.2 is unavailable to an indemnified party,
then the indemnifying party shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage or liability in
such proportion as is appropriate to reflect not only the relative benefits
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received by the indemnified party and the indemnifying party, but also the
relative fault of the indemnified party and the indemnifying party, as well as
any other relevant equitable considerations, including the amount of the
proceeds received by the Company or any Holder, as the case may be. 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.
7. MISCELLANEOUS
7.1. Amendments and Waiver. The Provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures form the provisions hereof
may not be given unless the Company has obtained the prior written consent of
the Holders of a majority of all Notes.
7.2. Notices. All notices and other communications provided
for or permitted hereunder shall be delivered (a) in person with receipt
acknowledged, (b) by a nationally registered overnight delivery service, (c) by
registered or certified mail, return receipt requested, postage prepaid, or (d)
by telecopy and confirmed by telecopy answerback addressed as follows:
If to the Purchaser, at:
IMPLEO LLC
c/o Wexford Management LLC
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
With a copy to:
Berlack, Israels & Xxxxxxxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Company, at:
BCAM International, Inc.
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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With a copy to:
Ruskin, Moscou, Xxxxx & Faltischek, PC
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx, Esq.
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
or at such other address as may be substituted by notice given as herein
provided. Every notice, hereunder shall be deemed to have been duly given or
served on the date on which personally delivered, with receipt acknowledged,
telecopied and confirmed by telecopy answerback or five Business Days after the
same shall have been deposited in the United States mail. Failure or delay in
delivering copies of any notice, demand, request, consent, approval, declaration
or other communication to the persons designated above to receive copies shall
in no way adversely affect the effectiveness of such notice, demand, request,
consent, approval, declaration or other communication.
7.3. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties. Any Person who acquires at least $250,000 principal amount of the Notes
may become a party to this Agreement by executing and delivering a supplemental
agreement agreeing to be bound by all of the terms and conditions hereof.
7.4. Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts
(including by the execution of a letter of transmittal expressly referring to
this Agreement), 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.
7.5. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
7.6. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAWS PROVISION.
7.7. 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. There is no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with
respect
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to the Common Stock. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
7.8. Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, the successful party shall be entitled
to recover reasonable attorneys' fees in addition to its costs and expenses and
any other available remedy.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date written above.
BCAM INTERNATIONAL, INC.
By: /s/ Xxxxxxx Xxxxxxx
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Title: President
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IMPLEO LLC
By: /s/ Xxxx X. Xxxxxxxx
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Title: Vice President
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-12-
