Exhibit 10.9
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of November 20, 2001, between
Vizacom Inc., a Delaware corporation (the "Company") and Xxxxxx Xxxxxxx (the
"Stockholder").
WHEREAS, this Agreement has been entered into in connection with a
Settlement and Release Agreement, dated as of November 20, 2001 (the "Settlement
Agreement"), between the Company and Stockholder.
NOW, THEREFORE, it is agreed as follows:
1. Defined Terms. Each of the following terms shall have the
following meanings (such definitions to be applicable to both the plural and
singular of the terms defined):
(a) Registerable Securities. The term "Registerable
Securities" shall mean the shares of Capital Stock of the Company
issued pursuant to the Settlement Agreement, including any shares of
Common Stock or other securities received in connection with any stock
split, stock dividend, merger, reorganization, recapitalization,
reclassification or other distribution payable or issuable upon shares
of Common Stock. For the purposes of this Agreement, securities will
cease to be Registerable Securities when (A) a registration statement
under the Securities Act of 1933, as amended (the "Securities Act")
covering such Registerable Securities has been declared effective by
the Securities and Exchange Commission and such registration statement
has been continuously effective for a period of nine (9) months, (B)
such Registerable Securities are distributed to the public pursuant to
the Securities Act or pursuant to an exemption from the registration
requirements of the Securities Act, including, but not limited to,
Rules 144 and 144A promulgated under the Securities Act, or (C) such
Registerable Securities have been otherwise transferred and the
Company, in accordance with applicable law and regulations, has
delivered new certificates or other evidences of ownership for such
securities which are not subject to any stop transfer order or other
restriction on transfer.
(b) Rightsholders. The term "Rightsholders" shall include the
undersigned, all successors and assigns of the undersigned, and all
transferees of Registerable Securities where such transfer
affirmatively includes the transfer and assignment of the rights and
obligations of the transferor Rightsholder under this Agreement with
respect to the transferred Registerable Securities.
(c) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement, and subsection, paragraph, clause, schedule and exhibit
references are to this Agreement unless otherwise specified.
(d) Capitalized terms used herein but not otherwise defined
shall have the meanings given to them in the Merger Agreement.
2. Piggy-Back Registration.
(a) If, at any time on or after the Closing Date and on or
prior to three years from the Closing Date, the Company proposes to
file a registration statement under the Securities Act with respect to
an offering by the Company or any other party of any class of equity
security similar to any Registerable Securities (other than a
registration statement on Form S-4 or S-8 or any successor form or a
registration statement filed solely in connection with an exchange
offer, a business combination transaction or an offering of securities
solely to the existing stockholders or pursuant to any employee benefit
plans of the Company), then the Company, on each such occasion, shall
give written notice (each, a "Company Piggy-Back Notice") of such
proposed filing to all of the Rightsholders owning Registerable
Securities at least 20 days before the anticipated filing date of such
registration statement, and such Company Piggy-Back Notice also shall
be required to offer to such Rightsholders the opportunity to register
such aggregate number of Registerable Securities as each such
Rightsholder may request. Each such Rightsholder shall have the
right, exercisable for the 10 days immediately following the giving of
the Company Piggy-Back Notice, to request, by written notice (each, a
"Holder Notice") to the Company, the inclusion of all or any portion of
the Registerable Securities of such Rightsholders in such registration
statement. The Company shall use reasonable efforts to cause the
managing underwriter(s) of a proposed underwritten offering to permit
the inclusion of the Registerable Securities which were the subject of
all Holder Notices in such underwritten offering on the same terms and
conditions as any similar securities of the Company included therein.
Notwithstanding anything to the contrary contained in this Paragraph
2(a), if the managing underwriter(s) of such underwritten offering or
any proposed underwritten offering delivers a written opinion to the
Rightsholders of Registerable Securities which were the subject of all
Holder Notices that the total amount and kind of securities which they,
the Company and any other person intend to include in such offering is
such as to materially and adversely affect the success of such
offering, then the amount of securities to be offered for the accounts
of such Rightsholders and persons other than the Company shall be
eliminated or reduced pro rata (based on the amount of securities owned
by such Rightsholders and other persons which carry registration
rights) to the extent necessary to reduce the total amount of
securities to be included in such offering to the amount recommended by
such managing underwriter(s) in its written opinion.
(b) Number of Piggy-Back Registrations; Expenses. The
obligations of the Company under this Section 2(b) shall be limited
with respect to each Rightsholder to one (1) exercise of piggyback
rights. Subject to the provisions of Section 4 hereof, the Company will
pay all Registration Expenses in connection with any registration of
Registerable Securities effected pursuant to this Section 2, but the
Company shall not be responsible for the payment of any underwriter's
discount, commission or selling concession in connection therewith.
(c) Withdrawal or Suspension of Registration Statement.
Notwithstanding anything contained to the contrary in this Section 2,
the Company shall have the absolute right, whether before or after the
giving of a Company Piggy-Back Notice or Holder Notice, to determine
not to file a registration statement to which the Rightsholders shall
have the right to include their Registerable Securities therein
pursuant to this Section 2, to withdraw such registration statement or
to delay or suspend pursuing the effectiveness of such registration
statement. In the event of such a determination after the giving of a
Company Piggy-Back Notice, the Company shall give notice of such
determination to all Rightsholders and, thereupon, (i) in the case of a
determination not to register or to withdraw such registration
statement, the Company shall be relieved of its obligation under this
Section 2 to register any of the Registerable Securities in connection
with such registration and (ii) in the case of a determination to delay
the registration, the Company shall be permitted to delay or suspend
the registration of Registerable Securities pursuant to this Section 2
for the same period as the delay in the registration of such other
securities.
3. Registration Procedures.
(a) Obligations of the Company. The Company will, in
connection with any registration pursuant to Section 2 hereof, as
expeditiously as possible:
(i) prepare and file with the Commission a
registration statement under the Securities Act on any
appropriate form chosen by the Company, in its sole
discretion, which shall be available for the sale of all
Registerable Securities to be included for sale in accordance
with the intended method(s) of distribution thereof set forth
in all applicable Holder Notices, and use its commercially
reasonable efforts to cause such registration statement to
become effective as soon thereafter as reasonably practicable;
provided, that, (A) after such filing, the Company shall, as
diligently as practicable, provide to each Rightsholder such
number of copies of such registration statement, each
amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary
prospectus), all exhibits thereto and documents incorporated
by reference therein and such other documents as such
Rightsholder may reasonably request in order to facilitate the
disposition of the Registerable Securities owned by such
Rightsholder and included in such registration statement; and
(B) that the obligation of the Company to effect such
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registration and/or cause such registration statement to
become effective, may be postponed for (x) such period of time
when the financial statements of the Company required to be
included in such registration statement are not available (due
solely to the fact that such financial statements have not
been prepared in the regular course of business of the
Company) or (y) any other bona fide corporate purpose, but
then only for a period not to exceed 120 days;
(ii) prepare and file with the Commission such
amendments and post- effective amendments to a registration
statement as may be necessary to keep such registration
statement effective for up to nine months; and cause the
related prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed to
the extent required pursuant to Rule 424 promulgated under the
Securities Act, during such nine-month period; and otherwise
comply with the provisions of the Securities Act with respect
to the disposition of all Registerable Securities covered by
such registration statement during the applicable period in
accordance with the intended method(s) of disposition of such
Registerable Securities set forth in such registration
statement, prospectus or supplement to such prospectus;
(iii) notify the Rightsholders whose Registerable
Securities are included in such registration statement and the
managing underwriter(s), if any, of an underwritten offering
of any of the Registerable Securities included in such
registration statement, and confirm such advice in writing,
(A) when a prospectus or any prospectus supplement or
post-effective amendment has been filed, and, with respect to
a registration statement or any post-effective amendment, when
the same has become effective, (B) of any request by the
Commission for amendments or supplements to a registration
statement or related prospectus or for additional information,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of a registration statement or
the initiation of any proceedings for that purpose, (D) if at
any time the representations and warranties of the Company
contemplated by clause (A) of Paragraph 3(a)(viii) hereof
cease to be true and correct, (E) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of any of the Registerable Securities for
sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose and (F) of the happening of
any event which makes any statement made in the registration
statement, the prospectus or any document incorporated therein
by reference untrue or which requires the making of any
changes in the registration statement or prospectus so that
such registration statement, prospectus or document
incorporated by reference will not contain any untrue
statement of material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading;
(iv) make reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of such registration
statement at the earliest possible moment and to prevent the
entry of such an order;
(v) use reasonable efforts to register or qualify the
Registerable Securities included in such registration
statement under such other securities or blue sky laws of such
jurisdictions as any Rightsholder whose Registerable
Securities are included in such registration statement
reasonably requests in writing and do any and all other acts
and things which may be necessary or advisable to enable such
Rightsholder to consummate the disposition in such
jurisdictions of such Registerable Securities; provided, that
the Company will not be required to (A) qualify generally to
do business in any jurisdiction where it would not otherwise
be required to qualify but for this Paragraph 3(a)(v), (B)
subject itself to taxation in any such jurisdiction or (C)
take any action which would subject it to general service of
process in any such jurisdiction;
(vi) cooperate with the Rightsholder whose
Registerable Securities are included in such registration
statement and the managing underwriter(s), if any, to
facilitate the timely
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preparation and delivery of certificates representing
Registerable Securities to be sold thereunder, and enable such
Registerable Securities to be in such denominations and
registered in such names as such Rightsholder or any managing
underwriter(s) may reasonably request at least two business
days prior to any sale of Registerable Securities;
(vii) comply with all applicable rules and
regulations of the Commission and promptly make generally
available to its security holders an earnings statement
covering a period of twelve months commencing, (A) in an
underwritten offering, at the end of any fiscal quarter in
which Registerable Securities are sold to underwriter(s), or
(B) in a non-underwritten offering, with the first month of
the Company's first fiscal quarter beginning after the
effective date of such registration statement, which earnings
statement in each case shall satisfy the provisions of Section
11(a) of the Securities Act;
(viii) enter into such customary agreements
(including an underwriting agreement in customary form) and
take all such other actions reasonably requested by the
Rightsholders holding a majority of the Registerable
Securities included in such registration statement or the
managing underwriter(s) in order to expedite and facilitate
the disposition of such Registerable Securities and in such
connection, if an underwriting agreement is entered into and
if the registration is an underwritten registration, (A) make
such representations and warranties, if any, to any
underwriter(s) with respect to the registration statement,
prospectus and documents incorporated by reference, if any, in
form, substance and scope as are customarily made by issuers
to underwriter(s) in underwritten offerings and confirm the
same if and when requested, (B) obtain opinions of counsel to
the Company and updates thereof addressed to each such
underwriter(s), if any, with respect to the registration
statement, prospectus and documents incorporated by reference,
if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as
may be reasonably requested by such underwriter(s), (C) obtain
a "cold comfort" letter and updates thereof from the Company's
independent certified public accountants addressed to the
underwriter(s), if any, which letters shall be in customary
form and cover matters of the type customarily covered in
"cold comfort" letters by accountants in connection with
underwritten offerings, and (D) deliver such documents and
certificates as may be reasonably requested by the managing
underwriter(s), if any, to evidence compliance with any
customary conditions contained in the underwriting agreement
or other agreement entered into by the Company; each such
action required by this Paragraph 3(a)(x) shall be done at
each closing under such underwriting or similar agreement or
as and to the extent required thereunder; and
(ix) if requested by the holders of a majority of the
Registerable Securities included in such registration
statement, use its commercially reasonable best efforts to
cause all Registerable Securities which are included in such
registration statement to be listed, subject to notice of
issuance, by the date of the first sale of such Registerable
Securities pursuant to such registration statement, on each
securities exchange, if any, on which securities similar to
the Registered Securities are listed.
(b) Obligations of Rightsholders. In connection with any
registration of Registerable Securities of a Rightsholder pursuant to
Section 2 hereof:
(i) The Company may require that each Rightsholder
whose Registerable Securities are included in such
registration statement furnish to the Company such information
regarding the distribution of such Registerable Securities and
such Rightsholder as the Company may from time to time
reasonably request in writing; and
(ii) Each Rightsholder, upon receipt of any notice
from the Company of the happening of any event of the kind
described in clauses (B), (C), (E) and (F) of Paragraph
3(a)(iii)
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hereof, shall forthwith discontinue disposition of
Registerable Securities pursuant to the registration statement
covering such Registerable Securities until such
Rightsholder's receipt of the copies of the supplemented or
amended prospectus contemplated by clause (A) of Paragraph
3(a)(iii) hereof, or until such Rightsholder is advised in
writing (the "Advice") by the Company that the use of the
applicable prospectus may be resumed, and until such
Rightsholder has received copies of any additional or
supplemental filings which are incorporated by reference in or
to be attached to or included with such prospectus, and, if so
directed by the Company, such Rightsholder will deliver to the
Company (at the expense of the Company) all copies, other than
permanent file copies then in the possession of such
Rightsholder, of the current prospectus covering such
Registerable Securities at the time of receipt of such notice;
the Company shall have the right to demand that such
Rightsholder or other holder verify its agreement to the
provisions of this Paragraph 3(b)(ii) in any Holder Notice of
the Rightsholder or in a separate document executed by the
Rightsholder.
4. Registration Expenses. All expenses incident to the performance of
or compliance with this Agreement by the Company, including, without imitation,
all registration and filing fees of the Commission, National Association of
Securities Dealers, Inc. and other agencies, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the Registerable
Securities), rating agency fees, printing expenses, messenger and delivery
expenses, internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the fees and expenses incurred in connection with the listing, if any, of the
Registerable Securities on any securities exchange or market and fees and
disbursements of counsel for the Company and the Company's independent certified
public accountants (including the expenses of any special audit or "cold
comfort" letters required by or incidental to such performance), Securities Act
or other liability insurance (if the Company elects to obtain such insurance),
the fees and expenses of any special experts retained by the Company in
connection with such registration and the fees and expenses of any other person
retained by the Company (but not including any underwriting discounts or
commissions attributable to the sale of Registerable Securities or other
out-of-pocket expenses of the Rightsholders, or the agents who act on their
behalf, unless reimbursement is specifically approved by the Company) will be
borne by the Company. All such expenses are herein referred to as "Registration
Expenses."
5. Indemnification: Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless, to the full extent permitted by law, each
Rightsholder, its officers and directors, and its legal counsel,
accountants, and underwriters, and each person who controls such
Rightsholder (within the meaning of the Securities Act), if any, and
any agent thereof against all losses, claims, damages, liabilities and
expenses (including reasonable attorney's fees and expenses of
investigation) incurred by such party pursuant to any actual or
threatened suit, action, proceeding or investigation to which they may
be subject under the Securities Act or any other federal or any state
securities laws, arising out of or based upon (i) any untrue or alleged
untrue statement of a material fact contained in any registration
statement, prospectus or preliminary prospectus, (ii) any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of a
prospectus, in the light of the circumstances under which they were
made) not misleading, except insofar as the same arise out of or are
based upon, any such untrue statement or omission based upon
information with respect to such Rightsholder furnished in writing to
the Company by such Rightsholder expressly for use therein, or (iii)
any violation or alleged violation by the Company of the Securities
Act, the Exchange Act, any state securities laws or any rule or
regulation promulgated under the Securities Act, the Exchange Act or
any state securities laws relating to the Registration Statement.
(b) Indemnification by Rightsholder. In connection with any
registration statement in which a Rightsholder is participating, each
such Rightsholder will be required to furnish to the Company in writing
such information with respect to such Rightsholder as the Company
reasonably requests for use in
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connection with any such registration statement or prospectus, and
each Rightsholder agrees to the extent it is such a holder of
Registerable Securities included in such registration statement, and
each other such holder of Registerable Securities included in such
Registration Statement will be required to agree, to indemnify, to the
full extent permitted by law, the Company, the directors and officers
of the Company and each person who controls the Company (within the
meaning of the Securities Act), any agent thereof, its legal counsel,
accountants and underwriters, against any losses, claims, damages,
liabilities and expenses (including reasonable attorney's fees and
expenses of investigation incurred by such party pursuant to any
actual or threatened suit, action, proceeding or investigation to
which they may be subject under the Securities Act or any other
federal or any state securities laws, arising out of or based upon (i)
any untrue or alleged untrue statement of a material fact or any
omission or alleged omission of a material fact necessary, to make the
statements contained in any registration statement, prospectus, or
preliminary prospectus (in the case of a prospectus, in the light of
the circumstances under which they are made) not misleading, to the
extent, but only to the extent, that such untrue statement or omission
is based upon information relating to such Rightsholder or other
holder furnished in writing to the Company expressly for use therein
or (ii) any violation or alleged violation by such Rightsholder of the
Securities Act, the Exchange Act, any state securities laws or any
rule or regulation promulgated under the Securities Act, the Exchange
Act or any state securities laws relating to the Registration
Statement.
(c) Conduct of Indemnification Proceedings. Promptly after
receipt by an indemnified party under this Section 5 of written notice
of the commencement of any action, proceeding, suit or investigation or
threat thereof made in writing for which such indemnified party may
claim indemnification or contribution pursuant to this Agreement, such
indemnified party shall notify in writing the indemnifying party of
such commencement or threat; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any
liability which the indemnifying party may have to any indemnified
party (i) hereunder, unless the indemnifying party is actually
prejudiced thereby, or (ii) otherwise than under this Section 5. In
case any such action, suit or proceeding shall be brought against any
indemnified party, and the indemnified party shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and the indemnifying party
shall assume the defense thereof, with counsel reasonably satisfactory
to the indemnified party, and the obligation to pay all expenses
relating thereto. The indemnified party shall have the right to employ
separate counsel in any such action, suit or proceeding and to
participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party has agreed to pay such fees and expenses, (ii)
the indemnifying party shall have failed to assume the defense of such
action, suit or proceeding or to employ counsel reasonably satisfactory
to the indemnified party therein or to pay all expenses relating
thereto or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both the indemnified party
and the indemnifying party and the indemnified party shall have been
advised by counsel that there may be one or more legal defenses
available to the indemnified party which are different from or
additional to those available to the indemnifying party and which may
result in a conflict between the indemnifying party and such
indemnified party (in which case, if the indemnified party notifies the
indemnifying party in writing that the indemnified party elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of
such action or proceeding on behalf of the indemnified party; it being
understood, however, that the indemnifying party shall not, in
connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the
same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one
separate firm of attorneys at any time for all indemnified parties,
which firm shall be designated in writing by the indemnified party).
(d) Contribution. If the indemnification provided for in this
Section 5 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,
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claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the
other or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits received by the indemnifying
party on the one hand and the indemnified party on the other but also
the relative fault of the indemnifying party and indemnified party, as
well as any other relevant equitable considerations. The relative fault
of such indemnifying party and the indemnified parties shall be
determined by reference to, among other things, whether any action in
question, including any untrue 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 parties, 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 limitation set forth
in Section 5(e), 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 Paragraph 5(d) were
determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable considerations referred
to in clauses (i) and (ii) of the immediately preceding paragraph. 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.
(e) Limitation. Anything to the contrary contained in this
Section 5(e) notwithstanding, no holder of Registerable Securities
shall be liable for indemnification and contribution payments
aggregating an amount in excess of the maximum amount received by such
holder in connection with any sale of Registerable Securities as
contemplated herein.
(f) Survival. The obligations of the Company and the
Rightsholders under this Section 5 shall survive the completion of any
offering of Registerable Securities in a registration statement under
this Agreement.
6. Participation in Underwritten Registration. No Rightsholder may
participate in any underwritten registration hereunder unless such Rightsholder
(i) agrees to sell such Rightsholder's securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and to comply with Regulation M under the Exchange Act and
(ii) completes and executes all questionnaires, appropriate and limited powers
of attorney, escrow agreements, indemnities, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangement;
provided, that all such documents shall be consistent with the provisions of
Section 3 hereof.
7. Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
8. Entire Agreement. This Agreement and the documents and instruments
and other agreements among the parties hereto as contemplated by or referred to
herein, (a) constitute the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof and (b) are not intended to confer upon any other person any rights or
remedies hereunder, except as set forth herein.
9. Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or
circumstances will be interpreted so as reasonably to effect the intent of the
parties hereto. The parties further agree to replace such void or unenforceable
provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of
such void or unenforceable provision.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
Each of the parties hereto irrevocably consents to the exclusive jurisdiction of
any state or federal court within the State of New York, in connection with any
matter based upon or arising out of this Agreement or the matters contemplated
herein, agrees that process may be served upon them in any manner authorized by
the laws of the State of New York for such persons and waives and covenants not
to assert or plead any objection which they might otherwise have to such
jurisdiction and such process.
11. Assignment. No party may assign either this Agreement or any
of its rights, interests, or obligations hereunder without the prior written
approval of the other parties.
12. Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified or supplemented
without the written consent of each of the parties hereto. Any of the
Stockholders or the Company may, by written notice to the others, (i) waive any
of the conditions to its obligations hereunder or extend the time for the
performance of any of the obligations or actions of the other, (ii) waive any
inaccuracies in the representations of the other contained in this Agreement or
in any documents delivered pursuant to this Agreement, (iii) waive compliance
with any of the covenants of the other contained in this Agreement and (iv)
waive or modify performance of any of the obligations of the other. No action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action or compliance with any representation,
warranty, condition or agreement contained herein. Waiver of the breach of any
one or more provisions of this Agreement shall not be deemed or construed to be
a waiver of other breaches or subsequent breaches of the same provisions.
13. Notices. All notices, demands, requests, demands and other
communications required or otherwise given under this Agreement shall be in
writing and shall be deemed to have been duly given if: (a) delivered by hand
against written receipt therefor, (b) forwarded by a third party company or
governmental entity providing delivery services in the ordinary course of
business which guarantees delivery the following business day, (c) mailed by
registered or certified mail, return receipt requested, postage prepaid, or (d)
transmitted by facsimile transmission electronically confirmed for receipt, in
full, by the other party no later than 5:00 pm, local time, on the date of
transmission, addressed as follows (i) If to the Company, to Vizacom Inc., 0000
Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxx Xxxx 00000; Attention: President;
Facsimile: (000) 000-0000: with a copy to: Xxxxxxx & Xxxxxxxx, LLC, 00 Xxxxxxx
Xxxxxxxxx Xxxxxxxxx - Xxxxx 000, Xxxxxxx Xxxxx, Xxx Xxxx 00000; Attention: Xxxx
X. Xxxxxxx, Esq.; Facsimile: (000) 000-0000, (ii) if to the Stockholder, to 000
Xxxxx Xxx Xxxxxx, Xxxxxxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, or (iii) in the case
of any of the parties hereto, at such other address as such party shall have
furnished to each of the other parties hereto in accordance with this Section
13. Each such notice, demand, request or other communication shall be deemed
given (i) on the date of such delivery by hand, (ii) on the first business day
following the date of such delivery to the overnight delivery service or
facsimile transmission or (iii) three business days following such mailing.
14. Other Remedies. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
15. Further Assurances. Each party hereto covenants and agrees with all
other parties hereto to promptly execute, deliver, file and/or record such
agreements, instruments, certificates and other documents and to do and perform
such other and further acts and things as any other party hereto may reasonably
request or as may otherwise be necessary or proper to consummate and perfect the
transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed by themselves or their duly authorized respective officers, all as of the
date first written above.
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
VIZACOM INC.
/s/ Xxxx X. Xxxxxxxxxx
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Xxxx X. Schownbart
CFO
