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Exhibit 99.3
XXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
January 8, 2001
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XXXX.XXX, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement is made as of January 8, 2001 (the
"AGREEMENT") by and among Xxxx.xxx, Inc., a Delaware corporation ("XXXX.XXX"),
and each of the investors listed on the signature pages hereof (the
"INVESTORS").
RECITALS
A. Xxxx.xxx desires to sell and issue to the Investors and the
Investors desire to purchase from Xxxx.xxx up to $15 million aggregate principal
amount of 10% Senior Convertible Notes (the "NOTES") of Xxxx.xxx pursuant to a
Note Purchase Agreement of even date herewith (the "NOTE PURCHASE AGREEMENT").
B. In order to induce the Investors to purchase Notes pursuant to the
Note Purchase Agreement, Xxxx.xxx desires to grant to the holders of Notes (the
"HOLDERS") certain registration rights with respect to all of the shares of
Class A common stock, par value $.01 per share, issuable upon conversion of the
Notes (the "Conversion Shares") and all of the Class A common stock, par value
$.01 per share, issuable in payment of interest on the Notes as provided in the
Notes (the "Interest Payment Shares"), all on the terms and conditions set forth
herein.
In consideration of the foregoing and the promises and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the
following respective meanings:
"ACT" means the U.S. Securities Act of 1933, as amended from time
to time.
"AGREEMENT" means this Agreement, as the same may be amended or
supplemented from time to time in accordance with the terms hereof.
"COMMON STOCK" means the shares of Class A common stock, par value
$.01 per share, that Xxxx.xxx is authorized to issue by way of Xxxx.xxx's
Amended and Restated Certificate of Incorporation, and amendments thereto.
"CONVERSION SHARES" has the meaning set forth in the recitals
above.
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"DEMAND REGISTRATION" has the meaning set forth in SECTION 2.01(a)
of this Agreement.
"HOLDERS" has the meaning set forth in the preface above.
"INDEMNIFIED PARTY" and "INDEMNIFYING PARTY" have the meanings set
forth in SECTION 2.07(c) of this Agreement.
"INTEREST PAYMENT SHARES" has the meaning set forth in the
recitals above.
"PIGGYBACK REGISTRATION" has the meaning set forth in Section 2.02
of this Agreement.
"REGISTRABLE SECURITIES" means (i) the Conversion Shares and the
Interest Payment Shares, (ii) any Class A common stock of Xxxx.xxx issued as (or
issuable upon the conversion or exercise of any warrant, right or other security
that is issued as) a dividend or other distribution with respect to, or in
exchange for or in replacement of the securities referenced in clause (i) and
this clause (ii), and (iii) any other shares of capital stock of Xxxx.xxx into
or for which the securities referenced in clauses (i) and (ii) may be converted
into or exchanged pursuant to a recapitalization or reclassification of
Xxxx.xxx's capital stock; provided, however, that Registrable Securities shall
not include any securities that (w) have been registered and sold pursuant to
the Act, (x) have been distributed to the public through a broker, dealer or
market maker pursuant to Rule 144 under the Act, (y) are eligible for public
resale under Rule 144(k) under the Securities Act or in accordance with the law
governing any non-U.S. exchange where the Common Stock is publicly listed or (z)
have been sold in a transaction exempt from registration under the Act so that
all transfer restriction and restrictive legends with respect thereto are
removed upon consummation of such sale.
"REGISTRATION EXPENSES" means all expenses incident to Xxxx.xxx's
performance of or compliance with this Agreement, including, without limitation,
(i) all registration, filing, securities exchange listing, rating agency and
National Association of Securities Dealers fees, (ii) all registration, filing,
qualification and other fees and expenses of complying with securities or blue
sky laws of all jurisdictions in which the securities are to be registered and
any legal fees and expenses incurred in connection with the blue sky
qualification of the Registrable Securities and the determination of their
eligibility for investment under the laws of all such jurisdictions, (iii) all
word processing, duplicating, printing, messenger and delivery expenses, (iv)
the fees and disbursements of counsel for Xxxx.xxx and of its independent public
accountants, including, without limitation, the expenses of any special audits
or "cold comfort" letter required by or incident to such performance and
compliance, (v) in connection with any firm commitment, underwritten offering,
the reasonable fees and disbursements of any one counsel or one accounting firm
retained by the Holders of the Registrable Securities being registered, not to
exceed $15,000 in the aggregate for all of such fees and disbursements, (vi)
premiums and other costs of policies of insurance of Xxxx.xxx against
liabilities arising out of the public offering of the Registrable Securities
being registered to the extent Xxxx.xxx elects to obtain such insurance, and
(vii) any fees and disbursements of underwriters customarily paid by issuers or
sellers of securities (but excluding underwriting discounts and commissions), if
any, relating to the Registrable Securities.
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"SEC" means the U.S. Securities and Exchange Commission.
Other capitalized terms that are used herein that are not defined herein shall
have the respective meanings ascribed to such terms in the Note Purchase
Agreement.
ARTICLE II
REGISTRATION RIGHTS
Xxxx.xxx and the Investors covenant and agree as follows:
Section 2.01 Form S-3 Registration
(a) Demand Registration. Upon the request of the holders of a majority of
the Registrable Securities (including Conversion Shares issuable upon conversion
of Notes and Interest Payment Shares issuable in payment of interest on the
Notes), Xxxx.xxx agrees to, within 30 days of such request, prepare and file a
shelf registration statement on Form S-3 for an offering to be made on a
continuous basis pursuant to Rule 415 (the "Registration Statement") covering
all of the Registrable Securities and to use reasonable commercial efforts to
cause the Registration Statement to become effective as soon as practicable
thereafter (the "DEMAND REGISTRATION"); provided, however, (1) Xxxx.xxx may
delay the filing or effectiveness of the Registration Statement under the Act as
required by this SECTION 2.01, or any sales thereunder, for a period of up to
sixty (60) days if the Board of Directors of Xxxx.xxx determines in good faith
that such Demand Registration would be materially adverse to the interests of
Xxxx.xxx; provided, however, that Xxxx.xxx may not exercise this right more than
twice in any twelve (12) month period and (2) in no event shall Xxxx.xxx be
required to file more than one registration statement; provided, however, that
if, after a Demand Registration has become effective, the offering of
Registrable Securities pursuant thereto is suspended, blocked by any stop order,
injunction or other order of the SEC or any governmental agency or court, or
withdrawn, such Demand Registration will be deemed not to have been effected
pursuant to this Section 2.01.
(b) Selection of Underwriters. If a Demand Registration pursuant to this
SECTION 2.01 involves an firm commitment underwritten offering, the underwriter
or underwriters (including the managing underwriter or underwriters) thereof
shall be a nationally-recognized investment banking firm selected by a majority
of the Holders requesting the underwritten offering, subject to Xxxx.xxx's
approval (and subject to any contractual commitments that Xxxx.xxx may then have
to any investment banking firm). Such approval will not be unreasonably
withheld.
(c) Underwritten Offerings. If requested by the underwriters for any firm
commitment underwritten offering by Holders pursuant to a Demand Registration
under SECTION 2.01(a), Xxxx.xxx will enter into an underwriting agreement with
such underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to the underwriters and to contain such
representations and warranties by Xxxx.xxx and such other terms as are generally
prevailing in agreements of such type, including, without limitation,
indemnities and contribution to the effect and to the extent provided in SECTION
2.07 and 2.08, respectively. The Holders of a majority of the Registrable
Securities participating in such underwritten offering will cooperate
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with Xxxx.xxx in the negotiation of the underwriting agreement. The Holders of
Registrable Securities to be distributed by such underwriters shall be parties
to such underwriting agreement and may, at their option, require that any or all
of the representations and warranties by, and the other agreements on the part
of, Xxxx.xxx to and for the benefit of such underwriters shall also be made to
and for the benefit of such Holders of Registrable Securities and that any or
all of the conditions precedent to the obligations of such underwriters under
such underwriting agreement be conditions precedent to the obligations of such
Holders. Any such Holder shall not be required to make any representations or
warranties to or agreements with Xxxx.xxx or the underwriters other than
representations, warranties or agreements regarding such Holder, such Holder's
title to Registrable Securities and such Holder's intended method of
distribution and any other representation required by law.
SECTION 2.02 Piggyback Registration. (a) Right to Piggyback. If Xxxx.xxx
proposes to register any of its securities under the Act in connection with a
firm commitment underwritten offering (other than registrations solely for the
registration of shares in connection with an employee benefit plan or a merger
or consolidation and other than pursuant to SECTION 2.01) at any time before all
of the Registrable Securities are eligible for public resale by the Holders
pursuant to Rule 144(k) under the Act, whether or not for sale for Xxxx.xxx's
own account, and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), Xxxx.xxx
will at each such time give prompt written notice to all Holders of its
intention to do so and of such Holders' rights under this SECTION 2.02. Upon the
written request of any such Holder made within 30 days after the receipt of any
such notice (which request shall specify the Registrable Securities intended to
be disposed of by such Holder and the intended method of distribution thereof),
Xxxx.xxx will use its reasonable commercial efforts to effect the registration
under the Act of all Registrable Securities which Xxxx.xxx has been so requested
to register by the Holders thereof, to the extent required to permit the
disposition (in accordance with such intended methods thereof) of the
Registrable Securities so to be registered, provided that if, at any time after
giving written notice of its intention to register any securities and prior to
the effective date of the registration statement filed in connection with such
registration, Xxxx.xxx shall determine for any reason not to register or to
delay registration of such securities, Xxxx.xxx may, at its election, give
written notice of such determination to each Holder and, thereupon, (i) in the
case of a determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration (but
not from its obligation to pay the registration expenses under SECTION 2.05 in
connection therewith), without prejudice, however, to the rights of any Holder
entitled to do so to request that such registration be effected as a Demand
Registration under SECTION 2.01, and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such other
securities. No registration effected under this SECTION 2.02 shall relieve
Xxxx.xxx of its obligation to effect any Demand Registration upon request under
SECTION 2.01.
(b) Priority in Piggyback Registrations. If the managing underwriter of a
Piggyback Registration advises Xxxx.xxx in writing that, in its opinion, the
number of shares of Registrable Securities requested or proposed to be included
in such offering exceeds the number that can be sold in such offering without
materially affecting the offering price of any such securities, Xxxx.xxx shall
include in such registration (i) first, to the extent that securities of
Xxxx.xxx are included in such registration, (A) such securities proposed to be
sold by Xxxx.xxx and (B) the
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securities of Xxxx.xxx held by persons who have preferential registration rights
to include such securities in such Piggyback Registration in accordance with the
agreements with respect to such registration rights between Xxxx.xxx and such
holders; and (ii) second, to the extent that such Registrable Securities may be
included in such registration without materially affecting the offering price of
the securities referred to in clause (i), in the opinion of such managing
underwriter, the Registrable Securities requested by the Holders to be included
in such Piggyback Registration pursuant to SECTION 2.02(a) and any other
securities of Xxxx.xxx held by persons other than the Holders having rights to
participate in such Piggyback Registration that are non-preferential to the
Holders of the Registrable Securities, pro rata among all such holders on the
basis of the total number of securities of Xxxx.xxx, including Registrable
Securities, requested by each such holder to be included therein.
(c) Selection of Underwriters. Xxxx.xxx shall select the investment
banker(s) and manager(s) for the offering.
(d) Underwritten Piggyback Registrations. If Xxxx.xxx at any time
proposes to register any of its securities under the Act as to which rights
under this SECTION 2.02 have been exercised and such securities are to be
distributed by or through one or more underwriters, Xxxx.xxx will, if requested
by any Holder as provided in SECTION 2.02(a) and subject to the provisions of
SECTION 2.02 (a) AND (b), use its reasonable commercial efforts to arrange for
such underwriters to include all the Registrable Securities to be offered and
sold by such Holder among the Securities to be distributed by such underwriters.
Such Holders of the Registrable Securities to be distributed by such
underwriters shall be parties to the underwriting agreement between Xxxx.xxx and
such underwriters and may, at their option, require that any or all of the
representations and warranties by, and the other agreements on the part of,
Xxxx.xxx to and for the benefit of such underwriters shall also be made to and
for the benefit of such Holders and that any or all of the conditions precedent
to the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of such Holders. Any such Holder shall
not be required to make any representations or warranties to or agreements with
Xxxx.xxx or the underwriters other than representations, warranties or
agreements regarding such Holder, such Holder's title to Registrable Securities
and such Holder's intended method of distribution and any other representation
required by law.
Section 2.03 Obligations of Xxxx.xxx. In furtherance of its
obligations under SECTION 2.01 OR 2.02 to use its commercially reasonable
efforts to effect the registration of the Registrable Securities, Xxxx.xxx
shall, as expeditiously as reasonably possible,
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective and keep such
registration statement effective until (i) in the case of a Demand Registration,
the time when all Registrable Securities are eligible for sale by the Holders
pursuant to Rule 144(k) and (ii) in the case of a Piggyback Registration, until
90 days after the effectiveness of such registration statement;
(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
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necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration until the earlier of
the time periods specified in SECTION 2.03(a) and such time as all of such
securities have been disposed of in accordance with the intended methods of
disposition by the Holders set forth in such registration statement;
(c) Furnish to the Holders such numbers of copies of such registration
statement and of each amendment and supplement thereto (in each case including
all exhibits) and prospectus, including any preliminary prospectus, in
conformity with the requirements of the Act, and such other documents as the
Holders may reasonably request in order to facilitate the disposition of the
Registrable Securities;
(d) Use its commercially reasonable efforts to register and qualify
the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions (domestic or foreign) as each
Holder thereof shall reasonably request, to keep such registration or
qualification in effect for so long as such registration statement remains in
effect, and to take any other action which may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in such
jurisdictions of the securities owned by such Holder, except that Xxxx.xxx shall
not for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it would not but for the
requirements of this SECTION 2.03(d) be obligated to be so qualified, to subject
itself to taxation in any such jurisdiction or to consent to general service of
process in any such jurisdiction;
(e) Use its reasonable commercial efforts to (i) obtain the withdrawal
of any order suspending the effectiveness of such registration statement or
sales thereunder at the earliest possible time and (ii) cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the Holders thereof to consummate the disposition of such Registrable
Securities;
(f) In connection with any firm commitment underwritten offering,
furnish to each Holder a signed counterpart, addressed to such Holder (and the
underwriters, if any) of
(i) an opinion of counsel for Xxxx.xxx dated the date of the
closing under the underwriting agreement, reasonably satisfactory in form
and substance to such underwriter, and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and dated the date of the closing under the
underwriting agreement), signed by the independent public accountants who
have certified Xxxx.xxx's financial statements included in such
registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
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 the underwriters in underwritten public
offerings of securities;
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(g) Notify in writing each Holder, at any time when a prospectus
relating thereto is required to be delivered under the Act, (a) upon discovery
that, or upon the happening of any event 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 under which they were made, and (b) of any request
for any amendment of or supplement to any registration statement or other
document relating to such offering promptly after receipt of such request from
the SEC or any other regulatory body or other body having jurisdiction and, in
either case, at the request of any such Holder promptly 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 such 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 under which they were made;
(h) Otherwise comply with all applicable federal and state securities
laws and rules and regulations of the SEC, and make available to the Holders, as
soon as reasonably practicable, an earning statement covering the period of at
least twelve months, but not more than eighteen months, beginning with the first
full calendar month after the effective date of such registration statement,
which earning statement shall satisfy the provisions of Section 11(a) of the Act
and Rule 158 under the Act, and will furnish to each Holder draft and final
versions of each registration statement and prospectus used in connection
therewith prior to the filing thereof, and any amendment or supplement to such
registration statement or prospectus and shall not file any thereof to which any
Holder shall have reasonably objected on the grounds that such registration
statement, prospectus, amendment or supplement does not comply in all material
respects with the requirements of the Act or the rules or regulations
thereunder;
(i) Provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from and
after a date not later than the effective date of such registration statement;
and
(j) Use its reasonable commercial efforts to list all Registrable
Securities covered by such registration statement on each securities exchange
and inter-dealer quotation system on which similar securities issued by Xxxx.xxx
are then listed.
Xxxx.xxx may require each Holder as to which any registration is being effected
to furnish Xxxx.xxx such information regarding such Holder and the distribution
of such securities as Xxxx.xxx may from time to time reasonably request in
writing.
Section 2.04 Furnish Information. It shall be a condition precedent to
the obligations of Xxxx.xxx to take any action pursuant to Article 2 that the
Holders shall furnish to Xxxx.xxx such information regarding such Holders, the
Registrable Securities held by such participating Holders and the intended
method of disposition thereof as Xxxx.xxx or its appointed agents shall
reasonably request and as shall be required in connection with the action to be
taken by Xxxx.xxx.
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Section 2.05 Registration Expenses. In the case of any registration
effected pursuant to SECTION 2.01 OR 2.02, Xxxx.xxx shall bear all Registration
Expenses; provided, however, that the Holders shall bear the fees and costs of
its own counsel (other than to the extent provided in the definition of
"Registration Expenses" in connection with a firm commitment, underwritten
offering) and all brokers' discounts and commissions with respect to the
Registrable Securities sold by such Person.
Section 2.06 Use of Prospectus.
Each Holder agrees that if Xxxx.xxx notifies the Holder in writing
of the happening of any event as a result of which the prospectus included in
such registration statement contains an untrue statement of a material fact or
omits any fact necessary to make the statements therein not misleading, the
Holder will discontinue immediately its disposition of securities pursuant to
the registration statement until the Holder receives copies of an amended or
supplemented prospectus, and if so directed by Xxxx.xxx, will deliver to
Xxxx.xxx all copies then in Holder's possession of the prospectus relating to
such Registrable Securities current at the time of receipt of such notice.
Section 2.07 Indemnification. If any Registrable Securities are included
in a registration statement pursuant to SECTION 2.01 OR 2.02, then,
(a) Xxxx.xxx shall indemnify and hold harmless the Holders, agents for
and officers and directors of the Holders, any underwriter of the Registrable
Securities, and each Person, if any, who controls any such Person within the
meaning of the Act, against any losses, claims, damages or liabilities, joint or
several (or actions in respect thereof), to which they may become subject under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of material fact contained in such registration
statement, including any preliminary prospectus or final prospectus contained in
the registration statement, or any amendments or supplements to the registration
statement, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or any violation by Xxxx.xxx of any
rule or regulation promulgated under the Act or any state securities law or rule
or regulation applicable to Xxxx.xxx, and will reimburse the Holders, the agents
for, and officers and directors of the Holders, any underwriter of the
Registrable Securities, or any such controlling Person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that Xxxx.xxx shall not be liable to any Holder in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any untrue statement or omission based upon and in conformity with information
furnished to Xxxx.xxx in writing by such Holder.
(b) Each Holder shall indemnify and hold harmless Xxxx.xxx, each of
its directors and each of its officers who have signed such registration
statement against any losses, claims, damages or liabilities to which Xxxx.xxx
or any such director or officer may
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become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue or alleged
untrue statement of any material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained in the
registration statement or any amendments or supplements to the registration
statement, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in such registration statement, preliminary
prospectus, or amendments or supplement thereto, in reliance upon and in
conformity with information furnished by the Holder in writing expressly for the
purpose of inclusion in such registration statement, preliminary prospectus or
amendments or supplements, and the Holders will reimburse any legal or other
expenses actually and reasonably incurred by Xxxx.xxx or any such director,
officer or controlling Person in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, that the Holder's
liability under this SECTION 2.06(b) shall not exceed the amount of the gross
proceeds of the offering of the Holder's Registrable Securities included
therein.
(c) Each party entitled to indemnification (the "INDEMNIFIED PARTY")
shall give notice to the party required to provide indemnification
("INDEMNIFYING PARTY") promptly after such Indemnified Party has knowledge of
any claim as to which indemnity may be sought, and shall permit the Indemnifying
Party (at its expense) to assume the defense of any such claim or any litigation
resulting therefrom; provided, however, that counsel for the Indemnifying Party,
who shall conduct the defense of such claim or litigation, shall be reasonably
satisfactory to the Indemnified Party, and the Indemnified Party may participate
in such defense at such party's expense; provided, further, that the failure by
any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this SECTION 2.06, except to the
extent that the failure results in an omission of actual notice to the
Indemnifying Party and such Indemnifying Party is materially damaged as a result
of the failure to give notice. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to the entry of any judgment or enter into any settlement that does not
include as an unconditional term the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability with respect to such claim or
litigation.
Section 2.08 Contribution. (a) If the indemnification provided for in
SECTION 2.07 is unavailable to the Indemnified Party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each such 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 or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party on the one hand and the Indemnified
Party on the other in connection with the statement or omission which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative fault shall
be determined by reference to, among other things, whether the untrue statement
(or alleged untrue
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statement) of a material fact or the omission (or alleged omission) to state a
material fact relates to information supplied by the Indemnifying Party or the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and each Holder agree that it would not be just and equitable if
contribution pursuant to this SECTION 2.08 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to in this ARTICLE 2 shall be deemed to
include any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
(b) Notwithstanding anything to the contrary contained herein,
the obligation of each Holder to contribute pursuant to this SECTION 2.08 is
several and not joint and no selling Holder shall be required to contribute any
amount in excess of the amount by which the total price at which the Registrable
Securities of such 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 alleged untrue statement) or omission (or
alleged omission).
(c) No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
Section 2.09 Transfer of Registration Rights. The registration rights of
the Investor under this ARTICLE 2 may be assigned and transferred (i) by each
Holder to any Affiliate of the Holder to whom any of the Notes or Conversion
Shares owned by the Holder are transferred, and (ii) by the Holder to any
transferee who acquires a majority of the Registrable Securities (adjusted to
reflect subsequent stock splits, combinations, stock dividends and
recapitalizations) initially issued to such Holder; provided, however, that
Xxxx.xxx is given written notice by the Holder at the time of such assignment
and transfer stating the name and address of the transferee and identifying the
securities with respect to which the rights under this ARTICLE 2 are being
assigned and transferred. For the purposes of this SECTION 2.09, a change in
control of an Affiliate of the Holder holding shares entitling such Affiliate to
the registration rights hereunder, such that such Affiliate is subsequent to
such change of control no longer an Affiliate of the Holder, shall be deemed an
attempted transfer of the registration rights hereunder and such former
Affiliate of the Holder shall not be entitled to such registration rights except
to the extent such transfer would be permitted under CLAUSE (II) above.
ARTICLE III
MISCELLANEOUS
Section 3.01 Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties hereto
(including permitted transferees of any shares of
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Registrable Securities). Nothing in this Agreement is intended to confer upon
any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations or liability under or by reason of
this Agreement, except as expressly provided in this Agreement.
Section 3.02 Notices.
All notices and other communications required or permitted
hereunder shall be in writing, shall be effective when given, and shall in any
event be deemed to be given upon receipt or, if earlier, (a) five (5) days after
deposit with the U.S. Postal Service or other applicable postal service, if
delivered by first class mail, postage prepaid, (b) upon delivery, if delivered
by hand or transmitted via facsimile (confirmed by letter sent by first class
mail, postage prepaid with the U.S. Postal Service or other applicable postal
service), or (c) one business day after the business day of deposit with Federal
Express or similar reputable, international overnight courier, freight prepaid.
Such notices, demands and other communications shall be sent to Xxxx.xxx at the
address set forth below and to any Holder of Registrable Securities at such
address set forth on Schedule A to the Note Purchase Agreement or at such
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. The address for Xxxx.xxx
is:
Xxxx.xxx, Inc.
00 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
X.X.X.
Attention: Xxxxxx Xxxxxxxx, Chief Executive Officer
Facsimile No.: 000-000-0000
with a copy at the same address to:
Xxxxx X. Xxxxxxxx, Esq.
or at such other address as a party may designate by ten (10) days advance
written notice to the other party pursuant to the provisions above.
Section 3.03 Governing Law; Forum and Consent to Jurisdiction.
(a) Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the law of the State of New York excluding choice-of-law principles of the law
of such State that would require the application of the laws of a jurisdiction
other than such State.
(b) Submission to Jurisdiction; Service of Process. (i)
Xxxx.xxx and the Holders agree that any action or proceeding brought by the
Holders in connection with this
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Agreement may be brought (and any action or proceeding brought by Xxxx.xxx
against the Holders in connection herewith shall exclusively be brought) in the
courts of the State of New York sitting in the Borough of Manhattan or of the
United States of America for the Southern District of New York and, by execution
and delivery of this Agreement, Xxxx.xxx and the Holders hereby irrevocably
waive any objection, including, without limitation, any objection to the laying
of venue or based on the grounds of forum non conveniens, which it may now or
hereafter have to the bringing of any such action or proceeding by Xxxx.xxx or
the Holders in such non-exclusive jurisdictions.
(ii) Xxxx.xxx hereby irrevocably appoint CT Corporation System (the "Process
Agent"), with an office on the date hereof at 0000 Xxxxxxxx, Xxx Xxxx, XX 00000,
Xxxxxx Xxxxxx of America, as their agent to receive on their behalf service of
copies of the summons and complaint and any other process that may be served in
any such action or proceeding. Xxxx.xxx irrevocably consents to the service of
process of any of the aforesaid courts in any such action or proceeding by the
mailing of copies thereof by registered mail, postage prepaid, to it at its
address set forth in this Agreement or to the Process Agent at its address
specified above.
SECTION 3.04. Waivers; Amendments. The waiver by the undersigned of
any of the provisions of this Agreement shall not operate or be construed as a
waiver of any subsequent breach. This Agreement may be amended, and any
provision of this Agreement may be waived, only by a written amendment executed
by (i) in the case of any amendment affecting the rights or obligations of
Xxxx.xxx, Xxxx.xxx and (ii) in the case of any amendment affecting the rights or
obligations of the Holder, Holders of a majority of the Registrable Securities
then outstanding (including Conversion Shares issuable upon conversion of then
outstanding Notes and Interest Payment Shares issuable in payment of interest on
the Notes).
SECTION 3.05. Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect the construction
and interpretation of this Agreement.
SECTION 3.06. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
SECTION 3.07. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument. This Agreement may contain more
than one counterpart of the signature page and may be executed by the affixing
of the signatures of each of the parties hereto to one of these counterpart
signature pages. All of the counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
SECTION 3.08. Aggregation of Stock. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
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SECTION 3.09. Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party hereto by virtue
of the authorship of any of the provisions of this Agreement.
SECTION 3.10. Entire Agreement. This Agreement contains the entire
agreement of the parties hereto. The parties hereto are not bound by any oral
statements that are made outside of this Agreement.
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WHEREAS, the parties hereto have executed this Agreement as of
the date first above written.
XXXX.XXX, INC.
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxx
Chief Executive Officer
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INVESTORS
FEDERAL PARTNERS, L.P.
By: Ninth Floor Corporation, its general partner
By:/s/ Xxxxx X. Xxxxx
--------------------------------------------
Xxxxx X. Xxxxx
President
15
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INVESTORS CONT'D
NATIONAL FEDERATION OF INDEPENDENT BUSINESS
EMPLOYEE PENSION TRUST
PUBLIC EMPLOYEE RETIREMENT SYSTEM OF IDAHO
CITY OF MILFORD PENSION & RETIREMENT FUND
CITY OF STAMFORD FIREMEN'S PENSION FUND
THE XXXXXXX XXXXXX FOUNDATION
ASPHALT GREEN, INC.
XXXX XXXXXX FOUNDATION
XXXXX FOUNDATION
ROANOKE COLLEGE
A. XXXXX XXXXXXX
XXXXX XXXXXXX XXXXXX
XXXXXX FAMILY LLC
XXXXX XXXXXXX
HBL CHARITABLE UNITRUST
XXXXXX XXXXXXXX
XXXXX XXXX
XXXXXX X. XXXXXXX
PSYCHOLOGY ASSOCIATES
XXXXX XXXXXX
XXXX X. XXXXXXXX
XXXXXX CAPITAL, LLC
THE XXXXXX INVESTMENT PARTNERSHIP I, L.P.
XXXXXXX X. XXXXX
XXXXXX TRUST CO.OF THE BAHAMAS LTD. AS
TRUSTEE U/A/D 11/30/93
XXXXXX X. XXXXXX
XXXXX XXXX XXXXXXX
THEEUWES FAMILY TRUST, XXXXX XXXXXXXX TRUSTEE
XXXXXXX X. XXXXX
XXXXX FAMILY LLC
XXXXXX X. XXXXXXX
XXXXXX XXXXXX XXXXXXX
XXXXXX AND XXX-XXXXX XXXXXX
XXXX X. & XXXXXXXXX X. XXXXXX
XXXXXXX INVESTMENT PARTNERS LP
By: XXXXXXX CAPITAL GROUP, LLC, as attorney in
fact
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Managing Director
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