REGISTRATION UNDERTAKING
This Registration Undertaking (this "Agreement") is made and
entered into as of September 18, 1996 by American Film Technologies, Inc., a
Delaware corporation (the "Company") for the benefit of Xxx Xxxxxxx (the
"Holder") pursuant to Section 2 of that certain Stock Purchase Agreement dated
as of October ___, 1996 between the Company and the Holder (the "Purchase
Agreement").
NOW, THEREFORE, in consideration of the mutual representations,
covenants and agreements contained herein, the Company hereto agrees and
undertakes as follows:
1. Piggyback Registration.
a. Registrable Securities: The term "Registrable Securities" means each
of the following:
(i) the Shares as such term is defined in the Purchase
Agreement; and
(ii) any other shares or securities or distributions resulting
from a reverse split, stock split, stock dividend,
reclassification of the capital stock of the Company,
consolidation or reorganization of the Company, and any
shares or other securities of the Company or of any
successor company which the Holder may receive by virtue of
their ownership of the Shares;
provided, however, that any of the securities described in the foregoing clauses
(i) and (ii) shall be treated as Registrable Securities only if and so long as
(x) they are held by the Holder , family members of the Holder or a personal or
family trust controlled by the Holder, (y) have not been sold or disposed of,
pursuant to a registration statement covering such Registrable Securities which
has been declared effective pursuant to the Securities Act of 1933, as amended
(the "Act") or if such securities have not been sold or disposed of such
registration statement including the Registrable Securities remains effective;
or (z) have not been sold or disposed of to the public pursuant to Rule 144 (or
any similar provision then in force) promulgated under the Act.
b. Piggyback Registration Rights. Subject to the terms and conditions
contained in this Agreement, during the Piggyback Period, as
hereinafter defined, the Holder shall be entitled
-1-
to include in any Piggyback Registration Statement, as hereinafter
defined, all Registrable Securities.
c. Piggyback Period. Except as otherwise provided herein, the Holder
shall be entitled to include all or any portion of the Registrable
Securities held by Holder in a Piggyback Registration Statement, as
such term is hereinafter defined, during the "Piggyback Period"
defined as the period commencing as of the date hereof and ending on
the first to occur of: (i) October 18, 2006; (ii) all of the
Registrable Securities which Holder desires to sell can be sold in one
sale pursuant to Rule 144(k) or any successor rule of similar
provision of the Act; OR (iii) the sale of the Registrable Securities
have been included in one or two Piggyback Registration Statements (as
hereinafter defined) which has been declared effective by the
Securities and Exchange Commission (the "SEC") and if the Registrable
Securities are included therein, the effectiveness thereof is not
terminated prior to the contemplated distribution period ("Effective
Piggyback Registration Statement") or if the sale of all of the
Registrable Securities have not be so included in such Effective
Piggyback Registration Statements, such failure is a result of
Holder's failure to timely deliver to the Company a Supplemental
Notice with respect thereto as set forth in Section 1(e) below.
d. Notice of Registration. In the event that during the Piggyback Period
the Company proposes to file a registration statement to register
under the Act, the sale or other transfer of any class of its
securities of which the Registrable Securities are a part: (i) by the
Company (the "Company Securities"); or (ii) by any other present or
future holder of the Company's securities (the "Shareholder
Securities") (the Company Securities and Shareholder Securities
hereinafter collectively referred to as the Registration Securities),
the Company shall deliver to the Holder, at least twenty (20) days
prior to the filing with the Commission of the registration statement
covering such Registration Securities (the "Piggyback Registration
Statement"), a written notice (a "Registration Notice") of its
intention so to register such offering of Registration Securities and
the manner
-2-
in which such Registration Securities are proposed to be sold.
e. Supplemental Notice. In the event that a Registration Notice shall
have been delivered, the Holder may elect to include in the offering
covered by the Piggyback Registration Statement all or a portion of
the Registrable Securities by delivering notice to the Company (the
"Supplemental Notice") on or before the tenth (10th) day after
delivery of the Registration Notice specifying the number of shares of
Registrable Securities (the "Piggyback Securities") proposed to be
sold or otherwise transferred by the Holder. In the event that during
the Piggyback Period, Holder fails to timely deliver Supplemental
Notices including all Registrable Securities with respect to two
Effective Piggyback Registration Statements then and in such event all
Piggyback Registration Rights of the Holder shall automatically
terminate without any Further action on the party of the Company.
f Registration of Supplemental Registration Securities. Subject to the
terms, conditions, restrictions and limitations contained elsewhere
herein, from and after receipt of a Supplemental Notice, the Company
shall use its best efforts to cause the Piggyback Securities to be
registered under the Act pursuant to the Piggyback Registration
Statement, subject to the sale or other transfer thereof prior to the
effectiveness of the Piggyback Registration Statement, and to effect
and to comply with all qualifications, compliances and requirements
necessary to permit the sale or other transfer of the Piggyback
Securities pursuant to the Piggyback Registration Statement,
including, without limitation, qualifications under the applicable
blue sky or other state securities laws.
-3-
g. Priorities.
(i) Underwritten Offerings by the Company. If, in the case of
delivery of a Supplemental Notice relating to an underwritten
offering of securities proposed to be made by the Company, the
managing underwriter shall make a determination, in its sole
discretion, in a writing delivered to the Company and the
Holder that inclusion of some or all of the Piggyback
Securities together with the Registration Securities, which are
to be included in such Piggyback Registration Statement would
have an adverse effect on the proposed distribution of the
Company Securities ("Adverse Distribution Effect"), then the
Company shall, upon written notice to the Holder and to all
holders of Shareholder Securities included in such Piggyback
Registration Statement only the number of securities other than
Company Securities which, in the sole discretion of the
managing underwriter, can be sold without any such Adverse
Distribution Effect, selected from the Holder and the holders
of Shareholder Securities seeking to exercise piggyback
registration rights, on a pro rata basis in proportion to the
number of securities sought to be included in such Piggyback
Registration Statement.
(ii) Underwritten Offerings of Shareholder Securities. If, in the
case of delivery of a Supplemental Notice by the Holder
relating to an underwritten offering of Shareholder Securities
in connection with a demand registration right by such holders,
where the managing underwriter shall make a determination, in
its sole discretion, in a writing delivered to the Company and
the Holder and holders of Shareholder Securities included in
such Piggyback Registration Statement that inclusion of some or
all of the Registrable Securities would have an Adverse
Distribution Effect on the proposed sale of the Shareholder
Registration Securities then the Company shall, upon written
notice to the Holder and holders of such Shareholder
Securities, include in such registration only the number of
-4-
Securities which, in the sole discretion of the managing
underwriter, can be sold without an Adverse Distribution Effect
on the proposed sale of the Shareholder Securities covered by
the Demand Registration Right, selected from the Holder and the
holders of Shareholder Securities seeking to exercise piggyback
registration rights, on a pro rata basis in proportion to the
number of securities sought to be included in such Piggyback
Registration Statement.
(iii) Non-Underwritten Offerings. The Holder shall have the right to
include all Registrable Securities in a Piggyback Registration
Statements of non-underwritten offerings of securities of the
Company.
h. Underwriters. In the case of Piggyback Registration Statements, the
underwriter designated by the initiating party shall serve as the
managing underwriter for the entire offering. Holder shall be entitled
to utilize any other underwriter in connection with the sale of its
securities unless the managing underwriter reasonably determines
participation by such underwriter in the offering would materially
delay or otherwise be materially adverse to the transaction.
i. Exceptions. The provisions of this Section shall not apply to (i) any
registration statement on Form S-8 or Form S-4, or any successor form,
or (ii) any registration statement covering only securities proposed
to be issued in exchange for securities or assets of another
corporation.
2. Restrictions on Public Sale by the Holder. Notwithstanding anything
contained herein to the contrary, if the Holder has received a Registration
Notice during the Piggyback Period, for so long as the Holder holds one
percent (1%) or more, on a fully diluted basis of such Registrable
Securities, the Holder agrees not to effect any public sale or distribution
-5-
of any such securities during the fifteen (15) days prior to, and during
the 90-day period beginning on, the effective date of such registration
statement (or until its termination or abandonment, if earlier), except for
a sale pursuant to such registration statement, if permitted.
3. Registration Procedures.
a. Whenever Piggyback Securities are included in a Piggyback Registration
Statement pursuant to Section 1 of this Agreement, subject to the
terms, conditions, restrictions and limitations contained elsewhere
herein, the Company agrees to:
(i) include in such Piggyback Registration Statement the sale of the
Piggyback Securities in accordance with the intended method of
distribution thereof, and use commercially reasonable efforts to
cause such Piggyback Registration Statement to become effective;
(ii) prepare and file with the SEC such amendments and post-effective
amendments to the Piggyback Registration Statement as may be
necessary to keep the Piggyback Registration Statement effective
following the effective date for such period as may be required
to meet the prospectus delivery and all other requirements under
the Act, but not longer than one hundred thirty-five (135) days;
cause the prospectus to be supplemented by any required
prospectus supplement, and, as so supplemented, to be filed
pursuant to Rule 424 under the Act; and comply with the
provisions of the Act applicable to it with respect to the
disposition of all securities covered by such registration
statement during the applicable period in accordance with the
intended methods of disposition by sellers thereof set forth in
such Piggyback Registration Statement or supplement to the
prospectus;
(iii) furnish to the Holder and the underwriter or underwriters, if
any, without charge, at least one signed copy of the Piggyback
Registration Statement and all post-effective amendments thereto,
including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including
those incorporated by reference) as soon as such documents become
available to the Company, and such number of conformed copies
thereof and such number of copies of the Prospectus (including
each preliminary prospectus) and any amendment or supplements
thereto, and any documents incorporated by reference therein, as
the Holder or underwriter may request, as soon as such documents
become available to the Company, in order to facilitate the
disposition of the Piggyback Securities (it being understood that
-6-
the Company consents to the use of the prospectus and any
amendment or supplement thereto by the Holder and the underwriter
or underwriters, if any, in connection with the offering and sale
of the Piggyback Securities);
(iv) on or prior to the date on which the Piggyback Registration
Statement is declared effective, use commercially reasonable
efforts to register or qualify the Piggyback Securities under
such other securities or blue sky laws of such jurisdictions as
the managing underwriter, if any, or the Holder, if there is no
underwriter, reasonably requests, keep each such registration or
qualification effective during the period such registration
statement is required to be kept effective and do any and all
other acts and things which may be reasonably necessary or
advisable to consummate the disposition in such jurisdictions of
the Piggyback Securities; provided that the Company shall 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 clause (iv), (B) subject itself to general taxation
in any such jurisdiction, (C) consent to general service of
process in any such jurisdiction, or (D) undertake compliance
with substantive requirements of the blue sky laws or regulations
of a jurisdiction which are unreasonably burdensome or onerous,
including escrow requirements;
(v) use commercially reasonable efforts to cause the Piggyback
Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by
virtue of the business and operations of the Company to
consummate the disposition of the Piggyback Securities;
(vi) (A) notify the managing underwriter, if any, or the Holder, if
there is no underwriter, (and if requested by any such person,
confirm such advice in writing) when a prospectus relating to the
sale of the Piggyback Securities is required to be delivered
under the Act or (B) notify the managing underwriter, if any, or
the Holder, if there is no underwriter (and if requested by any
such person, confirm such advice in writing) of the happening of
any event as a result of which the prospectus included in the
Piggyback Registration Statement relating to the sale of the
Piggyback Securities contains an untrue statement of a material
fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading and prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of
the Piggyback Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(vii) enter into customary agreements (including, in the case of an
-7-
underwritten offering, an underwriting agreement in customary
form with customary indemnity provisions) and make such
representations and warranties to the underwriters or the Holder,
if there is no underwriter, as in form and substance and scope
are customarily made by issuers to underwriters in secondary
underwritten offerings;
(viii) notify the managing underwriter, if any, or the Holder, if
there is no underwriter, of any stop order or other suspension of
effectiveness of the Piggyback Registration Statement;
(ix) make every commercially reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of the
Piggyback Registration Statement at the earliest possible moment;
(x) cooperate with the managing underwriter, if any, and counsel for
the underwriters, or the Holder, if there is no underwriter, and
their counsel in connection with any filings required to be made
with the National Association of Securities Dealers, Inc. (the
"NASD");
(xii) if requested by the managing underwriter, if any, or the
Holder, if there is no underwriter, promptly incorporate in a
prospectus supplement or post-effective amendment such
information relating to the distribution of securities and the
timing thereof as the managing underwriter, if any, or the
Holder, if there is no underwriter, reasonably requests to be
included therein, including, without limitation, the number of
Piggyback Securities being sold by the Holder to the underwriter
or underwriters, and the purchase price being paid therefor by
such underwriter or underwriters and any other terms of the
underwritten offering of the Piggyback Securities; and make all
required filings of such prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
(xiii) as promptly as practicable after filing with the SEC of any
document which is incorporated by reference into a Piggy-back
Registration Statement, deliver a copy of such document to the
Holder;
(xiv) cooperate with the managing underwriter, if any, or the Holder,
if there is no underwriter, to facilitate the timely preparation
and delivery of certificates (not bearing any restrictive
legends) representing securities to be sold under the Piggyback
Registration Statement and enable such securities to be in such
denominations or amounts, as the case may be, and registered in
-8-
such names as the managing underwriter, if any, or the Holder, if
there is no underwriter, may reasonably request;
(xv) notify the Holder, if there is no underwriter, or the managing
underwriter, if any, promptly (and if requested by any such
person, confirm such advice in writing) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Piggyback Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding
for such purpose; and
(xvi) cause the Piggyback Securities to be listed on each securities
exchange or quoted on the NASDAQ National Market on which similar
securities issued by the Company are then listed or quoted, and
provide that the applicable listing or quotation requirements are
satisfied.
b. The Holder shall provide to the Company such information regarding the
distribution of the Piggyback Securities and such other information
relating to the Holder and his or her ownership of securities of the
Company as the Company may from time to time reasonably request in
writing.
c. Notwithstanding anything contained herein to the contrary, the SEC may
issue a "stop order" or refuse to allow the effectiveness of any
Piggyback Registration Statement or the Company, may in its sole
discretion terminate any Piggyback Registration Statement at any time
prior to or after the effectiveness thereof without liability to the
Holder. In such event, the Company shall promptly notify the Holder
thereof.
d. The Holder agrees, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(b) hereof,
he or she will forthwith discontinue distribution of Piggyback
Securities.
4. Registration Expenses
All expenses incident to the Company's performance
of or compliance with this Agreement including, without limitation (i) all
registration and filing fees, all fees and expenses associated with filings
required to be made with the NASD, as may be required by rules and regulations
of the NASD (other than fees required in excess of fees which would otherwise
-9-
pertain in the event that the Holder is a member of the NASD), fees and expenses
of compliance with securities or blue sky laws (including fees and disbursements
of counsel in connection with blue sky qualifications for the Registrable
Securities), rating agency fees, printing expenses (including expenses of
printing certificates for the Registrable Securities in a form eligible for
deposit with the Depository Trust Company and of printing prospectuses if the
printing of prospectuses is reasonably requested by the holders of a Majority
Amount), messenger and delivery expenses, (ii) internal expenses (including,
without limitation, all salaries and expenses of their officers and employees
performing legal or accounting duties), securities acts liability insurance (if
the Company elects to obtain such insurance), (iii) fees and expenses of counsel
for the Company and its independent certified public accountants (including the
expenses of any special audit or "cold comfort" letters required by or incident
to such performance), (iv) fees and expenses of any special experts retained by
the Company in connection with such registration, and (v) fees and expenses of
other persons retained by the Company, (all such expenses being herein called
"Registration Expenses"), shall be paid by the Company, provided that in no
event shall Registration Expenses include (A) any underwriting discounts or
commissions attributable to the sale of the Registrable Securities, (B) any fees
and expenses of counsel for the Holder if such counsel is different than counsel
for the Company or any accountant or other professional engaged by the Holder,
or (C) any direct out-of-pocket expenses of the Holder.
In the event that following effectiveness of a Piggyback
Registration Statement, pursuant to which the Holder is a selling stockholder,
it becomes necessary for the Company to prepare and file a supplemental
prospectus or amended prospectus in order to maintain the effectiveness of such
registration statement, the cost thereof shall be apportioned as set forth
above.
5. Indemnification; Contribution
a. Indemnification by the Company. To the extent that any Piggyback
Securities are included in a Piggyback Registration Statement pursuant
to the terms hereof, the Company agrees to indemnify, to the full
extent permitted by law, the Holder, and any agent therefor against
all losses, claims, damages, liabilities and expenses (including
reasonable legal fees and expenses) arising out of or based upon any
such untrue statement or alleged untrue statement of a material fact
-10-
contained in any registration statement, prospectus or preliminary
prospectus, or any amendment thereof or supplement thereto, or 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 or preliminary prospectus, in light of the
circumstances under which they are made) not misleading, except
insofar as such losses, claims, damages arise out of or are based upon
an untrue statement or omission so made in reliance upon and in
conformity with information with respect to the Holder furnished in
writing to the Company by the Holder or its representatives expressly
for use therein or any acts of negligence or misfeasance by Holder.
Nothing contained in Section 5(a) shall waive or effect any rights
Holder may otherwise have under law and equity.
b. Indemnification by the Holder. In connection with any Piggyback
Registration Statement in which the Holder is a selling stockholder,
the Holder agrees to indemnify, to the extent permitted by law, the
Company, its directors, officers, employees and agents and each person
who controls the Company (within the meaning of applicable federal and
state securities laws), and any investment advisor thereof or agent
therefor against any losses, claims, damages, liabilities and expenses
(including reasonable legal fees and expenses) resulting from (i) any
untrue statement or alleged untrue statement of a material fact
contained in the registration statement, prospectus or preliminary
prospectus, or any amendment thereof or supplement thereto, or 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
-11-
case of a prospectus or prelimi nary prospectus, in the light of the
circumstances under which they were made) not misleading, to the
extent, but only to the extent, that such untrue statement or omission
is made in reliance upon and in conformity with or failed to be
contained in any information with respect to the Holder furnished in
writing by the Holder or its representatives specifically for
inclusion therein; (ii) Holder's negligence; or (iii) Holder's
misfeasance. In no event shall the liability of the Holder hereunder
be greater in amount than the dollar amount of the proceeds received
by the Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
c. Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such person of any written
notice of the commencement of any action, suit or proceeding against
such person or investigation thereof made in writing or for which such
person will claim indemnification or contribution pursuant to this
Agreement, but the failure so to give written notice to the
indemnifying party shall not relieve it from any liability which it
may have to any indemnified party hereunder except if and to the
extent such indemnifying party is materially prejudiced by such
failure nor shall it relieve the indemnifying party from any liability
which it may have to any indemnified party other than under this
Agreement. The indemnified party shall permit the indemnifying party
to assume the defense of such claim with counsel reasonably
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and
the indemnifying party and the indemnified party shall have reasonably
concluded that there may be defenses available to it that are
different from or additional to those available to the indemnifying
party or if the interests of the indemnified party may reasonably be
deemed to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate counsel
and to control the defense of such action, with the reasonable fees
and expenses of such separate counsel to be reimbursed by the
indemnifying
-12-
party. If the indemnifying party is not entitled to, or does not,
assume the defense of a claim, it will not be obligated to pay the
fees and expenses of more than one counsel (and any required local
counsel) with respect to such claim. No indemnified 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 of a
release from all liability in respect to such claim or litigation. The
indemnifying party will not be subject to any liability for any
settlement made without its consent, which shall not be unreasonably
withheld.
d. Conflict with Underwriting Agreement. In the event that any provision
of any indemnification clause in the underwriting agreement to which
the Company and the Holder are parties in connection with the
registration statement or prospectus in question differs from a
provision in this Section 5, such provision in the underwriting
agreement shall determine the Holder's rights visa via the Underwriter
in respect thereof. Notwithstanding the foregoing, the provisions of
Section 5 hereof shall control with respect to the rights of the
Company and the Holder with regards to this Agreement or the
underwriting agreement.
-13-
6. Participation in Underwritten Registrations
The Holder may not participate in any underwritten
registration hereunder unless it (a) agrees to sell the Piggyback Securities, as
the case may on be, the basis provided in the underwriting arrangements approved
by it, (b) completes and executes all questionnaires, powers of attorneys,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements and (c) agrees to pay all
underwriting discounts and commissions on the Piggyback Securities sold under
such underwriting arrangements.
7. Miscellaneous
a. Entire Agreement. This Agreement contains the entire agreement among
the parties hereto and except as set forth herein, supersedes all
prior oral or written agreements, promises, representations,
commitments or understandings with respect to the matters provided for
herein.
b. Amendment. This Agreement may be modified or amended only by a writing
duly executed by the parties hereto.
c. Assignment and Binding Effect. This Agreement and the rights and
obligations of any party hereunder may not be assigned by any party
without the prior written consent of the other party hereto.
Notwithstanding the foregoing, the Company may merge or be acquired by
another corporation without the consent of the Holder so long as the
surviving corporation shall agree to be bound by the terms of this
Agreement. All covenants, agreements, and indemnities in this
Agreement by and on behalf of any of the parties hereto shall be
binding on and inure to the benefit of their respective successors and
permitted assigns.
-14-
d. Waivers. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof
(whether or not similar), nor shall such waiver constitute a
continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver.
e. Rule 144. The Company shall utilize its reasonable best efforts to
take such action as may be required of it so that sale of Shares by
the Holder may be effected through Rule 144 of the Act or any
successor rule under the Act.
f. Notices. Unless applicable law requires a different method of giving
notice, any and all notices, demands or other communications required
or desired to be given hereunder by any party shall be in writing.
Assuming that the contents of a notice meet the requirements of the
specific Section of this Agreement which mandates the giving of that
notice, a notice shall be validly given or made to another party if
served either personally or if deposited in the United States mail,
certified or registered, postage prepaid, or if transmitted by
telegraph, telecopy or other electronic written transmission device or
if sent by overnight courier service, and if addressed to the
applicable party as set forth below. If such notice, demand or other
communication is served personally, service shall be conclusively
deemed given at the time of such personal service. If such notice,
demand or other communication is given by mail, service shall be
conclusively deemed given seventy-two (72) hours after the deposit
thereof in the United States mail. If such notice, demand or other
communication is given by overnight courier, or electronic
transmission, service shall be conclusively given at the time of
confirmation of delivery. The addresses for the parties are as
follows:
-15-
(i) If to the Holder:
Xxx Xxxxxxx
Xxxxxxx Xxxxxxxx Inc.,
0000 Xxxxxxx, 0xx Xxxxx
Xxxxxxxx, Xxxxxx, Xxxxxx H3B-4S9
Telecopier No.: (000) 000-0000
(ii) If to the Company:
American Film Technologies, Inc.
Attention: Xxxxxx X. Xxxxxxx
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Jeffer, Mangels, Xxxxxx & Marmaro LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
Any party hereto may change its address for the purpose of
receiving notices, demands and other communications as herein provided, by a
written notice given in the aforesaid manner to the other parties hereto.
g. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to
conflicts of law principles.
h. Jurisdiction. The parties hereto agree to submit to the exclusive
jurisdiction of the Superior Court, Los Angeles County any
controversy, claim or dispute arising out of or relating to this
Agreement or the method and manner of performance thereof or the
breach thereof.
i. Cost of Litigation. Should any party hereto institute any action or
proceeding at law or in equity to enforce any provision of this
Agreement, including an action for declaratory relief, or for damages
by reason of an alleged breach of any provision of this Agreement, or
otherwise in connection with this Agreement, or any provision hereof,
the Court shall apportion the costs and fees thereof (including all
attorneys' fees between the parties based on its determination of the
merits of their respective positions in the proceeding prevailing
party shall be entitled to recover from the losing party or parties
reasonable attorneys' fees and costs for services rendered to
-16-
the prevailing party in such action or proceeding.
j. Interpretation. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
k. Severability. If any provisions of this Agreement shall under any
circumstances be deemed invalid or inoperative, this Agreement shall
be construed with the invalid or inoperative provision deleted and the
rights and obligations of the parties shall be construed and enforced
accordingly.
l. Neuter and Gender. Whenever in this Agreement the context may require,
the neuter shall be deemed to include the feminine or masculine and
vice versa.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf on the date first above written.
AMERICAN FILM TECHNOLOGIES, INC.
By________________________________
Xxxxxx X. Xxxxxxx,
Chief Executive Officer
AGREED TO AND ACCEPTED
THIS ____ DAY OF October 1996
_________________________________________
Xxx Xxxxxxx
-17-
