EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
among
INTELOGIC TRACE, INC.
FIDELITY CAPITAL & INCOME FUND
and
SALVATORE CURIALE,
Superintendent of Insurance of the
State of New York, as Rehabilitator for
Executive Life Of New York
Dated as of December 8, 1994
TABLE OF CONTENTS
Page
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SECTION 1. Securities Subject to this Agreement .......................... 1
SECTION 2. Registration .................................................. 1
SECTION 3. Liquidated Damages ............................................ 3
SECTION 4. Registration Procedures ....................................... 4
SECTION 5. Registration Expenses ......................................... 7
SECTION 6. Indemnification; Contribution ................................. 8
(a) Indemnification by the Company ............................ 8
(b) Indemnification by Holders of Registrable Securities ...... 8
(c) Conduct of Indemnification Proceedings .................... 9
(d) Contribution .............................................. 10
SECTION 7. Rule 144A ..................................................... 11
SECTION 8. Miscellaneous ................................................. 11
(a) Remedies .................................................. 11
(b) Additional Signatories .................................... 11
(c) Amendments and Waivers .................................... 11
(d) Notices ................................................... 11
(e) Successors and Assigns .................................... 12
(f) Counterparts .............................................. 13
(g) Headings .................................................. 13
(h) Governing Law ............................................. 13
(i) Severability .............................................. 13
(j) Entire Agreement .......................................... 13
i
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of December 8, 1994 among INTELOGIC TRACE, INC., a New York
corporation (the "Company"), FIDELITY CAPITAL & INCOME FUND, a Massachusetts
business trust ("Fidelity"), and SALVATORE CURIALE, Superintendent of Insurance
of the State of New York, as rehabilitator for Executive Life of New York
("Executive Life"). Fidelity and Executive Life will own shares of the Common
Stock, $.01 par value per share, of the Company (the "Common Shares") and shares
of 10% Preferred Stock, $.01 par value, of the Company (the "Preferred Shares").
The parties hereby agree as follows:
SECTION 1. SECURITIES SUBJECT TO THIS AGREEMENT. The term
"Registrable Securities" means the Common Shares and Preferred Shares (including
any shares from time to time received from the Company in exchange therefor or
as a result of dividends, splits or similar actions with respect to Registrable
Securities) to be received by each of Fidelity and Executive Life and by any
other holder of such Common Shares and Preferred Shares who becomes a signatory
to this Agreement as contemplated by Section 8(b) of this Agreement (the
"Holders" or a "Holder," or the "Sellers" or a "Seller") as of the effectiveness
(the "Effective Date") of the restructuring of the Company's 11.99% Subordinated
Debentures that were due July 15, 1996 pursuant to a plan of reorganization
under chapter 11 of title 11 of the United States Code, which has been confirmed
by Final Order entered on November 28, 1994 of the United States Bankruptcy
Court for the Western District of Texas, San Antonio Division, the court having
jurisdiction over the Company's chapter 11 case. For convenience, unless the
context otherwise indicates, the various agreements made herein with respect to
Fidelity and Executive Life shall be deemed to be made on behalf of the
respective Holders or Sellers, and references herein to "Signatories" shall
include Fidelity, Executive Life and any other holder of Registrable Securities
as of the Effective Date that becomes a party to this Agreement.
SECTION 2. REGISTRATION.
(a) The Company shall (i) cause to be filed with the Securities
and Exchange Commission (the "Commission") on or before February 6, 1994, a
shelf Registration Statement on Form S-1 (the "Shelf Registration Statement")
covering the Registrable Securities in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Act"), relating to the offer and sale
of Registrable Securities by the Holders from time to time in accordance with
the methods of distribution elected by the Sellers and set forth in the Shelf
Registration Statement, (ii) use its best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission at the
earliest possible time, but in no event later than March 8, 1994, and (iii) in
connection with the foregoing, file (A) all pre-effective amendments to the
Shelf Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, and (B) if applicable, a
post-effective amendment to the Shelf Registration Statement pursuant to Rule
430A under the Act.
(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
forming part thereof to be usable by the Holders for a period of three years or
such shorter period that will terminate when all the Registrable Securities
covered by the Shelf Registration Statement have been sold pursuant to such
Registration Statement (in any such case, such period being called the "Shelf
Registration Period").
(c) In the event that, following the Shelf Registration Period,
the Company shall receive from any Holder or Holders of Registrable Securities
comprising not less than 5% of the issued and outstanding Common Shares or
Preferred Shares, a written request that the Company effect the registration of
Registrable Securities, the Company will (i) promptly, and in any event within
15 days, give written notice thereof to each other Holder, (ii) cause to be
filed with the Commission as promptly as possible (and in any event within 60
days after the Company receives such request) a Registration Statement on Form
S-1 (or on an alternative form if such alternative form is then authorized for
the sale to the public of the Registrable Securities and such form would permit
registration of the Registrable Securities for sale by or on behalf of the
Holders) (each a "Registration Statement", which term shall include the Shelf
Registration Statement) covering the Registrable Securities as are specified in
such request, together with all or such portion of the Registrable Securities of
any Holder or Holders joining in such request as are specified in a written
request received by the Company within 15 days after receipt of the written
notice by the Company pursuant to clause (i), relating to the offer or sale of
Registrable Securities by the Holders in accordance with the methods of
distribution elected by the Sellers and set forth in the Registration Statement,
(iii) use
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its best efforts to cause such Registration Statement to be declared
effective by the Commission at the earliest possible time, and (iv) in
connection with the foregoing, file (A) all pre-effective amendments to such
Registration Statement as may be necessary in order to cause such Registration
Statement to become effective, and (B) if applicable, a post-effective amendment
to such Registration Statement pursuant to Rule 430A under the Act. The Company
shall not be required to effect more than two registrations pursuant to this
Section 2(c). The Company may postpone for a reasonable period of time (not to
exceed 30 days) the filing of any registration statement otherwise required to
be prepared and filed by it pursuant to this Section 2(c) if, at the time it
receives a request for registration, the Board of Directors of the Company shall
determine in good faith that such offering will interfere materially with a
pending or contemplated financing, merger, sale of assets, recapitalization or
other similar corporate action of the Company and the Company shall have
furnished to the Holders seeking such registration a certificate signed by the
President of the Company to that effect, accompanied by a certified copy of the
relevant board resolutions.
(d) SELECTION OF COUNSEL. The Holders of the Registrable
Securities to be included in each Registration Statement shall select one
counsel reasonably acceptable to the Company to represent their interests in
connection with such offering. The reasonable expenses of such counsel to the
Holders shall be borne by the Company.
(e) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION
WITH THE SHELF REGISTRATION STATEMENT. No Holder of Registrable Securities may
include any of its Registrable Securities in any Registration Statement pursuant
to this Agreement unless and until such Holder furnishes to the Company in
writing, within 10 business days after receipt of a request therefor, such
information as the Company may reasonably request for use in connection with the
Registration Statement or prospectus or preliminary prospectus included therein.
No Holder of Registrable Securities shall be entitled to liquidated damages
pursuant to Section 3 hereof unless and until such Holder shall have provided
all such reasonably requested information.
SECTION 3. LIQUIDATED DAMAGES. If (i) the Shelf Registration
Statement is not filed with the Commission on or prior to the date specified for
such filing in this Agreement, (ii) the Shelf Registration Statement has not
been declared effective by the Commission on or prior to the date specified for
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such effectiveness in this Agreement, or (iii) the Shelf Registration Statement
is filed and declared effective but, during the period the Company is required
to maintain its effectiveness, shall thereafter cease to be effective or fail to
be usable for its intended purpose (each such event referred to in clauses (i)
through (iii), a "Registration Default"), the Company agrees to pay liquidated
damages to the Holders of Registrable Securities in an amount equal to $5,000
per week, apportioned ratably among such Holders based on the number of Common
Shares held by each such Holder, for each week or portion thereof that the
Registration Default continues. All accrued liquidated damages shall be paid to
the Holders of Registrable Securities by the Company by wire transfer of, or
check of, immediately available funds, on the first business day of each month
following a Registration Default. Following the cure of all Registration
Defaults relating to any particular Registrable Securities, the accrual of
liquidated damages with respect to such Registrable Securities will cease.
SECTION 4. REGISTRATION PROCEDURES. In connection
with any Registration Statement to be filed pursuant to Section 2
of this Agreement, the Company will as expeditiously as possible:
(a) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective (i) in the case of the Shelf
Registration Statement, for the Shelf Registration Period, and (ii) in the case
of each other Registration Statement, for at least 180 days (or such shorter
period as shall terminate when all Registrable Securities covered by such
Registration Statement have been sold), and comply with the provisions of the
Act and the Securities Exchange Act of 1934, as amended (the "Exchange Act")
applicable to it with respect to the disposition of all Registrable Securities
of the Company covered by such Registration Statement during such period;
(b) furnish to each Signatory, without charge, at least one
signed copy of the Registration Statement and any post-effective amendment
thereto, 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 any preliminary prospectus) and any amendments or supplements
thereto, and any documents incorporated by reference therein, as such Signatory
may reasonably request as soon as such documents become available to the Company
in order to facilitate the disposition of the Registrable Securities being sold
by each
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Seller (it being understood that the Company consents to the use of the
prospectus and any amendment or supplement thereto by each Seller of such
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by the prospectus or any amendment or supplement
thereto);
(c) on or prior to the effective date of the Registration
Statement, or thereafter if necessary, use its best efforts to register or
qualify the Registrable Securities under such other securities or blue sky laws
of such jurisdictions as each Signatory reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable to enable
each Seller to consummate the disposition in such jurisdictions of such
Registrable Securities owned by such Seller; PROVIDED, HOWEVER, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph, or (ii) subject itself to general taxation in any such jurisdiction;
(d) use its best efforts to cause the Registrable Securities
covered by the Registration Statement 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 enable the Sellers to consummate the
disposition of such Registrable Securities;
(e) notify each Signatory at any time while the Registration
Statement is required to be effective under paragraph (a) above of the happening
of any event which results in the Prospectus containing an untrue statement of a
material fact or omitting to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and, as
promptly as practicable, the Company will prepare a supplement or amendment to
such Prospectus so that, as thereafter delivered to the purchasers of such
Registrable 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;
(f) enter into customary agreements and make such representations
and warranties to the Sellers of Registrable Securities as in form, substance
and scope are customarily made by issuers to selling securityholders and take
such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities;
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(g) in connection with any underwritten offering, enter into an
underwriting agreement with the underwriter of such offering in the form
customary for such underwriter for similar offerings, including such
representations and warranties by the Company, provisions regarding the delivery
of opinions of counsel for the Company and accountants' letters, provisions
regarding indemnification and contribution, and such other terms and conditions
as are at the time customarily contained in such underwriter's underwriting
agreement for similar offerings (and, at the request of any Holder of
Registrable Securities that are to be distributed by such underwriter(s), any or
all (as requested by such Holder) of the representations and warranties by, and
the other agreements on the part of, the Company to and for the benefit of such
underwriter(s) shall also be made to and for the benefit of such Holder);
(h) make available for inspection during regular business hours
by Fidelity and Executive Life and any attorney, accountant or other agent
retained by them and their attorneys and agents (collectively, the
"Inspectors"), all financial and other records, corporate documents, books and
records, questionnaires, agreements, properties of the Company and other
information (collectively, the "Records") as shall be reasonably requested to
enable them to exercise "due diligence," and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such Inspector in connection with the Registration Statement;
(i) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, earnings statements which need not
be audited, covering a period of twelve months beginning after the effective
date of the Registration Statement, which earnings statements shall satisfy the
provisions of Section 11(a) of the Act;
(j) notify each Signatory of any stop order or other
suspension of effectiveness of the Registration Statement;
(k) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(l) use its best efforts to cause the Registrable Securities to
be listed on the New York Stock Exchange or any other national securities
exchange or automated quotation system
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on which a listing for Common Shares or Preferred Shares is maintained; and
(m) cooperate with the Sellers of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
securities to be sold under the Registration Statement (which certificates shall
be in DTC- eligible form) and enable such securities to be in such denominations
and registered in such names as such Sellers may request.
The Company may require each Seller of Registrable Securities as
to which any registration is being effected to furnish to the Company
information regarding the distribution of such securities and such other
information relating to the Seller and its ownership of Registrable Securities
as the Company may from time to time reasonably request for inclusion in the
Registration Statement
Each Holder of Registrable Securities agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 4(e) hereof, such holder will forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 4(e) hereof
and, if so directed by the Company, such Holder will deliver to the Company (at
the expense of the Company), all copies, other than permanent file copies then
in such Holder's possession of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice.
SECTION 5. REGISTRATION EXPENSES. All expenses incident to the
Company's performance of or compliance with Section 2 of this Agreement
including, without limitation, all registration and filing fees, and expenses of
compliance with state securities or blue sky laws (including fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), messenger and delivery expenses, internal expenses
(including, without limitation, all salaries and expenses of the Company's
officers and employees performing legal or accounting duties), printing costs,
fees and expenses of counsel for the Company and its independent certified
public accountants (including the expenses of any special audit required by or
incident to such performance), liability insurance for claims under the Act and
the Exchange Act (it being understood that the Company has no
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obligation to obtain such insurance), fees and expenses of counsel for the
Sellers under Section 2(d) above and the fees and expenses of any special
experts retained by the Company in connection with such registration (all such
expenses being herein called "Registration Expenses") shall be borne by the
Company; PROVIDED, HOWEVER, that in no event shall Registration Expenses include
any discounts, commissions or underwriting fees attributable to the sale of the
Registrable Securities.
SECTION 6. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify, to the full extent permitted by law, each participating Holder of
Registrable Securities, its officers, directors, partners, employees and agents
and each person or entity that controls such Holder (within the meaning of the
Act), and any investment advisor thereof or agent therefor (collectively, the
"Indemnified Holders") against all losses, claims, damages, liabilities and
expenses (including reasonable out-of-pocket costs of investigation and
reasonable legal expenses) arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in any Registration Statement or
prospectus (or any amendment 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, in light
of the circumstances under which they are made) not misleading; PROVIDED,
HOWEVER, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or expense arises out of or is
based upon an untrue statement or alleged untrue statement, or omission or
alleged omission made in the Registration Statement or prospectus, or such
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by any of the Holders specifically for use
in the preparation thereof. This indemnity is in addition to any liability which
the Company may otherwise have. The Company will also indemnify any selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution and their officers and directors and each
person who controls such persons or entities (within the meaning of the Act) to
the same extent as provided above with respect to the indemnification of the
Holders of Registrable Securities.
(b) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. In
connection with any Registration Statement in which a Holder of Registrable
Securities is participating, each
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such Holder will furnish to the Company, in writing, such information and
affidavits with respect to such Holder as the Company reasonably requests for
use in connection with such Registration Statement or any prospectus included
therein and agrees to indemnify, to the extent permitted by law, the Company,
its directors, officers, employees and agents and each person or entity that
controls the Company (within the meaning of the Act), and any investment advisor
thereof or agent therefor against any losses, claims, damages, liabilities and
expenses (including reasonable out-of-pocket costs of investigation and
reasonable legal expenses) arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in the Registration Statement or
prospectus or any omission or alleged omission to state therein a material fact
required to be stated 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, to the extent, but only to the extent, that such untrue
statement or omission is contained in or should have been contained in any
information or affidavit with respect to such Holder so furnished in writing by
such Holder expressly for inclusion in such Registration Statement; PROVIDED,
HOWEVER, that the obligation of such Holder under this Section 6 shall in no
event exceed the proceeds received by such Holder upon the sale of the
Registrable Securities in the offering covered by such Registration Statement.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person or entity
entitled to indemnification hereunder agrees to give prompt written notice to
the indemnifying party after the receipt by such person or entity of any written
notice of the commencement of any action, suit or proceeding against such person
or entity or investigation thereof for which such person or entity will claim
indemnification or contribution pursuant to this Agreement and, unless in the
reasonable judgment of such indemnified party a conflict of interest exists
between such indemnified party and the indemnifying party with respect to such
claim, permit the indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to such indemnified party. If the indemnifying
party is not entitled to, or elects not to, assume the defense of a claim, it
will not be obligated to pay the fees and expenses of more than one lead counsel
with respect to such claim (plus local counsel fees, if required), unless in the
reasonable judgment of counsel to such indemnified party a conflict of interest
exists between such indemnified party and any other of such indemnified parties
with respect to such claim, in which event the indemnifying party shall be
obligated to pay the fees and expenses of such
9
additional counsel or counsels. The indemnifying party will not be subject to
any liability for any settlement made without its consent, which consent shall
not be unreasonably withheld.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 6 from the indemnifying party is unavailable to an indemnified party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein by reason other than that set forth in the proviso at the
end of the first sentence of Section 6(a) hereof, then the indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages, liabilities or expenses in such proportion as is appropriate to reflect
the relative fault of the indemnifying party and indemnified parties in
connection with the actions or inactions which resulted in such losses, claims,
damages, liabilities or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
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
limitations set forth in Section 6(c), any legal or other fees or expenses
reasonably incurred by such party in connection with any investigation or
proceeding.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this paragraph were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
If indemnification is available under this Section 6, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in Sections 6(a) and (b) without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 6.
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SECTION 7. RULE 144A.
The Company hereby agrees with each Signatory, for so long as any
Registrable Securities remain outstanding, to make available to any Signatory or
beneficial owner of Registrable Securities in connection with any sale thereof
and any prospective purchaser of such Registrable Securities from such Signatory
or beneficial owner, the information required by Rule 144(d)(4) under the Act in
order to permit resales of such Registrable Securities pursuant to Rule 144A.
SECTION 8. MISCELLANEOUS.
(a) REMEDIES. Each party hereto, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Each party
agrees that monetary damages may not be adequate compensation for any loss
incurred by reason of a breach of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
(b) ADDITIONAL SIGNATORIES. If the Company determines that any
persons, other than the original signatories hereto, who are to receive Common
Shares or Preferred Shares as of the Effective Date may be deemed to be
underwriters within the meaning of the Act with respect to such securities, upon
the written consent of Fidelity and Executive Life such persons may become
additional Signatories to the Agreement and their Shares shall be deemed to be
Registrable Securities.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers and consents to or
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of Holders of a majority of the Registrable
Securities.
(d) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made by telecopy (followed by registered
first-class mail or overnight courier delivery of a hard-copy), by overnight
courier or by hand- delivery:
(i) if to the Company, at:
Turtle Creek Tower I
P.O. Box 400044
11
San Antonio, Texas 78229-8415
Attention: Philip Freeman, Esq.
Telecopy: (210) 593-2201
with a copy to:
Cox & Smith Incorporated
1120 E. Pecan Street
Suite 1800
San Antonio, Texas 78205
Attention: James B. Smith, Jr., Esq.
Telecopy: (210) 226-8395
(ii) if to Fidelity, at:
82 Devonshire Street
Boston, Massachusetts 02109
Attention: Judy K. Mencher, Esq.
Telecopy: (617) 476-7774
with a copy to:
Weil, Gotshal & Manges
767 Fifth Avenue
New York, New York 10153
Attention: Bruce R. Zirinsky, Esq.
Telecopy: (212) 310-8007; and
(iii) if to Executive Life, at:
123 William Street
New York, New York 10038
Attention: Kevin Foley
Telecopy:
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including without limitation and without the need for an express
assignment, subsequent Holders of the Registrable Securities; PROVIDED, HOWEVER,
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Registrable Securities from such Holder.
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(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(i) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
INTELOGIC TRACE, INC.
By: PHILIP D. FREEMAN
Name: Philip D. Freeman
Title: Secretary
FIDELITY CAPITAL & INCOME FUND
By: JOHN H. COSTELLO
Name: John H. Costello
Title: Assistant Treasurer
SALVATORE CURIALE,
Superintendent of Insurance
of the State of New York, as
Rehabilitator for Executive
Life of New York
By: RICHARD J. LINDQUIST
Name: Richard J. Lindquist
Title: Managing Director,
First Boston Investment
Management Corporation