Exhibit 4.24
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
January 4, 2000, and is being made and entered into by and among AVERY
COMMUNICATIONS, INC., a Delaware corporation ("ACI"), and Jay Geier, an
individual residing in the State of California ("Holder"), with reference to the
following RECITALS:
R E C I T A L S:
---------------
A. For the convenience of the parties, certain capitalized words and
phrases used herein are defined or referred to in 31.
B. To set forth the relative rights of the Holder and to provide the
Holder with greater liquidity in the future with respect to the Registrable
Stock, the Holder wishes to have certain rights and ACI wishes to grant such
rights to the Holder.
NOW, THEREFORE, in consideration of the recitals and of the respective
covenants, representations, warranties and agreements herein contained, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE 1
REGISTRATION RIGHTS
Section 1.1 Incidental Registration.
1.1.1 Piggyback Rights of the Holder. If at any time or
times from and after the date hereof until the Expiration Date, ACI intends
to file prior to the Expiration Date a Registration Statement for the
registration of Common Stock with the Commission on any form permitting the
registration of Registrable Stock, then ACI shall notify the Holder at
least 30 days prior to each such filing of ACI's intention to file such a
Registration Statement. Such notice shall state the amount and type of
securities proposed to be registered thereby, the underwriters involved, if
any, and whether such underwriting is to be distributed on a firm
commitment or best efforts basis. Upon the written request of the Holder (a
"Holder Request") given within 20 days after receipt of any such notice
stating the number of shares of Registrable Stock to be disposed of by the
Holder and the intended method of disposition, ACI will use its best
efforts to cause the aggregate of the Registrable Stock designated in the
Holder Requests to be included in such registration so as to permit the
disposition (in accordance with the methods specified in the Holder
Request(s)) by the Holder of the Registrable Stock so registered, subject
to the reductions specified in Sections 1.1.2 and 1.1.3, as applicable. The
Holder shall be entitled, subject to such reductions, to participate in an
unlimited number of such registrations.
1.1.2 Reductions of Registrable Stock To Be Included. If
the registration proposed by ACI involves an underwritten offering of the
Common Stock, whether or not for sale for the account of ACI, to be
distributed (on a best efforts or firm commitment basis) by or through one
or more underwriters, and the managing underwriter of such underwritten
offering shall advise ACI in writing that, in its opinion, the registration
of all or a specified portion of Registrable Stock concurrently with the
Common Stock will adversely affect the distribution of such Common Stock by
such underwriters, then ACI may require, by written notices to the Holder,
that the distribution of all or a specified portion of the Registrable
Stock be excluded from such registration in accordance with Section 1.6.
1.1.3 Withdrawals. ACI may in its discretion withdraw any
Registration Statement filed pursuant to this Section 1.1 subsequent to its
filing and prior to its effective date without liability to the Holder,
other than to pay expenses pursuant to Section 1.4.
Section 1.2 Indemnity.
1.2.1 By ACI. ACI will, and hereby does, indemnify and hold
harmless, to the extent permitted by law, each Holder, its partners,
representatives, shareholders, officers and directors, if any, and each
Person, if any, who controls the Holder within the meaning of Section 1.5
of the Securities Act, against all losses, claims, damages, liabilities (or
proceedings in respect thereof) and expenses (under the Securities Act or
common law or otherwise), joint or several, resulting from any untrue or
misleading statement or alleged untrue or misleading statement of a
material fact contained in any Registration Statement or any omission or
alleged omission of a material fact required to be stated in the
Registration Statement (as declared effective) or prospectus filed under
Rule 424(b) under the Securities Act (and as amended or supplemented if ACI
shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or necessary to make the statements therein not
misleading, except insofar as:
(a) such losses, claims, damages, liabilities (or
proceedings in respect thereof) or expenses are caused by any untrue
statement or alleged untrue statement made in reliance on or in
conformity with any information furnished in writing to ACI by the
Holder expressly for use therein; or
(b) in the case of any registration that is not an
underwritten offering, such losses, claims, damages, liabilities (or
proceedings in respect thereof) or expenses result from the Holder
selling Registrable Stock to a Person asserting the existence of an
untrue or misleading statement or alleged untrue statement or omission
or alleged omission in a preliminary prospectus and to whom there was
not given or sent, at or prior to the written confirmation of the sale
of the Registrable Stock, a copy of the final prospectus or the final
prospectus as then amended or supplemented but only if such statement
or omission was corrected in such final prospectus or amended or
supplemented final prospectus prior to such written
-2-
confirmation and the Holder was given notice, prior to such written
confirmation, of the availability of, or that ACI was preparing, such
final prospectus or amended or supplemented final prospectus.
If the offering pursuant to any Registration Statement provided for under
this Agreement is made through underwriters, no action or failure to act on
the part of such underwriters (whether or not such underwriter is an
Affiliate of any Holder) shall affect ACI's obligations to indemnify the
Holder or any other Person pursuant to the preceding sentence. It is agreed
that the indemnity agreement contained in this Section 1.2(a) shall not
apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of
ACI (which consent has not been unreasonably withheld).
1.2.2 By the Holder. In connection with any Registration Statement in
which the Holder is participating, each such Holder will indemnify and hold
harmless, to the extent permitted by law, ACI, its officers, directors,
partners, legal counsel, and accountants, and each underwriter, if any, of
ACI Securities covered by such Registration Statement, and each Person, if
any, who controls ACI or any such underwriter within the meaning of Section
15 of the Securities Act, and each of the Other Stockholders, and each of
their respective officers, directors, and partners, and each Person
controlling any of the Other Stockholders against any losses, claims,
damages, liabilities (or proceedings in respect thereof) and expenses
(under the Securities Act or common law or otherwise) resulting from any
untrue or misleading statement or alleged untrue or misleading statement of
a material fact or any omission or alleged omission of a material fact
required to be stated in the Registration Statement (as declared effective)
or prospectus filed under Rule 424(b) under the Securities Act or
preliminary prospectus or any amendment thereof or supplement thereto, or
necessary to make the statements therein not misleading, but only to the
extent that:
(a) such untrue statement is made in reliance on or in
conformity with any information furnished in writing by the Holder
expressly for use therein; or
(b) in the case of any registration that is not an underwritten
offering, such losses, claims, damages, liabilities (or proceedings in
respect thereof) or expenses resulting from the Holder selling
Registrable Stock to a Person asserting the existence of an untrue
statement or alleged untrue statement or omission or alleged omission
in a preliminary prospectus and to whom there was not given or sent,
at or prior to the written confirmation of the sale of the Registrable
Stock, a copy of the final prospectus or of the final prospectus as
then amended or supplemented but only if such statement or omission
was corrected in such final prospectus or amended or supplemented
final prospectus prior to such written confirmation and the Holder was
given notice, prior to such written confirmation, of the availability
of, or that ACI was preparing, such final prospectus or amended or
supplemented final prospectus;
-3-
provided, however, that the obligations of the Holder hereunder shall not
apply to amounts paid in settlement of any such claims, losses, damages, or
liabilities (or actions in respect thereof) if such settlement is effected
without the consent of the Holder (which consent has not been unreasonably
withheld); and, provided further, that the obligations of the Holder under
this Section 1.3.(b) shall be limited to an amount equal to the net
proceeds to the Holder of the Registrable Stock sold pursuant to such
Registration Statement.
1.2.3 Notice of Claims. Any Person entitled to indemnification
under the provisions of Sections 1.2.1 or 1.2.2 shall (i) give prompt
notice to the indemnifying party of any claim with respect to which it
seeks indemnification, and (ii) unless in the opinion of counsel reasonably
satisfactory to the indemnifying party a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim,
permit such indemnifying party to assume the defense of such claim, with
counsel reasonably satisfactory to the indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the
indemnifying party); and if such defense is so assumed, such indemnifying
party shall not enter into any settlement without the consent of the
indemnified party if such settlement attributes liability to the
indemnified party and such indemnifying party shall not be subject to any
liability for any settlement made without its consent (which shall not be
unreasonably withheld); and any underwriting agreement entered into with
respect to any Registration Statement provided for under this Agreement
shall so provide. In the event an indemnifying party shall not be entitled,
or elects not, to assume the defense of a claim, such indemnifying party
shall not be obligated to pay the fees and expenses of more than one
counsel or firm of counsel for all parties indemnified by such indemnifying
party in respect of such claim. Such indemnity shall remain in full force
and effect regardless of any investigation made by or on behalf of a
participating Holder, its officers, directors or any Person, if any, who
controls the Holder as aforesaid, and shall survive the transfer of such
securities by the Holder.
1.2.4 Contribution. If for any reason the foregoing indemnity is
unavailable, then the indemnifying party shall contribute to the amount
paid or payable by the indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party on the one hand and the indemnified party on the other, or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law or provides a lesser sum to the indemnified party than the amount
hereinafter calculated, in such proportion as is appropriate to reflect not
only the relative benefits received by the indemnifying party on the one
hand and the indemnified party on the other but also the relative fault of
the indemnifying party and the indemnified party as well as any other
relevant equitable considerations. Notwithstanding the foregoing, no Holder
shall be required to contribute any amount in excess of the amount the
Holder would have been required to pay to an indemnified party if the
indemnity under Sections 1.2.1 or 1.2.2, as applicable, was available. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent
-4-
misrepresentation. The relative fault of the indemnifying party and of the
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
1.2.5 Prompt Payment. An indemnifying party shall make payments
of all amounts required to be made pursuant to the foregoing provisions of
this Section 1.2 to or for the account of the indemnified party from time
to time promptly upon receipt of bills or invoices relating thereto or when
otherwise due and payable.
1.2.6 Underwriting Agreement to Control. Notwithstanding the
foregoing, to the extent that the provisions on indemnification and
contribution contained in the underwriting agreement entered into in
connection with the underwritten public offering are in conflict with the
foregoing provisions, the provisions in the underwriting agreement shall
control.
Section 1.3 Registration Procedures.
1.3.1 ACI's Actions. Whenever the Holder has properly requested that
any Registrable Stock be registered pursuant to Sections 1.1 or 1.2, ACI
will use its best efforts to effect the registration in furtherance of the
sale of the Registrable Stock in accordance with the intended method of
disposition thereof, and in connection with any such request ACI will:
(a) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective for such period (not to exceed 90 days) as will
terminate when all Registrable Stock covered by such Registration
Statement has been sold in compliance with the provisions of the
Securities Act with respect to the disposition of all securities
covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
(b) furnish to each seller of Registrable Stock such number of
copies of such Registration Statement, each amendment and supplement
thereto (in each case including all exhibits thereto), the prospectus
included in such Registration Statement (including each preliminary
prospectus), each amendment and supplement thereto and such other
documents as such seller may reasonably request in order to facilitate
the disposition of the Registrable Stock owned by such seller;
-5-
(c) use its best efforts to register or qualify the Registrable
Stock under such other applicable securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all
other acts and things which may be reasonably necessary or advisable
to enable such seller to consummate the disposition in such
jurisdictions of the Registrable Stock owned by such seller; provided,
however, that ACI will not be required to (A) qualify generally to do
business or subject itself to taxation in any jurisdiction where it
would not otherwise be required to qualify or be subject but for this
subparagraph (iii), or (B) consent to general service of process in
any such jurisdiction;
(d) use its best efforts to cause the Registrable Stock covered
by such Registration Statement to be registered with or approved by
such other Governmental Authorities as may be reasonably necessary by
virtue of the business and operations of ACI to enable the seller or
sellers thereof to consummate the disposition of the Registrable
Stock;
(e) (i) notify each seller of the Registrable Stock, at any time
when a prospectus relating thereto is required to be delivered under
the Securities Act, 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 to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and (ii prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of
the Registrable Stock, 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) (i) use commercially reasonable efforts to cause all
Registrable Stock to be listed on each securities exchange or stock
market on which the Common Stock is then listed or quoted, and (ii
unless the same already exists, provide a transfer agent, registrar
and CUSIP number for all Registrable Stock not later than the
effective date of the Registration Statement;
(g) make available for inspection at the offices of ACI during
regular business hours by any seller of Registrable Stock, any
underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent
retained by any such seller or underwriter, such financial and other
records, pertinent corporate documents and properties of ACI as shall
be reasonably requested by them and be necessary to enable them to
exercise its due diligence responsibility; and
(h) use its best efforts otherwise to comply with all applicable
rules and regulations of the Commission.
-6-
1.3.2 Holder Information. In connection with any registration
effected pursuant to 11 that the Holder has requested that their securities
be registered pursuant to such Registration Statement, the Holder shall
provide to ACI such information as may be reasonably requested by ACI or as
may be required for inclusion in such Registration Statement pursuant to
the Securities Act and the rules and regulations thereunder.
1.3.3 Suspension of Use by Holder. The Holder agrees by
acquisition of the Registrable Stock and the registration rights thereunder
that, upon receipt of any notice from ACI of the happening of any event of
the kind described in paragraph (e) of Section 1.3.1, the Holder will
forthwith discontinue disposition of Registrable Stock pursuant to the
Registration Statement covering the Registrable Stock until such Holder's
receipt of the copies of the supplemented or amended prospectus
contemplated by such paragraph (e) of Section 1.3.1, and, if so directed by
ACI, the Holder will deliver to ACI (at ACI's expense) all copies, other
than permanent file copies then in such Holder's possession, of the
prospectus covering the Registrable Stock current at the time of receipt of
such notice. In the event ACI shall give any such notice, the period
mentioned in paragraph (a) of Section 1.3.1 shall be extended by the number
of days during the period from and including the date of the giving of such
notice pursuant to paragraph (e) of Section 1.3.1 to and including the date
when each seller of Registrable Stock covered by such Registration
Statement shall have received the copies of the supplemented or amended
prospectus contemplated by such paragraph (e) of Section 1.3.1.
Section 1.4 Expenses. All Registration Expenses incurred in effecting any
registration, qualifications or compliance pursuant to this Agreement shall be
borne by ACI. All Selling Expenses relating to Registrable Stock so registered
shall be borne by the Holder, according to the quantity of Registrable Stock
included in such registration along with any other expenses in connection with
the registration required to be borne by the Holder of the Registrable Stock.
Section 1.5 Limitation on Registration. Notwithstanding the foregoing,
under no circumstances will ACI be obligated to cause any registration effected
pursuant to this Agreement to remain effective after the Expiration Date or to
include any Registrable Stock in a Registration Statement which becomes
effective after the Expiration Date.
Section 1.6 Allocation of Registration Opportunities. In any circumstance
in which the Registrable Stock and other shares of Common Stock (including
shares of Common Stock issued or issuable upon conversion of shares of any
currently unissued series of preferred stock of ACI) with registration rights
(the "Other Shares") requested to be included in a registration on behalf of the
Holder or other selling stockholders ("Other Stockholders") cannot be so
included as a result of limitations of the aggregate number of shares of
Registrable Stock and Other Shares that may be so included, other than as
provided in Section 1.1.2, the number of shares of Registrable Stock and Other
Shares that may be so included shall be allocated among the Holder and Other
Stockholders requesting inclusion of shares pro rata on the basis of the number
of shares of Registrable Stock and Other Shares that would be held by the Holder
and Other Stockholders, assuming conversion;
-7-
provided, however, that such allocation shall not operate to reduce the
aggregate number of shares of Registrable Stock and Other Shares to be included
in such registration. If any Holder or any Other Stockholder does not request
inclusion of the maximum number of shares of Registrable Stock and Other Shares
allocated to such Person pursuant to the above-described procedure, the
remaining portion of any such Person's allocation shall be reallocated among the
Holder and Other Stockholders whose allocations did not satisfy their requests
pro rata on the basis of the number of shares of Registrable Stock and Other
Shares which would be held by the Holder and Other Stockholders, assuming
conversion, and this procedure shall be repeated until all of the shares of
Registrable Stock and Other Shares which may be included in the registration on
behalf of the Holder and Other Stockholders have been so allocated.
Section 1.7 Delay of Registration. No Holder shall have any right to take
any action to restrain, enjoin, or otherwise delay any registration as the
result of any controversy that might arise with respect to the interpretation or
implementation of this Article 1.
ARTICLE 2
UNDERWRITTEN OFFERINGS
Section 2.1 Underwriting Arrangements. If ACI or holders of securities
initially requesting or demanding such registration have determined to enter
into an underwriting agreement in connection therewith, all shares constituting
Registrable Stock to be included in such registration shall be subject to such
underwriting agreement and no Person may participate in such registration unless
such Person agrees to sell such Person's securities on the basis provided in the
underwriting arrangements approved by such Persons so determining to enter
therein and completes and executes all questionnaires, indemnities, underwriting
agreements and other reasonable documents which must be executed under the terms
of such underwriting arrangements.
If requested by the underwriters for any underwritten offering of
Registrable Stock, ACI will enter into an underwriting agreement that shall
contain such representations and warranties by ACI and such other terms and
provisions as are customarily contained in underwriting agreements with respect
to secondary distributions.
Section 2.2 Selection of Underwriters. If ACI at any time proposes to
register any ACI Securities for sale for its own account and such securities are
to be distributed by or through one or more underwriters, the selection of the
underwriter(s), including, without limitation, the managing underwriter(s),
shall be made solely by ACI.
Section 2.3 Holdback Agreements. Notwithstanding any other provision of
this Agreement, if any registration pursuant to this Agreement shall be in
connection with an underwritten public offering, each Holder agrees, if so
required by the managing underwriter, not to effect any public sale or
distribution of Registrable Stock (other than as part of such underwritten
public offering)
-8-
within 30 days prior to the effective date of such Registration Statement or 180
days after the effective date of such Registration Statement.
ARTICLE 3
DEFINITIONS AND CONSTRUCTION
Section 3.1 Definition of Certain Terms.
Except as otherwise expressly provided or unless the context otherwise
requires, the terms defined in this 31, whenever used in this Agreement, shall
have the respective meanings assigned to them in this Section for all purposes
of this Agreement, and include the plural as well as the singular.
As used herein, the following terms have the following meanings:
ACI: as defined in the first paragraph of this Agreement.
ACI Securities: securities issued by ACI.
Agreement: this instrument as originally executed, or as it may be from
time to time supplemented or amended by one or more supplements or
amendments hereto entered pursuant to the applicable provisions hereof.
Commission: the United States Securities and Exchange Commission and any
successor federal agency having similar powers.
Common Stock: the Common Stock, par value $0.01 per share, of ACI.
Expiration Date: the earlier of (i) two years from the date hereof, or
(ii) the earliest date on which the Holder may sell shares of Registrable
Stock under Paragraph (k) of Rule 144.
Governmental Authority: the United States of America, any state or other
political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government within any such jurisdiction.
Holder: as defined in the first paragraph of this Agreement, and any
Person who (i) subsequently becomes the owner of record of any Registrable
Stock, and (ii) enters into an amendment or supplement to this Agreement
pursuant to which such subsequent holder.
Holder Request: as defined in Section 1.1.1.
Other Shares: as defined in Section 1.6.
-9-
Other Stockholders: as defined in Section 1.6.
Person: any individual, corporation (including a business trust) joint
stock company, partnership, joint venture, trust, estate, limited liability
company, unincorporated association, unincorporated organization,
Governmental Authority or any other entity.
Register, Registered and Registration: refer to a registration effected by
filing a Registration Statement in compliance with the Securities Act, and
the declaration or ordering by the Commission of the effectiveness of such
Registration Statement.
Registrable Stock: the shares of Common Stock to be issued to the Holder
upon the exercise of that certain warrant granted to Holder pursuant to
that certain Consulting Agreement dated as January 4, 2000, between ACI and
the Holder.
Registration Expenses: all expenses incurred in effecting any registration
pursuant to this Agreement, including, without limitation, all
registration, qualification, and filing fees, printing expenses, escrow
fees, fees and disbursements of counsel for ACI, blue sky fees and
expenses, and expenses of any regular or special audits incident to or
required by any such registration, but shall not include the compensation
of regular employees of ACI, which shall be paid in any event by ACI, and
Selling Expenses, fees and disbursements of counsel for the Holder.
Registration Statement: a registration statement prepared on an
appropriate form promulgated under the Securities Act.
Rule 144: Rule 144 (or any successor provision) under the Securities Act.
Rule 145: Rule 145 (or any successor provision) under the Securities Act.
Securities Act: the Securities Act of 1933, as amended.
Selling Expenses: all underwriting discounts, selling commissions and
stock transfer taxes applicable to the sale of Registrable Stock and fees
and disbursements of counsel for any Holder (other than the fees and
disbursements of counsel included in Registration Expenses).
Section 3.2 Rules of Construction
(a) "This Agreement" means this instrument as originally executed or
as it may be from time to time supplemented or amended by one or more
supplements or amendments hereto entered pursuant to the applicable
provisions hereof;
-10-
(b) "includes" and "including" are not limiting, and, in each case,
shall be construed as if followed by the words "without limitation," "but
not limited to" or words of similar import;
(c) "may not" is prohibitive, and not permissive;
(d) "shall" is mandatory, and not permissive;
(e) "or" is not exclusive [i.e., if a party "may do (a), (b) or (c),"
then the party may do all of, any one of, or any combination of, (a), (b)
or (c)] unless the context expressly provides otherwise;
(f) all references in this instrument to designated Articles,
Sections, Exhibits, and Schedules are to the designated Articles, Sections,
Exhibits, and Schedules of this instrument as originally executed;
(g) all references herein to constitutions, treaties, statutes, laws,
rules, regulations, ordinances, codes or orders include any successor
thereto or replacement thereof, include any amendment, modification or
supplements thereof or thereto from time to time, and, include all rules
and regulations promulgated thereunder or pursuant thereto;
(h) the words "herein," "hereof," "hereto" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision; and
(i) all terms used herein which are defined in the Securities Act or
the rules and regulations promulgated thereunder have the meanings assigned
to them therein unless otherwise defined herein.
ARTICLE 4
GENERAL PROVISIONS
Section 4.1 Severability. If any provision of this Agreement, including
any phrase, sentence, clause, Section or subsection is inoperative or
unenforceable for any reason, such circumstances shall not have the effect of
rendering the provision in question inoperative or unenforceable in any other
case or circumstance, or of rendering any other provision or provisions herein
contained invalid, inoperative, or unenforceable to any extent whatsoever.
Section 4.2 Notices. All notices, requests, demands, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if (a) delivered
personally, (b) mailed by first-class, registered or certified mail,
-11-
return receipt requested, postage prepaid, or (c) sent by next-day or overnight
mail or delivery or (d) sent by telecopy or telegram.
if to ACI, to
Avery Communications, Inc.
190 South LaSalle Street, Suite 1710
Chicago, Illinois 60603
Attention: Patrick J. Haynes, III, Chairman
if to the Holder, to
Jay A. Geier
5234 Michelson Drive
Suite 23D
Irvine, California 92612
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications shall
be deemed to have been received (i) if by personal delivery on the day after
such delivery, (ii if by certified or registered mail, on the seventh business
day after the mailing thereof, (ii if by next-day or overnight mail or delivery,
on the day delivered, (iv if by telecopy or telegram, on the next day following
the day on which such telecopy or telegram was sent, provided that a copy is
also sent by certified or registered mail.
Section 4.3 Headings. The headings contained in this Agreement are for
purposes of convenience only and shall not affect the meaning or interpretation
of this Agreement.
Section 4.4 Entire Agreement. This Agreement constitutes the entire
agreement and supersede all prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof.
Section 4.5 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
Section 4.6 Governing Law. This Agreement shall be governed in all
respects, including as to validity, interpretation and effect, by the internal
laws of the State of Delaware, without giving effect to the conflict of laws
rules thereof.
Section 4.7 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
-12-
Section 4.8 Assignment. This Agreement shall not be assignable or
otherwise transferable by any party hereto without the prior written consent of
the other parties hereto. Notwithstanding the immediately preceding sentence,
the Holder may transfer their respective rights under this Agreement to any
spouse or issue of such Holder, or any trust solely for the benefit of such
Holder, spouse or issue.
Section 4.9 No Third Party Beneficiaries. Nothing in this Agreement shall
confer any rights upon any person or entity other than the parties hereto and
their respective heirs, successors and permitted assigns.
Section 4.10 Amendment; Waivers, Etc. No amendment, modification or
discharge of this Agreement, and no waiver hereunder, shall be valid or binding
unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, discharge or waiver is sought. Any
such waiver shall constitute a waiver only with respect to the specific matter
described in such writing and shall in no way impair the rights of the party
granting such waiver in any other respect or at any other time. Neither the
waiver by any of the parties hereto of a breach of or a default under any of the
provisions of this Agreement, nor the failure by any of the parties, on one or
more occasions, to enforce any of the provisions of this Agreement or to
exercise any right or privilege hereunder, shall be construed as a waiver of any
other breach or default of a similar nature, or as a waiver of any of such
provisions, rights or privileges hereunder. The rights and remedies herein
provided are cumulative and are not exclusive of any rights or remedies that any
party may otherwise have at law or in equity. The rights and remedies of any
party based upon, arising out of or otherwise in respect of any inaccuracy or
breach of any representation, warranty, covenant or agreement or failure to
fulfill any condition shall in no way be limited by the fact that the act,
omission, occurrence or other state of facts upon which any claim of any such
inaccuracy or breach is based may also be the subject matter of any other
representation, warranty, covenant or agreement as to which there is no
inaccuracy or breach.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
AVERY COMMUNICATIONS, INC.
By:
--------------------------------------------
Scot M. McCormick, Vice President
HOLDER
-----------------------------------------------
Jay Geier
-13-