EXHIBIT 4.2
#584302.3
INFINITY, INC.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made effective as
of November __, 2004, by and among Infinity, Inc., a Colorado corporation (the
"Company") and _________________ (the "Investor").
Background
The Company and the Investor have entered into that certain Common Stock
Purchase Agreement dated November __, 2004 (the "Purchase Agreement").
As a material inducement to the Investor's obligations to consummate the
transactions contemplated by the Purchase Agreement, the Company has agreed to
enter into this Agreement with the Investor.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the Investor
and the Company hereby agree as follows:
DEFINITIONS
1.1 Definitions. Unless otherwise defined herein or in the Purchase
Agreement, the following terms shall have the following meanings for purposes of
this Agreement:
(a) "Affiliate" shall mean, with respect to any Person, (i) a
director, officer, general or limited partner, manager, member or stockholder of
such Person, and (ii) any other Person that, directly or indirectly, through one
or more intermediaries, Controls, or is Controlled by, or is under common
Control with, such Person.
(b) "Board of Directors" shall mean the Board of Directors of the
Company.
(c) "Commission" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
(d) "Common Stock" shall mean the common stock of the Company.
(e) "Control" shall mean, with respect to any Person, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and all rules and regulations promulgated thereunder.
(g) "Form S-3" means such form under the Securities Act as is in
effect on the date hereof or any successor registration form under the
Securities Act subsequently adopted by the Commission that permits inclusion or
incorporation of substantial information by reference to other documents filed
by the Company with the Commission.
(h) "Holder" shall mean holders of Registrable Securities that have
registration rights pursuant to this Agreement.
(i) "Person" shall mean any individual, partnership, limited
partnership, limited liability partnership, corporation, limited liability
company, association, trust, joint venture, unincorporated organization, and any
governmental authority or other legal or business entity of any kind.
(j) "Prospectus" shall mean the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A promulgated under
the Securities Act), as amended or supplemented by any prospectus supplement
(including, without limitation, any prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by
such Shelf Registration Statement), and all other amendments and supplements to
the Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
(k) "Register," "registered" and "registration" shall refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of
effectiveness of such registration statement by the Commission.
(l) "Registrable Securities" shall mean shares of Common Stock
acquired by the Investor pursuant to the Purchase Agreement, plus any shares of
Common Stock issued as a dividend or other distribution, grant or award with
respect to the shares of Common Stock described in the foregoing clause. As to
any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (i) such securities shall have been transferred or
disposed of pursuant to an effective registration statement under the Securities
Act or an exemption from the registration requirements of the Securities Act,
new certificates therefor not bearing a legend restricting further transfer
shall have been delivered by the Company and the subsequent transfer or
disposition of such securities shall not require their registration or
qualification under the Securities Act or any similar state law then in force or
(ii) such securities shall have ceased to be outstanding.
(m) "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
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ARTICLE 2
REGISTRATION RIGHTS
2.1 Form S-3 Shelf Registration.
(a) Registration. The Company shall prepare and file with the
Commission as soon as practicable but in any event within forty-five (45) days
after the Closing Date and use its commercially reasonable efforts (i) to have
declared effective as soon as practicable thereafter (but in any event within
one hundred fifty (150) days after the date that the Form S-3 was initially
filed with the Commission), a registration statement on Form S-3 (or, if the
Company is not then eligible to use Form S-3, then another appropriate form)
providing for the resale by the Holders of all of the Registrable Securities
(the "Shelf Registration Statement"), and (ii) to provide a transfer agent and
registrar for all securities registered pursuant to the Shelf Registration
Statement. The Shelf Registration Statement may include securities other than
those held by Holders. The Company shall use its commercially reasonable efforts
to keep the Shelf Registration Statement continuously effective (subject to
Section 2.1(c)), pursuant to the Securities Act and the Rules and Regulations
promulgated thereunder, until the earliest to occur of (i) the second
anniversary of the Closing Date and (ii) as to a particular Holder, such time as
all Registrable Securities held by such Holder have been sold (A) pursuant to
the Shelf Registration Statement, (B) to or through a broker or dealer or
underwriter in a public distribution or a public securities transaction, and/or
(C) the date on which such Holder can sell all of its Registrable Securities
without registration pursuant to Rule 144(k) (such period, the "Registration
Period"). In the event that the Shelf Registration Statement shall cease to be
effective during the Registration Period, the Company shall promptly prepare and
file a new registration statement covering all Registrable Securities and shall
use its commercially reasonable efforts to have such registration statement
declared effective as soon as practicable. Any such registration statement shall
be considered a "Shelf Registration Statement" hereunder.
(b) Liquidated Damages. In the event that the Shelf Registration
Statement is not filed within forty-five (45) days after the Closing Date or
declared effective by the date that is one hundred fifty (150) days after the
date that the Form S-3 was initially filed with the Commission, the Company
shall pay to the Investor liquidated damages (collectively, the "Liquidated
Damages"), in cash, in an amount equal to one percent (1.0%) of the total
purchase price of the Purchased Shares purchased by such Investor pursuant to
the Purchase Agreement (a "Liquidated Damages Payment") for each thirty day
period (or portion thereof) thereafter, until the Shelf Registration Statement
is filed or becomes effective, as the case may be; provided, however that in the
case of any such period of less than thirty days the Liquidated Damages Payment
shall be calculated on a pro rata basis based on the number of days actually
elapsed in such period; and provided further, however, that such Liquidated
Damages shall in no event exceed five percent (5%) of the total purchase price
of the Purchased Shares purchased by the Investor. Each Liquidated Damages
Payment payable in respect of a thirty day period (or portion thereof) shall be
paid at the end of such thirty day period (or portion thereof). Notwithstanding
the foregoing, all periods shall be tolled during delays directly caused by the
action or inaction of the Investor, and the Company shall have no liability to
the Investor in respect of any such delay. If the Company fails to pay any
liquidated damages pursuant to this Section in full within seven days after the
date payable, the Company will pay interest thereon at a rate of 18% per annum
(or such lesser maximum amount that is permitted to be paid by applicable law)
to the Investor, accruing daily from the date such partial liquidated damages
are due until such amounts, plus all such interest thereon, are paid in full.
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(c) Suspension. If in the good faith judgment of the Board of
Directors of the Company, following the advice of its counsel, it is determined
that: (i) it would be in violation of the Securities Act or Exchange Act for
sales to be made from the Shelf Registration Statement, or (ii) there exists a
material development that the Company would be obligated to disclose in the
Shelf Registration Statement, which disclosure would be premature or
inadvisable, then the Company will be permitted to suspend the use of the Shelf
Registration Statement from time to time for a period not to exceed 45 days in
any one instance, or an aggregate of 90 days in any twelve month period. In the
event of any suspension of the effectiveness of the Shelf Registration Statement
or similar event, the Company will immediately notify the Investor by facsimile.
Upon receipt of notification from the Company of any suspension of the
effectiveness of the Shelf Registration Statement or similar event, the Investor
will immediately discontinue disposition of the securities underlying the Shelf
Registration Statement. In such event, the Company will use commercially
reasonable efforts to cause the use of the Shelf Registration Statement so
suspended to be resumed as soon as possible.
(d) Liquidated Damages not a Penalty. The Company and the Investor
agree that, in the event that under the circumstances described above, the Shelf
Registration Statement is not declared effective within one hundred fifty (150)
days after the date that the Form S-3 was initially filed with the Commission,
as contemplated in Section 2.1(b), it would be impracticable or extremely
difficult to fix or determine the Investor's actual damages. Therefore, the
Company and the Investor each agree that the amount of the Liquidated Damages
has been agreed upon as liquidated damages after negotiation as to the parties'
reasonable estimate of the Investor's damages. The Company and the Investor
agree that the amount of Liquidated Damages is reasonable in light of the
circumstances existing at the execution of this Agreement. The Company and the
Investor each acknowledge that the payment of such Liquidated Damages is not
intended as a forfeiture or penalty.
(e) Expenses. The registration fees and expenses incurred by the
Company in connection with the Shelf Registration Statement, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, transfer agent expenses and the expense of any special audits
incident to or required by any such registration, shall be borne by the Company.
Each Holder shall be responsible for any fees and expenses of its counsel or
other advisers.
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2.2 Obligations of the Company. The Company shall furnish to the Holder
such number of copies of a Prospectus, including a preliminary Prospectus, in
conformity with the requirements of the Securities Act, and such other documents
(including supplements or prospectus amendments) as the Holder may reasonably
request in order to facilitate the public sale or other disposition of the
Registrable Securities owned by it that are included in such registration. Upon
effectiveness of the Shelf Registration Statement, the Company shall cause to be
furnished to its transfer agent an opinion of counsel regarding the resale of
the Registrable Securities. In addition, whenever required to effect the
registration of any Registrable Securities under this Agreement, the Company
shall, as expeditiously as reasonably possible:
(a) Use commercially reasonable efforts to (i) register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such states as shall be reasonably requested by
the Holder, provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions in
which it is not now so qualified or has not so consented and (ii) to keep such
registration or qualification in effect for so long as the Shelf Registration
Statement remains in effect, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign corporation
in any jurisdiction where it is not so qualified, or to subject itself to
taxation in any such jurisdiction, or to execute a general consent to service of
process in effecting such registration, qualification or compliance, unless the
Company is already subject to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or regulations thereunder.
(b) Notify the Holder (i) that the Shelf Registration Statement has
become effective, (ii) of any request by the Commission or any other federal or
state governmental authority during the period of effectiveness of a
registration statement for amendments or supplements to such registration
statement or related prospectus or for additional information, (iii) of the
issuance by the Commission or any other federal or state governmental authority
of any stop order or similar action suspending the effectiveness of a
registration statement or the initiation of any proceedings for that purpose,
and (iv) after the receipt by the Company from the Commission or any other
federal or state governmental authority of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(c) Use commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of the Shelf Registration Statement.
(d) File such amendments (including post-effective amendments) and
supplements to the Shelf Registration Statement and the Prospectus, file such
documents as may be required to be incorporated by reference in any of such
documents, and take all other actions as may be necessary to ensure to the
holders of Registrable Securities the ability to effect the public resale of
their Registrable Securities (including, without limitation, and taking any
commercially reasonable actions necessary to ensure the availability of a
Prospectus meeting the requirements of Section 10(a) of the Securities Act)
continuously throughout the Registration Period.
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2.3 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2.1 or Section
2.2 that the Holder shall furnish to the Company such information regarding it,
the Registrable Securities held by it, and the intended method of disposition of
such securities (and, when necessary, furnish updated information) as shall be
required to timely effect (and maintain the effectiveness of) the registration
of its Registrable Securities.
2.4 Indemnification.
(a) Indemnification by the Company. To the extent permitted by law,
the Company will indemnify and hold harmless the Investor, each Holder, and its
Affiliates and each of their respective partners, officers, directors, managers,
stockholders and members, and any underwriter (as defined in the Securities Act)
for such Investor or Holder and each person, if any, who Controls any of the
foregoing against any losses, claims, damages, liabilities, costs and expenses
(joint and several), insofar as such losses, claims, damages, liabilities, costs
and expenses (or actions in respect thereof) arise out of or are based upon any
of the following statements, omissions or violations (collectively a
"Violation") by the Company: (i) any untrue statement or alleged untrue
statement of a material fact contained (or incorporated by reference) in such
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendment or supplements thereto, (ii) the omission or
alleged omission to state therein a material fact required to be stated therein,
or necessary to make the statements therein not misleading, or (iii) any
violation or alleged violation by the Company of the Securities Act, the
Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement, and the
Company will pay as incurred to such Investor, Holder, partner, officer,
director, manager, stockholder, member, underwriter or controlling person for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the indemnity agreement contained in this Section shall
not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the written consent
of the Company, which consent shall not be unreasonably withheld, nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or action to the extent that it arises out of or is based upon a Violation which
occurs in reliance upon and in conformity with written information furnished
expressly for use in connection with such registration by such Investor, Holder,
partner, officer, director, manager, stockholder, member, underwriter or
controlling person of such Investor or Holder.
(b) Indemnification by the Investor. To the extent permitted by law,
the Investor and any Holder will, if Registrable Securities held by such
Investor or Holder are included in the securities as to which such registration,
qualifications or compliance is being effected, indemnify and hold harmless the
Company, each of its directors, its officers, its stockholders and each person,
if any, who controls the Company within the meaning of the Securities Act, any
underwriter and any Person selling securities under such registration statement
or any of such Person's partners, directors, managers, officers, stockholders or
members or any person who controls such Person, against any losses, claims,
damages or liabilities to which the Company or any such Company director,
officer or controlling person, underwriter or other Person, or partner,
director, manager, officer, stockholder or member or controlling person of such
Person may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
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each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by the
Investor or Holder under an instrument duly executed by such Investor or Holder
and stated to be specifically for use in connection with such registration; and
each such Investor or Holder will pay as incurred any legal or other expenses
reasonably incurred by the Company or any such director, officer, controlling
person, underwriter or other Person, or partner, officer, director, manager,
stockholder or member or controlling person of such other Person in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the indemnity agreement contained in this
Section shall not apply to amounts paid in settlement of any such loss, claim,
damage, liability or action if such settlement is effected without the written
consent of the Investor or Holder, which consent shall not be unreasonably
withheld.
(c) Procedure. Promptly after receipt by an indemnified party under
this Section y2.4 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.4, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 2.4. No indemnifying party, in the
defense of any such claim or litigation, shall, except with the consent of each
indemnified party, 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.
(d) Contribution. If the indemnification provided for in this
Section 2.4 is held by a court of competent jurisdiction to be unavailable to an
indemnified party with respect to any losses, claims, damages or liabilities
referred to herein, the indemnifying party, in lieu of indemnifying such
indemnified party thereunder, shall to the extent permitted by applicable law
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the indemnifying party on the one hand and of the
indemnified party on the other in connection with the Violation(s) that resulted
in such loss, claim, damage or liability, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party shall be determined by a court of law 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.
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(e) Survival. The obligations of the Company and Investor or Holder
under this Section 2.4 shall survive completion of any offering of Registrable
Securities in a registration statement and the termination of this Agreement.
(f) Defect Eliminated in Final Prospectus. The foregoing indemnity
agreements of the Company and the Holder are subject to the condition that,
insofar as they relate to any Violation made in a preliminary prospectus but
eliminated or remedied in the amended Prospectus on file with the Commission at
the time the registration statement in question becomes effective or in the
amended Prospectus filed with the Commission pursuant to Rule 424(b) of the
Commission (the "Final Prospectus"), such indemnity agreements shall not inure
to the benefit of any person if a copy of the Final Prospectus was furnished in
a timely manner to the indemnified party and was not furnished to the person
asserting the loss, liability, claim or damage at or prior to the time such
action is required by the Securities Act.
2.5 Rule 144 Reporting. With a view to making available to the Investor or
Holder the benefits of certain rules and regulations of the Commission which may
permit the sale of the Registrable Securities to the public without
registration, the Company agrees to use commercially reasonable efforts to:
(a) Make and keep public information regarding the Company
available, as those terms are understood and defined in Rule 144 under the
Securities Act or any similar or analogous rule promulgated under the Securities
Act, at all times after the effective date of the Shelf Registration Statement;
(b) File with the Commission, in a timely manner, all reports and
other documents required of the Company under the Exchange Act after it has
become subject to such reporting obligations; and
(c) So long as the Investor or Holder owns any Registrable
Securities, furnish to such Investor or Holder upon written request: a written
statement by the Company as to its compliance with the reporting requirements of
said Rule 144 under the Securities Act, and of the Exchange Act (at any time
after it has become subject to such reporting requirements); a copy of the most
recent annual or quarterly report of the Company; and such other reports and
documents as an Investor or Holder may reasonably request in availing itself of
any rule or regulation of the Commission allowing it to sell any such securities
without registration.
2.6 Assignment of Registration Rights. The rights to cause the Company to
register Registrable Securities pursuant to this Article 2 may be assigned by
the Investor to a transferee or assignee of Registrable Securities; provided
that prior to the transfer, (i) the transferor shall furnish to the Company
written notice of the name and address of such transferee or assignee and the
securities with respect to which such registration rights are being assigned and
(ii) such transferee shall agree in writing to be subject to all restrictions
applicable to and obligations of the transferring Investor set forth in this
Agreement.
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ARTICLE 3
MISCELLANEOUS
3.1 Termination of Agreement. This Agreement shall terminate upon the
earliest to occur of (i) the second anniversary of the Closing Date and (ii) as
to the Investor, such time as all Registrable Securities held by such Investor
have been sold (A) pursuant to the Shelf Registration Statement, (B) to or
through a broker or dealer or underwriter in a public distribution or a public
securities transaction, and/or (C) the date on which such Investor can sell all
of its Registrable Securities without registration pursuant to Rule 144(k).
3.2 Entire Agreement. This Agreement contains the entire agreement between
the parties hereto pertaining to the subject matter hereof and supersedes all
prior agreements among any of them with respect thereto.
3.3 Amendment; Waiver. Neither this Agreement nor any term hereof may be
amended, waived or discharged other than by written instrument signed by the
Company and the Investor.
3.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic substantive laws of the State of Colorado, without
giving effect to any choice or conflict of law provision or rule that would
cause the application of the laws of any other jurisdiction.
3.5 Notices. All notices and other communications given to any party
hereto pursuant to this Agreement shall be in writing and shall be hand
delivered, or sent either by (a) certified mail, postage prepaid, return receipt
requested; (b) electronic mail, (c) an overnight express courier service that
provides written confirmation of delivery; or (d) facsimile transmission with
written confirmation by the sending machine or with telephone confirmation of
receipt (provided that a confirming copy is sent by overnight express courier
service that provides written confirmation of delivery), addressed as follows:
(a) If to the Company:
Infinity, Inc.
1401 W. Main - Suite C
Chanute, Kansas 66720
Tel: (620) 431-6200
Fax: (620) 431-6262
Attention: President
with a copy to:
Davis Graham & Stubbs LLP
1550 17th Street, Suite 500
Denver, CO 80202
Tel: 303-892-9400
Fax: 303-893-1379
E-mail: deborah.friedman@dgslaw.com
Attention: Deborah Friedman
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(b) To the Investor:
Any communication given in conformity with this Section 3.5 shall be effective
upon the earlier of actual receipt or deemed delivery. Delivery shall be deemed
to have occurred as follows: if hand delivered on the day so delivered; if
mailed, three business days after the same is deposited in the United States
Mail; if telecopied or sent by electronic mail, upon written confirmation by the
sending machine of effective transmission or upon telephone confirmation of
receipt; and if sent by overnight express courier service, the next business
day. Any party may at any time change its address for receiving communications
pursuant to this Section 3.5 by giving notice of a new address in the manner
provided herein.
3.6 Assignment. Except as expressly provided in Section 2.6, hereof, none
of the rights and obligations of any Investor set forth in this Agreement may be
transferred or assigned without the prior written consent of the Company (which
consent shall not be unreasonably withheld), and any purported assignment made
without such consent shall be void. This Agreement shall be binding upon, and
inure to the benefit of, the parties hereto, all permitted transferees and
assignees of any Investor, and all of the respective heirs, legatees, personal
representatives, successors and assigns of any Investor, to the extent permitted
by this Agreement.
3.7 Invalid Provision. If any term or provision of this Agreement is held
by a court of competent jurisdiction to be invalid, void or unenforceable in any
respect, the remainder of the terms and provisions shall be unaffected and shall
remain in full force and effect, and any such invalid, void or unenforceable
term or provision shall be construed by limiting it so as to be valid and
enforceable to the maximum extent compatible with, and possible under,
applicable law.
3.8 Time Periods. In computing the number of days for any purpose of this
Agreement, all days shall be counted including Saturdays, Sundays and holidays,
except that if the last day of any period occurs on a Saturday, Sunday or
holiday, the period will be deemed extended to the end of the next succeeding
day which is not a Saturday, Sunday or holiday. A holiday for purposes of this
Agreement shall mean those days on which banks in the State of Delaware may, or
are obligated to, remain closed.
3.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
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3.10 Delivery by Facsimile. This Agreement, the agreements referred to
herein, and each other agreement or instrument entered into in connection
herewith or therewith or contemplated hereby or thereby, and any amendments
hereto or thereto, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall re-execute original forms thereof and deliver them to
all other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
3.11 Interpretation of Agreement. The parties hereto acknowledge and agree
that this Agreement has been negotiated at arm's-length and among parties
equally sophisticated and knowledgeable in the matters dealt with in this
Agreement. Accordingly, any rule of law or legal decision that would require
interpretation of any ambiguities in this Agreement against the party that has
drafted it is not applicable and is waived. The provisions of this Agreement
shall be interpreted in a reasonable manner to effect the intent of the parties
as set forth in this Agreement.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
INFINITY, INC.
By: _______________________
Name:
Title:
"INVESTOR"
By:
By: _______________________
Name:
Title: