Exhibit 10.6
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement dated as of November 8th, 2002, (as
amended, supplemented or otherwise modified from time to time, this
..'Agreement"), by and between ▇▇▇▇▇▇▇▇▇ Holding Corporation, a Delaware
corporation (the "Company"), and SZ Investments, L.L.C., a Delaware limited
liability company ("SZI").
WITNESSETH:
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WHEREAS, the Company and SZI are entering into this Agreement to
maintain uninterrupted as between them certain arrangements with respect to
registration rights, which arrangements were originally memorialized in an
Investment Agreement dated April 14, 1999, which Investment Agreement was
terminated by all the parties thereto immediately prior hereto.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
ARTICLE I
REGISTRATION RIGHTS
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1.1 Definitions. For purposes of this Article I:
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(a) The term "Common Stock" means the Company's common stock, par value
$.10 per share.
(b) The term "Company Voting Securities" shall mean Common Stock and
any other equity securities of the Company entitled to vote generally for the
election of directors
(c) The term "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(d) The term "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act of 1933, as amended (the "Act").
(e) The term "Registrable Securities" means shares of Common Stock
held, from time to time, by SZI.
(f) The term "Rule 415 Offering" means an offering on a delayed or
continuous basis pursuant to Rule 415 (or any successor rule to similar effect)
promulgated under the Act.
(g) The term "Shelf Registration Statement" means a registration
statement intended to effect a shelf registration in connection with a Rule 415
Offering.
1.2 Shelf Registrations and Piggv-Back Registrations.
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(a) Provided Article Fifth of the Company's Certificate of
Incorporation does not prohibit the sale, pledging or other disposition or
transfer of the Registrable Securities, if the Company shall at any time receive
a written request from SZI (or its designee) on behalf of SZI
who are the holders ("Holders") of Registrable Securities that the Company file
a Shelf Registration Statement with respect to any Registrable Securities, then,
within sixty (60) days after the receipt of such request, the Company shall
prepare and file with the SEC a Shelf Registration Statement (which shall
include pledgees of any selling stockholder in the "plan of distribution") with
respect to such number of Registrable Securities which the Holders request to be
registered and use its reasonable efforts to cause such Shelf Registration
Statement to become effective and keep such Shelf Registration Statement
effective until such time as all such Registrable Securities covered thereby
have been sold or disposed of thereunder or sold, transferred or otherwise
disposed of (other than pursuant to a pledge of such Registrable Securities) to
a person that is not a Holder. Notwithstanding the foregoing, if the Company
shall furnish to SZI a certificate signed by the Chief Executive, Chief
Operating, or Chief Financial Officer of the Company stating that, in the good
faith judgment of a majority of the Disinterested Directors, it would be
materially detrimental to the Company for such Shelf Registration Statement to
be filed, the Company shall have the right to defer such filing for a period of
not more than 120 days after receipt of the SZI's request; provided, however,
that the Company may not utilize this right more than twice in any 12-month
period. Notwithstanding the foregoing, SZI and the Company agree that SZI's
right to request a Shelf Registration and the Company's obligation to effect a
Shelf Registration shall terminate as of the earlier of (i) such time as SZI no
longer holds Registrable Securities or (ii) such time as the Company has filed
two (2) Shelf Registration Statements at the request of SZI (or its designee)
and such previously filed Shelf Registration Statements have been effective for
the period required under this Section 1.2(a).
(b) Piggyback Registration If (but without any obligation to do so) the
Company proposes to register any of its Common Stock under the Act in connection
with the public offering of such Common Stock by the Company solely for cash
(other than a registration relating solely to the sale of securities to
participants in a dividend reinvestment plan, stock plan or employee benefit
plan; a registration relating solely to the issuance of securities to the
security holders of an acquired company in connection with an acquisition; or a
registration on any form which does not permit inclusion of selling
stockholders), or the Company proposes to register any of its securities on
behalf of a holder exercising demand registration rights, the Company shall, at
such time, promptly give SZI written notice of such registration. Upon the
written request of SZI given within 15 days after mailing of such notice by the
Company, the Company shall cause to be registered under the Act all of the
Registrable Securities that SZI has requested to be registered. Notwithstanding
anything to the contrary in this Section 1.2(b), in connection with any offering
involving an underwriting of shares being issued by the Company, the Company
shall not be required under this Section 1.2(b) to include any of the Holders'
Registrable Securities in such underwriting or the registration statement
relating thereto unless they accept the terms of the underwriting as agreed upon
between the Company and the underwriters selected by the Company. If the total
amount of securities, including Registrable Securities, requested by Holders and
other stockholders to be included in such offering exceeds the amount of
securities offered other than by the Company that the underwriters reasonably
believe can be offered without jeopardizing the success of the offering, then
the Company shall be required to include in the offering only that number of
such securities, including Registrable Securities, which the underwriters
believe will not jeopardize the success of the offering. To achieve any
necessary reduction in the securities to be sold, the securities to be excluded
from the offering shall first be selected (in each case, pro rata among such
class of holders according to the total amount of securities proposed to be
included in the registration statement or in such other proportions as shall
mutually be agreed to by such class of holders) in the following order (subject
to any contrary provisions in registration rights agreements executed by the
Company prior to the date hereof): (i) first, securities being
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included on behalf of holders other than either SZI or other holders of
Registrable Securities shall be excluded; (ii) next, if additional securities
must be excluded, Registrable Securities included pursuant to Section 1.2(b)
shall be excluded; (iii) finally, if additional securities must be excluded,
securities offered by the Company shall be excluded.
1.3 Additional Obligations of the Company. Whenever the Company has
filed a registration statement under this Article I, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to comply with the provisions of the Act with respect to the
disposition of all securities covered thereby.
(b) Furnish to the holders of Registrable Securities such numbers of
copies of a prospectus, including a preliminary prospectus, in conformity with
the requirements of the Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities covered
by such registration statement owned by them.
(c) Use its best efforts to register and qualify the securities covered
by such registration statement under such other securities or Blue Sky laws of
such states or other jurisdictions as shall be reasonably requested by the
holders of Registrable Securities, provided that the Company shall not be
required to qualify to do business or to file a general consent to service of
process in any such states or jurisdictions where it is not so subject.
(d) Notify each holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and then
use its best efforts to promptly correct such statement or omission.
Notwithstanding the foregoing and anything to the contrary set forth in this
Section 1.3, each holder of Registrable Securities acknowledges that the Company
shall have the right to suspend the use of the prospectus forming a part of a
registration statement if such offering would interfere with a pending corporate
transaction or for other reasons until such time as an amendment to the
registration statement has been filed by the Company and declared effective by
the SEC, or until such time as the Company has filed an appropriate report with
the SEC pursuant to the Exchange Act. Each holder of Registrable Securities
hereby covenants that it will (a) keep any such notice strictly confidential,
and (b) not sell any shares of Common Stock pursuant to such prospectus during
the period commencing at the time at which the Company gives the holder of
Registrable Securities notice of the suspension of the use of such prospectus
and ending at the time the Company gives the holder of Registrable Securities
notice that it may thereafter effect sales pursuant to such prospectus. The
Company shall only be able to suspend the use of such prospectus for periods
aggregating no more than 90 days in respect of any registration.
(e) Use its best efforts to cause all Registrable Securities to be
listed on all securities exchanges on which similar securities issued by the
Company are then listed.
1.4 Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Article I with
respect to the Registrable Securities
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of any selling holder of Registrable Securities that such holder of Registrable
Securities shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such holder's
Registrable Securities and as may be required from time to time to keep such
registration current.
1.5 Expenses of Reaistration. All expenses incurred by or on behalf of
the Company in connection with registrations, filings or qualifications pursuant
to Section 1.2, including, without limitation, all registration, filing and
qualification fees, printers' and accounting fees, and fees and disbursements of
counsel for the Company, shall be borne by the Company. In no event shall the
Company be obligated to bear any underwriting discounts or commissions or
brokerage fees or commissions relating to Registrable Securities or the fees and
expenses of counsel to the selling holders of Registrable Securities.
1.6 Indemnification. In the event any Registrable Securities are
included in a registration statement under this Article I:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each holder and the affiliates of such holder, and their respective
directors, officers, general and limited partners, agents and representatives
(and the directors, officers, affiliates and controlling persons thereof), and
each other person, if any, who controls such holder within the meaning of the
Act, against any losses, claims, damages, or liabilities (joint or several) to
which they may become subject under the Act, the Exchange Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation"): (i) any untrue
statement or alleged untrue statement of a material fact contained in such
registration statement, including any preliminary prospectus (but only if such
statement is not corrected in the final prospectus) contained therein or any
amendments 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 (but only if such omission is not
corrected in the final prospectus), or (iii) any violation or alleged violation
by the Company in connection with the registration of Registrable Securities
under the Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Act, the Exchange Act or any state securities
law; and the Company will pay to each such Holder, affiliate or controlling
person, as incurred, 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 1.6(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 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
any such holder or controlling person. Each indemnified party shall furnish such
information regarding itself or the claim in question as an indemnifying party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
(b) To the extent permitted by law, each selling holder of Registrable
Securities will indemnify and hold harmless the Company, each of its directors,
each of its officers who has signed the registration statement, each person, if
any, who controls the Company within the meaning of the Act, any underwriter,
any other holder selling securities in such registration
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statement and any controlling person of any such underwriter or other holder,
against any losses, claims, damages or liabilities Joint or several) to which
any of the foregoing persons may become subject, under the 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 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 such holder expressly for use in connection with such registration;
and each such holder will pay, as incurred, any legal or other expenses
reasonably incurred by any person intended to be indemnified pursuant to this
Section 1.6(b) in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 1.6(b) 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 such holder, which consent shall
not be unreasonably withheld; provided, that, in no event shall any indemnity
under this Section 1.6(b) exceed the gross proceeds from the offering received
by such holder.
(c) Promptly after receipt by an indemnified party under this Section
1.6 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 1.6, 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. The failure to deliver written notice to the
indemnifying party within a reasonable time after 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 1.6 to the extent of such prejudice, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 1.6.
The indemnified party shall have the right, but not the obligation, to
participate in the defense of any action referred to above through counsel of
its own choosing and shall have the right, but not the obligation, to assert any
and all separate defenses, cross claims or counterclaims which it may have, and
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the employment of such counsel has been
specifically authorized in advance by the indemnifying party , (ii) there is a
conflict of interest that prevents counsel for the indemnifying party from
adequately representing the interests of the indemnified party or there are
defenses available to the indemnified party that are different from, or
additional to, the defenses that are available to the indemnifying party, (iii)
the indemnifying party does not employ counsel that is reasonably satisfactory
to the indemnified party within a reasonable period of time, or (iv) the
indemnifying party fails to assume the defense or does not reasonably contest
such action in good faith, in which case, if the indemnified party notifies the
indemnifying party that it elects to employ separate counsel, the indemnifying
party shall not have the right to assume the defense of such action on behalf of
the indemnified party and the reasonable fees and expenses of such separate
counsel shall be borne by the indemnifying party; provided, however, that, the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to one firm acting as local
counsel) for all indemnified parties.
(d) The obligations of the Company and the holders under this Section
1.6 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Article I
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(e) Notwithstanding the foregoing, to the extent that the provisions
on indemnification and contribution contained in the underwriting agreement (if
any) entered into in connection with any underwritten public offering of the
Registrable Securities are in conflict with the foregoing provisions, the
provisions in such underwriting agreement shall control.
1. 7 Reports Under the Exchange Act. With a view to making available
to the holders of Registrable Securities the benefits of Rule 144 promulgated
under the Exchange Act and any other rule or regulation of the SEC that may at
any time permit a holder to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3, the Company agrees to:
(a) use its best efforts to make and keep public information
available, as those terms are understood and defined in Rule 144;
(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents :required under the Act and the Exchange Act; and
(c) furnish to any Holder forthwith upon request (i) a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144, or as to whether it qualifies as a registrant whose securities may be
resold pursuant to Form S-3, (ii) a copy of the most recent annual or quarterly
report of the Company and such other reports and documents so filed by the
Company, and (iii) such other information (and the Company shall take such
action) as may be reasonably requested in availing any holder of Registrable
Securities of any rule or regulation of the SEC which permits the selling of any
such securities without registration or pursuant to such form.
1.8 No Assignment of Registration Rights. The rights to cause the
Company to register Registrable Securities pursuant to this Article I may only
be assigned by a holder of Registrable Securities to a transferee or assignee of
any Registrable-Securities if immediately following such transfer the further
disposition of such securities by the transferee or assignee is restricted under
the Act.
1.9 Waiver Procedures. The observance by the Company of any provision
of this Article I may be waived (either generally or in a particular instance
and either retroactively or prospectively) with the written consent of the
holders of a majority of the Registrable Securities, and any waiver effected in
accordance with this paragraph shall be binding upon each holder of Registrable
Securities.
1.10 "Market Stand-off" Agreement. Any holder of Registrable
Securities, if requested by an underwriter of any registered public offering of
Company securities being sold in a firm commitment underwriting, agrees not to
sell or otherwise transfer or dispose of any Common Stock (or other Company
Voting Securities) held by such holder other than shares of Registrable
Securities included in the registration during the seven days prior to, and
during a period of up to 180 days following, the effective date of the
registration statement. Such agreement shall be in writing in a form reasonably
satisfactory to the Company and such underwriter. The Company may impose
stop-transfer instructions with respect to the securities subject to the
foregoing restriction until the end of the required stand-off period.
ARTICLE II
MISCELLANEOUS
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2. 1 Remedies. Each of SZI and the Company acknowledge and agree that
(i) the provisions of this Agreement are reasonable and necessary to protect the
proper and legitimate interests of the parties hereto, and (ii) the parties
would be irreparably damaged in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that each party shall be entitled
to seek preliminary and permanent injunctive relief to prevent breaches of the
provisions of this Agreement by the other party (or its Affiliates) without the
necessity of proving actual damages or of posting any bond, and to enforce
specifically the terms and provisions hereof and thereof in any court of the
United States or any state thereof having jurisdiction, which rights shall be
cumulative and in addition to any other remedy to which the parties may be
entitled hereunder or at law or equity.
2.2 Notices. All notices, and other communications hereunder shall be
in writing and shall be deemed given if delivered personally, sent by documented
overnight delivery service or, to the extent receipt is confirmed, facsimile, to
the appropriate address or facsimile number set forth below (or at such other
address or facsimile number for a party as shall be specified by like notice):
if to the Company:
▇▇▇▇▇▇▇▇▇ Holding Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇,
Executive Vice President and General Counsel
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to SZI :
SZ Investments, L.L.C.
Two ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ -▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇; ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇; (▇▇▇) ▇▇▇-▇▇▇▇
2.3 Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The parties hereto agree that they will use
their best efforts at all times to support and defend this Agreement.
2.4 Amendments. This Agreement may be amended only by an agreement in
writing signed by each of the parties hereto;
2.5 Governing Law. This Agreement shall be governed and controlled as
to validity, enforcement, interpretation, construction, effect and in all other
respects by the internal laws of the State of Delaware applicable to contracts
made in that State.
2.6 Descriptive Headings. Descriptive headings are for convenience
only and shall not control or affect the meaning or construction of any
provision of this Agreement
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2. 7 Counterparts; Facsimile Sianatures. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
bears the signatures of each of the parties hereto. This Agreement may be
executed in any number of counterparts, each of which shall be an original as
against the party whose signature appears thereon, or on whose behalf such
counterpart is executed, but all of which taken together shall be one and the
same agreement. A facsimile copy of a signature of a party to this Agreement or
any such counterpart shall be fully effective as if an original signature.
2.8 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the successors and assigns of the
parties hereto.
2.9 Assignments. This Agreement may not be assigned without the
prior written consent of each party hereto, and any attempt to effect an
assignment hereof without such consent shall be void.
2.1O Jurisdiction and Service of Process. THE COMPANY AND SZI HEREBY
CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE
STATE OF DELAWARE AND IRREVOCABLY AGREE THAT, SUBJECT TO THE OTHER PROVISIONS OF
THIS AGREEMENT, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
AGREEMENT WHICH MAY BE LITIGATED SHALL BE LITIGATED IN SUCH COURTS. THE COMPANY
AND SZI ACCEPTS FOR SUCH PARTY AND IN CONNECTION WITH SUCH PARTY'S PROPERTIES,
GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID
COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. THE
COMPANY AND SZI AGREES TO ACCEPT SERVICE OF ALL PROCESS, BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, IN ANY SUCH PROCEEDINGS IN ANY SUCH
COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY EACH SUCH PARTY TO BE EFFECTIVE
AND BINDING SERVICE IN EVERY RESPECT. IF ANY AGENT APPOINTED BY THE COMPANY OR
SZI REFUSES TO ACCEPT SERVICE, SUCH PARTY HEREBY AGREES THAT SERVICE UPON SUCH
PARTY BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT
THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT
THE RIGHT OF THE COMPANY OR SZI TO BRING PROCEEDINGS AGAINST THE COMPANY OR
SZIIN THE COURTS OF ANY OTHER JURISDICTION.
2.11 Trial. THE COMPANY AND SZI HEREBY WAIVES SUCH PARTY'S RIGHTS TO
A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY DEALINGS BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT
MATTER HEREOF. THE COMPANY AND SZI ALSO WAIVES ANY BOND OR SURETY OR SECURITY
UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF ANY PARTY TO
THIS AGREEMENT WITH RESPECT TO ANY ACTION COMMENCED BY ONE OF THEM AGAINST THE
OTHER OF THEM. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF
ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION, CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. THE COMPANY AND SZI ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY
RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH WILL CONTINUE
TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH OF
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THE COMPANY AND SZI FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED
THIS WAIVER WITH SUCH PARTY'S LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND
VOLUNTARILY WAIVES SUCH PARTY'S JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH
LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED
EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. IN THE
EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL
BY THE COURT.
IN WITNESS WHEREOF, the Company and SZI have executed this Agreement as
of the date first above written.
▇▇▇▇▇▇▇▇▇ HOLDING CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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SZ INVESTMENTS, L.L.C.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President
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