REGISTRATION RIGHTS AGREEMENT
TABLE OF
CONTENTS
Exhibit
10.4
This
Registration Rights Agreement (this “ Agreement ”) is made and
entered into as of October 29, 2009, by and among Secure America Acquisition
Corporation, a Delaware corporation (the “ Company ”), and the investors
listed on Schedule A
hereto (the “ Investors
”).
WHEREAS,
the Company, Ultimate Escapes Holdings, LLC, a Delaware limited liability
company (the “ LLC ”),
Ultimate Resort Holdings, LLC, a Delaware limited liability company and the
member representative, have entered into a Contribution Agreement, dated as of
September 2, 2009 (the “ Contribution Agreement ”),
pursuant to which the Company will receive Membership Interests in the LLC in
exchange for the Contributed Property, as defined therein;
WHEREAS,
pursuant to and in accordance with the terms and provisions of the Amended and
Restated Operating Agreement of the LLC (the “ Operating Agreement ”), the
Investors have certain rights with respect to conversion of their Membership
Interests into capital stock of the Company; and
WHEREAS,
one of the conditions to the consummation of the transactions contemplated by
the Contribution Agreement is the execution and delivery of this
Agreement.
The
Company and the Investors hereby agree as follows:
1. Definitions.
Capitalized
terms used and not otherwise defined herein shall have the meanings given such
terms in the Contribution Agreement. As used in this Agreement, the following
terms shall have the following meanings:
“ Advice ” shall have meaning
set forth in Section 3(m).
“ Affiliate ” means, with
respect to any Person, any other Person that directly or indirectly controls or
is controlled by or under common control with such Person. For the purposes of
this definition, “ control ,” when used with
respect to any Person, means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms of “ affiliated ,” “ controlling ” and “ controlled ” have meanings
correlative to the foregoing.
“ Board ” shall have meaning set
forth in Section 3(n).
“ Business Day ” means any day
except Saturday, Sunday and any day which shall be a legal holiday or a day on
which banking institutions in the state of New York generally are authorized or
required by law or other government actions to close.
“ Closing Date ” means the date
of the closing of the transactions contemplated by the Contribution
Agreement.
“ Commission ” means the
Securities and Exchange Commission.
“ Common Stock ” means the
Company’s Common Stock, par value $0.0001 per share.
“ Effectiveness Period ” shall
have the meaning set forth in Section 2.
“ Exchange Act ” means the
Securities Exchange Act of 1934, as amended.
“ Filing Date ” means the date
that is eight (8) months following the Closing Date.
“ Holder ” or “ Holders ” means each of the
Investors and any transferee of any of them to whom Registrable Securities have
been transferred in accordance with Section 7(e) of this Agreement, other than a
transferee to whom Registrable Securities have been transferred pursuant to a
Registration Statement under the Securities Act or Rule 144 or Regulation S
under the Securities Act (or any successor rule thereto).
“ Indemnified Party ” shall have
the meaning set forth in Section 5(c).
“ Indemnifying Party ” shall
have the meaning set forth in Section 5(c).
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“ Losses ” shall have the
meaning set forth in Section5(a).
“ Person ” means an individual
or a corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or political subdivision thereof) or other entity of
any kind.
“ Proceeding ” means an action,
claim, suit, investigation or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“ Prospectus ” means the
prospectus included in the Registration Statement (including, without
limitation, a prospectus that includes any 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, with respect to the terms of the offering of any
portion of the Registrable Securities covered by the Registration Statement, and
all other amendments and supplements to the Prospectus, including post-effective
amendments.
“ Registration Expenses ” shall
mean all expenses incurred by the Company in compliance with Section 2 hereof,
including, without limitation, all registration and filing fees, printing
expenses, fees and disbursements of counsel for the Company, blue sky fees and
expenses and the expense of any special audits incident to or required by any
such registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company).
“ Registrable Securities ” means
the shares of Common Stock issued pursuant to the Operating Agreement; provided, however , that such
shares of Common Stock shall no longer be deemed Registrable Securities if
either (i) such shares have been sold pursuant to an effective Registration
Statement or pursuant to Rule 144 or (ii) such shares may be sold without
restriction under Rule 144.
“ Registration Statement ” means
the registration statement and any additional registration statements
contemplated by Sections 2 or 3, including (in each case) the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto, and all
material incorporated by reference in such registration statement.
“ Rule 144 ” means Rule 144
promulgated by the Commission pursuant to the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“ Rule 158 ” means Rule 158
promulgated by the Commission pursuant to the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“ Rule 415 ” means Rule 415
promulgated by the Commission pursuant to the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.
“ Securities Act ” means the
Securities Act of 1933, as amended.
“ Selling Expenses ” shall mean,
with respect to a given Holder, all underwriting discounts and selling
commissions applicable to the sale of the Registrable Securities of such Holder
and all fees and disbursements of counsel to such Holder.
2. Shelf
Registration.
The
Company shall use commercially reasonable efforts to prepare and file with the
Commission as soon as practicable after the Closing Date (but in any event by
the Filing Date), a “shelf” Registration Statement covering the resale of all
Registrable Securities for an offering to be made on a continuous basis pursuant
to Rule 415. The Registration Statement shall be on Form S-3 (except if the
Company is not then eligible to register for resale the Registrable Securities
on Form S-3, in which case such registration shall be on another appropriate
form in accordance herewith). The Company shall use its commercially reasonable
efforts to cause the Registration Statement to be declared effective under the
Securities Act as promptly as possible after the filing thereof, and to keep
such Registration Statement continuously effective under the Securities Act
until such date as is the earlier of (x) the date when all Registrable
Securities covered by such Registration Statement have been sold or (y) the date
on which the Registrable Securities may be sold without any restriction pursuant
to Rule 144 as determined by the counsel to the Company pursuant to a written
opinion letter, addressed to the Company’s transfer agent to such effect (the “
Effectiveness Period
”).
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3. Registration
Procedures.
In
connection with the Company’s registration obligations hereunder, the Company
shall:
(a) Use
commercially reasonable efforts to prepare and file with the Commission, as soon
as practicable following the Closing Date (but in any event on or prior to the
Filing Date), a Registration Statement on Form S-3 (or if the Company is not
then eligible to register for resale the Registrable Securities on Form S-3 such
registration shall be on another appropriate form in accordance herewith)
including the method or methods of distribution thereof as specified by the
Holders (except if otherwise directed by the Holders) and in accordance with
applicable law, and cause the Registration Statement to become effective and
remain effective as provided herein; provided, however , that not
less than five (5) Business Days prior to the filing of the Registration
Statement or any related Prospectus or any amendment or supplement thereto, the
Company shall (i) furnish to the Holders, copies of all such documents proposed
to be filed, which documents will be subject to the review of such Holders, and
(ii) cause its officers and directors, counsel and independent certified public
accountants to respond to such inquiries as shall be necessary, in the
reasonable opinion of counsel to such Holders, to conduct a reasonable review of
such documents. The Company shall not file the Registration Statement or any
such Prospectus or any amendments or supplements thereto to which the Holders of
a majority of the Registrable Securities shall reasonably object in writing
within five (5) Business Days of their receipt thereof.
(b) (i)
Prepare and file with the Commission such amendments, including post-effective
amendments, to the Registration Statement as may be necessary to keep the
Registration Statement continuously effective as to the applicable Registrable
Securities for the Effectiveness Period and prepare and file with the Commission
such additional Registration Statements in order to register for resale under
the Securities Act all of the Registrable Securities; (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus supplement,
and as so supplemented or amended to be filed pursuant to Rule 424 (or any
similar provisions then in force) promulgated under the Securities Act; (iii)
respond as promptly as possible to any comments received from the Commission
with respect to the Registration Statement or any amendment thereto and as
promptly as possible provide the Holders true and complete copies of all
correspondence from and to the Commission relating to the Registration
Statement; and (iv) comply in all material respects with the provisions of the
Securities Act and the Exchange Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement during the
applicable period in accordance with the intended methods of disposition by the
Holders thereof set forth in the Registration Statement as so amended or in such
Prospectus as so supplemented.
(c)
Notify the Holders of Registrable Securities as promptly as possible (i)(A) when
a Prospectus or any Prospectus supplement or post-effective amendment to the
Registration Statement is filed; (B) when the Commission notifies the Company
whether there will be a “review” of such Registration Statement and whenever the
Commission comments in writing on such Registration Statement and (C) with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective; (ii) of any request by the Commission or any other
Federal or state governmental authority for amendments or supplements to the
Registration Statement or Prospectus or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement covering any or all of the Registrable Securities or the
initiation or threatening of any Proceedings for that purpose; (iv) of the
receipt by the Company 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 of any Proceeding for
such purpose; and (v) of the occurrence of any event that makes any statement
made in the Registration Statement or Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires any revisions to the Registration Statement, Prospectus or other
documents so that, in the case of the Registration Statement or the Prospectus,
as the case may be, it will not contain any 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, in the light of the circumstances under which they
were made, not misleading.
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(d) Use
its commercially reasonable efforts to avoid the issuance of, or, if issued,
obtain the withdrawal of, as promptly as possible, (i) any order suspending the
effectiveness of the Registration Statement or (ii) any suspension of the
qualification (or exemption from qualification) of any of the
RegistrableSecurities for sale in any jurisdiction.
(e) If
requested by the Holders of a majority in interest of the Registrable
Securities, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment to the Registration Statement such information as the
Company reasonably agrees should be included therein and (ii) make all required
filings of such Prospectus supplement or such post-effective amendment as soon
as practicable after the Company has received notification of the matters to be
incorporated in such Prospectus supplement or post-effective
amendment.
(f) If
requested by any Holder, furnish to such Holder, without charge, at least one
conformed copy of each Registration Statement and each amendment thereto,
including financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference, and all exhibits to the extent
requested by such Person (including those previously furnished or incorporated
by reference) promptly after the filing of such documents with the
Commission.
(g)
Promptly deliver to each Holder, without charge, as many copies of the
Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons may reasonably request; and
subject to the provisions of Section 3(m), the Company hereby consents to the
use of such Prospectus and each amendment or supplement thereto by each of the
selling Holders in connection with the offering and sale of the Registrable
Securities covered by such Prospectus and any amendment or supplement
thereto.
(h) Prior
to any public offering of Registrable Securities, use its commercially
reasonable efforts to register or qualify or cooperate with the selling Holders
in connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any Holder requests in writing, to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period
and to do any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by a Registration Statement; provided, however , that the
Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or subject the Company to any material tax in any such
jurisdiction where it is not then so subject.
(i)
Cooperate with the Holders to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold pursuant to a
Registration Statement, which certificates, to the extent permitted by
applicable federal and state securities laws, shall be free of all restrictive
legends, and to enable such Registrable Securities to be in such denominations
and registered in such names as any Holder may request in connection with any
sale of Registrable Securities.
(j) Upon
the occurrence of any event contemplated by Section 3(c)(v), as promptly as
possible, prepare a supplement or amendment, including a post-effective
amendment, to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated therein by
reference, and file any other required document so that, as thereafter
delivered, neither the Registration Statement nor such Prospectus contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(k) Use
its commercially reasonable efforts to cause all Registrable Securities relating
to such Registration Statement to be listed on the Nasdaq Stock Market or any
other securities exchange, quotation system or market, if any, on which similar
securities issued by the Company are then listed.
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(l)
Comply in all material respects with all applicable rules and regulations of the
Commission and make generally available to its security holders earning
statements satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 not later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) commencing
on the first day of the first fiscal quarter of the Company after the effective
date of the Registration Statement, which statement shall conform to the
requirements of Rule 158.
(m) Be
permitted to require each selling Holder to furnish to the Company information
regarding such Holder and the distribution of such Registrable Securities as is
required by law to be disclosed in the Registration Statement, Prospectus, or
any amendment or supplement thereto, and the Company may exclude from such
registration the Registrable Securities of any such Holder who unreasonably
fails to furnish such information within ten (10) Business Days after receiving
such request, provided,
however ; that the Company shall amend such registration statement to
include such Holder within ten (10) Business Days of receiving such information
from the Holder.
Each
Holder covenants and agrees that (i) it will not sell any Registrable Securities
under the Registration Statement until it has received copies of the Prospectus
as then amended or supplemented as contemplated in Section 3(g) and notice from
the Company that such Registration Statement and any post-effective amendments
thereto have become effective as contemplated by Section 3(c) and (ii) it and
its officers, directors or Affiliates, if any, will comply with the prospectus
delivery requirements of the Securities Act as applicable to them in connection
with sales of Registrable Securities pursuant to the Registration
Statement.
Each
Holder agrees by its acquisition of such Registrable Securities that, upon
receipt of a notice from the Company of the occurrence of any event of the kind
described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(n), such Holder
will forthwith discontinue disposition of such Registrable Securities under the
Registration Statement until such Holder’s receipt of the copies of the
supplemented Prospectus and/or amended Registration Statement contemplated by
Section 3(j), or until it is advised in writing (the “ Advice ”) by the Company that
the use of the applicable Prospectus may be resumed, and, in either case, has
received copies of any additional or supplemental filings that are incorporated
or deemed to be incorporated by reference in such Prospectus or Registration
Statement.
(n) If
(i) there is material non-public information regarding the Company which the
Company’s Board of Directors (the “ Board ”) reasonably determines
not to be in the Company’s best interest to disclose and which the Company is
not otherwise required to disclose, or (ii) there is a significant business
opportunity (including, but not limited to, the acquisition or disposition of
assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer or other similar transaction) available to the
Company which the Board reasonably determines not to be in the Company’s best
interest to disclose, then the Company may postpone or suspend filing or
effectiveness of a registration statement for a period not to exceed twenty (20)
consecutive days.
4. Registration
Expenses.
All
Registration Expenses incurred in connection with any registration,
qualification or compliance pursuant to this Agreement shall be borne by the
Company, and any and all Selling Expenses of a given Holder shall be borne by
such Holder.
5. Piggyback Registration
Rights.
(a) If
there is not an effective registration covering all of the Registrable
Securities and the Company shall determine to prepare and file with the
Commission a registration statement relating to an offering for its own account
or the account of others under the Securities Act of any of its equity
securities, other than pursuant to (i) a registration statement on Forms S-4 or
S-8 (each as promulgated under the Securities Act) or any successor or
substantially similar forms, (ii) a registration on any form that does not
permit secondary sales, or (iii) a registration statement relating to secondary
sales of any securities purchased from the Company in a private placement for
cash in which the registration rights agreement entered into by the Company in
connection therewith prohibits the inclusion of the Registrable Securities in
such registration statement (provided that the Company will use commercially
reasonable efforts not to restrict the Holders’ registration rights hereunder),
it will give written notice (a “ Registration Notice ”) to the
Holders of such intention and, if within ten (10) days of the Holders’ receipt
of such Registration Notice, the Holders provide the Company with a written
request to participate in such registration, then the Company, subject to
Section 5(b) below, will use its best efforts to include in such registration,
and in any underwriting involved therein, all of the Registrable Securities
included in such request (a “ Piggyback Registration ”).
Notwithstanding anything to the contrary contained herein, the Company shall
have no obligation to register Registrable Securities pursuant to this Section 5
to the extent that the sale of such securities is deemed to be a primary
underwritten offering by the Company.
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(b) Underwritten Offerings
.. (i) In the case of an underwritten offering by the Company of
securities, the Holders shall, with respect to Registrable Securities that the
Holders then desire to sell, enter into an underwriting agreement with the same
underwriters engaged by the Company with respect to securities being offered by
the Company, and the Company shall cause such underwriters to include in any
such underwriting all of the Registrable Securities that the Stockholder then
desires to sell, subject to paragraph (ii) below; provided, however , that such
underwriting agreement is in substantially the same form as the underwriting
agreement that the Company enters into in connection with the primary offering
it is making. If the Stockholder disapproves of the terms of any such
underwriting, the Stockholder may elect to withdraw therefrom by written notice
to the Company and the managing underwriter. Any Registrable Securities excluded
or withdrawn from such underwriting shall be withdrawn from such registration.
The Company shall not be required to include in such registration statement, the
Registrable Securities held by any Holder that does not accept and agree to the
terms of the underwriters selected by the Company, including the execution and
delivery of an underwriting agreement in the same form requested by such
underwriters for any other selling shareholders selling shares pursuant to such
registration statement.
(ii) If
the Company decides, based on the advice of the managing underwriter with
respect to such underwritten offering, that the number of Registrable Securities
to be offered by the Company, the Holders and all other selling security holders
be reduced because of market conditions or because the offering would be
materially and adversely affected, then the Company will so notify the Holders
in writing and such Registrable Securities shall be reduced pro rata by such
amount as the managing underwriter may determine. The number of shares of
securities that are entitled to be included in the registration and underwriting
shall be allocated first to the Company for securities being sold on its own
account and as required by any other registration rights agreement entered into
prior to the date hereof; second, to the extent available, the Registrable
Securities that the Holders have requested to be included therein; and third, to
the extent available, among any other selling security holders, as nearly as
possible pro rata based on the number of securities such selling security
holders have requested to be included therein.
6. Indemnification.
(a) Indemnification by the
Company. The Company shall, notwithstanding any termination
of this Agreement, indemnify and hold harmless each Holder, the officers,
directors, agents, brokers (including brokers who offer and sell Registrable
Securities as principal as a result of a pledge or any failure to perform under
a margin call of Common Stock), investment advisors and employees of each of
them, each Person who controls any such Holder (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) and the officers,
directors, agents and employees of each such controlling Person, to the fullest
extent permitted by applicable law, from and against any and all losses, claims,
damages, liabilities, costs (including, without limitation, costs of preparation
and attorneys’ fees) and expenses (collectively, “ Losses ”), as incurred,
arising out of or based upon any untrue or alleged untrue statement of a
material fact contained in the Registration Statement, any Prospectus or any
form of prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or based upon any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein (in the case of any Prospectus or form of prospectus or
supplement thereto), in the light of the circumstances under which they were
made, not misleading, except to the extent, but only to the extent, that such
untrue statements or omissions arise out of or are based upon information
regarding the Holders or such other Indemnified Party furnished in writing to
the Company by a Holder expressly for use therein, which information was
reasonably relied on by the Company for use therein or to the extent that such
information relates to a Holder or such Holder’s proposed method of distribution
of Registrable Securities and was reviewed and expressly approved in writing by
a Holder expressly for use in the Registration Statement, such Prospectus or
such form of Prospectus or in any amendment or supplement thereto. The Company
shall notify the Holders promptly of the institution, threat or assertion of any
Proceeding of which the Company is aware in connection with the transactions
contemplated by this Agreement.
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(b) Indemnification by Holders.
Each Holder shall, severally and not jointly, indemnify and hold
harmless the Company, the directors, officers, agents and employees, each Person
who controls the Company (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, agents or
employees of such controlling Persons, to the fullest extent permitted by
applicable law, from and against all Losses, as incurred, arising out of or
based upon any untrue or alleged untrue statement of a material fact contained
in the Registration Statement, any Prospectus, or any form of prospectus, or in
any amendment or supplement thereto or in any preliminary prospectus, or arising
out of or based upon any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein (in
the case of any Prospectus or form of prospectus or supplement thereto), in the
light of the circumstances under which they were made, not misleading, to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information so furnished in writing by such Holder or other
Indemnified Party to the Company expressly for use therein and that such
information was reasonably relied upon by the Company for use therein, or to the
extent that such information relates to such Holder or such Holder’s proposed
method of distribution of Registrable Securities and was reviewed and expressly
approved in writing by such Holder expressly for use in the Registration
Statement, such Prospectus or such form of Prospectus or any amendment or
supplement thereto. Notwithstanding anything to the contrary contained herein,
the Holders shall be liable under this Section 6(b) for only that amount as does
not exceed the net proceeds to such Holder as a result of the sale of
Registrable Securities pursuant to such Registration Statement.
(c) Conduct of Indemnification
Proceedings. If any Proceeding shall be brought or asserted
against any Person entitled to indemnity hereunder (an “ Indemnified Party ”), such
Indemnified Party promptly shall notify the Person from whom indemnity is sought
(the “ Indemnifying
Party ”) in writing, and the Indemnifying Party shall be entitled to
assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Indemnified Party and the payment of all fees and expenses
incurred in connection with defense thereof; provided, that the failure of any
Indemnified Party to give such notice shall not relieve the Indemnifying Party
of its obligations or liabilities pursuant to this Agreement, except (and only)
to the extent that it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal or further review)
that such failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
An
Indemnified Party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such Indemnified Party or Parties
unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
expenses; or (2) the Indemnifying Party shall have failed promptly to assume the
defense of such Proceeding and to employ counsel reasonably satisfactory to such
Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified Party
and the Indemnifying Party, and such parties shall have been advised by counsel
that a conflict of interest is likely to exist if the same counsel were to
represent such Indemnified Party and the Indemnifying Party (in which case, if
such Indemnified Party notifies the Indemnifying Party in writing that it elects
to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and
such counsel shall be at the expense of the Indemnifying Party). The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld or delayed. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, which consent shall not be unreasonably
withheld, effect any settlement of, or consent order with respect to, any
pending or threatened Proceeding in respect of which any Indemnified Party is a
party and indemnity has been sought hereunder.
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All
reasonable fees and expenses of the Indemnified Party (including reasonable fees
and expenses to the extent incurred in connection with investigating or
preparing to defend such Proceeding in a manner not inconsistent with this
Section) shall be paid to the Indemnified Party, as incurred, within ten (10)
Business Days of written notice thereof to the Indemnifying Party (regardless of
whether it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder;provided, that the Indemnified Party shall reimburse
all such fees and expenses to the extent it is finally judicially determined
that such Indemnified Party is not entitled to indemnification
hereunder).
(d) Contribution. If
indemnification under Section 6(a) or 6(b) is due but unavailable to an
Indemnified Party because of a failure or refusal of a governmental authority to
enforce such indemnification in accordance with its terms (by reason of public
policy or otherwise), then each Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and
theparties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 6(c), any reasonable attorneys’ or other
reasonable fees or expenses incurred by such party in connection with any
Proceeding to the extent such party would have been indemnified for such fees or
expenses if the indemnification provided for in this Section was available to
such party in accordance with its terms.
The
parties hereto agree that it would not be just and equitable if contribution
pursuant to this Section 6(d) were determined by pro rata allocation or by any
other method of allocation that does not take into account the equitable
considerations referred to in the immediately preceding paragraph. 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 misrepresentation.
The
indemnity and contribution agreements contained in this Section are in addition
to any liability that the Indemnifying Parties may have to the Indemnified
Parties pursuant to the law.
7. Rule 144.
As long
as any Holder owns Registrable Securities, the Company covenants to timely file
(or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof
pursuant to Section 13(a) or 15(d) of the Exchange Act. As long as any Holder
owns Registrable Securities, if the Company is not required to file reports
pursuant to Section 13(a) or 15(d) of the Exchange Act, it will prepare and
furnish to the Holders and make publicly available in accordance with Rule
144(c) promulgated under the Securities Act annual and quarterly financial
statements, together with a discussion and analysis of such financial statements
in form and substance substantially similar to those that would otherwise be
required to be included in reports required by Section 13(a) or 15(d) of the
Exchange Act, as well as any other information required thereby, in the time
period that such filings would have been required to have been made under the
Exchange Act. The Company further covenants that it will take such further
action as any Holder may reasonably request, all to the extent required from
time to time to enable such Person to sell Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rule 144 promulgated under the Securities Act, including providing
any legal opinions relating to such sale pursuant to Rule 144. Upon the request
of any Holder, the Company shall deliver to such Holder a written certification
of a duly authorized officer as to whether it has complied with such
requirements.
8
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8. Miscellaneous.
(a) No Inconsistent Agreements.
The Operating Agreement contains “lock-up” provisions which provide
that from the date hereof to the earlier of (x) the date on which the Company
consummates a transaction that results in all of its stockholders having the
right to exchange their shares of Common Stock for cash, securities or other
property, or (y) the first anniversary of the date of this Agreement, each
Investor agrees that it shall not Transfer (as such term is defined in the
Operating Agreement) any Registrable Securities it obtains, other than (a) to a
Permitted Transferee (as such term is defined in the Operating Agreement) (
provided that the
Permitted Transferee agrees, in writing, to be bound by the terms of Section
10.8 of the Operating Agreement), or (b) to the extent authorized by the Company
in writing prior thereto. Nothing contained herein shall be deemed to alter or
modify the obligations of such Holder under such Operating Agreement. Except for
the Operating Agreement, neither the Company nor any of its subsidiaries has, as
of the date hereof entered into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers.
The provisions of this Agreement, including the provisions of this
sentence, may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, unless the same shall
be in writing and signed by the Company and the Holders of at least a majority
of the Registrable Securities to which such waiver or consent
relates.
(c) Notices. Any and
all notices or other communications or deliveries required or permitted to be
provided hereunder shall be in writing and shall be deemed given and effective
on the earlier of (i) the date of transmission, if such notice or communication
is delivered via facsimile at the facsimile telephone number specified for
notice prior to 5:00 p.m., New York City time, on a Business Day, (ii) the
Business Day after the date of transmission, if such notice or communication is
delivered via facsimile at the facsimile telephone number specified for notice
later than 5:00 p.m., New York City time, on any date and earlier than 11:59
p.m., New York City time, on such date, (iii) the Business Day following the
date of mailing, if sent by overnight delivery by nationally recognized
overnight courier service or (iv) actual receipt by the party to whom such
notice is required to be given. The addresses for such communications shall be
with respect to each Holder at its address set forth in the stock register, or
with respect to the Company, addressed to:
0000
Xxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Attention:
Xxxxxx XxXxxxxx
Facsimile:
(000) 000-0000
or to
such other address or addresses or facsimile number or numbers as any such party
may most recently have designated in writing to the other parties hereto by such
notice. Copies of notices to the Company shall be sent to Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C., 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxxx X. Xxxx, Esq., Facsimile: (000) 000-0000.
(d) Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties and their successors and permitted assigns.
(e) Assignment.
Neither this Agreement nor any of the rights, duties, or obligations
of any party hereunder may be assigned or delegated (by operation of law or
otherwise) by either party hereto except with the prior written consent of the
other party hereto; provided,
however , that a Holder may assign or delegate its rights, duties and
obligations hereunder to any transferee of such Holder’s Registrable Securities
who agrees in writing to become bound by the terms and conditions of this
Agreement, so long as such assignment or delegation is not in violation of the
Contribution Agreement, Operating Agreement or any applicable law or
regulation.
(f) Counterparts.
This Agreement may be executed in any number of counterparts, each
of which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement. In the event that
any signature is delivered by facsimile transmission, such signature shall
create a valid binding obligation of the party executing (or on whose behalf
such signature is executed) the same with the same force and effect as if such
facsimile signature were the original thereof.
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(g) Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to principles of conflicts of
law thereof.
(h) Cumulative Remedies.
The remedies provided herein are cumulative and not exclusive of any
remedies provided by law.
(i) Severability. If
any term, provision, covenant or restriction of this Agreement is held to be
invalid, illegal, void or unenforceable in any respect, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declaredto be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
(j) Headings. The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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TABLE OF
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IN
WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed by their respective authorized persons as of the
date first indicated above.
| SECURE AMERICA ACQUISITION CORPORATION | |||
|
By:
|
/s/
C. Xxxxxx XxXxxxxx
|
||
|
Name:
|
C.
Xxxxxx XxXxxxxx
|
||
|
Title:
|
Co-Chief
Executive
Officer
|
||
|
ULTIMATE
RESORT HOLDINGS, LLC
|
||
|
By:
|
/s/ Xxxxx X. Xxxxxxxxxx
|
|
|
Name: /s/
Xxxxx X. Xxxxxxxxxx
|
||
|
Title: Chief
Executive Officer
|
||
|
PRIVATE
ESCAPES HOLDINGS, LLC
|
||
|
By:
|
/s/ Xxxxxxx Xxxxx
|
|
|
Name: Xxxxxxx
Xxxxx
|
||
|
Title:
Managing Member,
|
||
|
Chief Executive Officer
|
||
|
/s/ Xxxxx X. Xxxxxxxxxx
|
||
|
Xxxxx
X. Xxxxxxxxxx
|
||
|
/s/ Xxxxxxx Xxxxx
|
||
|
Xxxxxxx
Xxxxx
|
||
|
/s/ Xxxxxxx Xxxxxxxxx
|
||
|
Xxxxxxx
Xxxxxxxxx
|
||
|
/s/ Xxxxx Xxxxx
|
||
|
Xxxxx
Xxxxx
|
||
|
/s/ Xx Xxxxxx
|
||
|
Xx
Xxxxxx
|
||
|
/s/ Xxxxx Xxxxxxxx
|
||
|
Xxxxx
Xxxxxxxx
|
||
|
/s/ Xxxxxx X’Xxxxxxxx
|
||
|
Xxxxxx
X’Xxxxxxxx
|
||
|
/s/ Xxxxx Xxxxxxxx
|
||
|
Xxxxx
Xxxxxxxx
|
11
Schedule
A
Schedule
of Investors
Ultimate
Resort Holdings, LLC
Private
Escapes Holdings, LLC
Xxxxx X.
Xxxxxxxxxx
Xxxxxxx
Xxxxx
Xxxxxxx
Xxxxxxxxx
Xxxxx
Xxxxx
Xx
Xxxxxx
Xxxxx
Xxxxxxxx
Xxxxxx
X’Xxxxxxxx
Xxxxx
Xxxxxxxx
12
