1
Exhibit 10.14
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), is made and entered
into as of August 13, 1999, by and among DYNACS ENGINEERING COMPANY, INC., a
Florida corporation (the "Corporation"), and those stockholders whose names
appear on the signature page to this Agreement (collectively referred to in this
Agreement as the "Stockholders" and each as a "Stockholder").
RECITALS
A. The Corporation and the Stockholders are parties to that certain
Contribution and Exchange Agreement, dated as of August 12, 1999 (the
"Contribution Agreement"), which agreement provides for, among other things, the
issuance by Cerulean FXs, Inc., a Florida corporation ("FX") of shares of its
common stock, par value $0.01 per share (the "FX Common Stock") to the
Corporation and each of the Stockholders in exchange for the contribution by the
Corporation and each of the Stockholders of their limited liability company
interests in Cerulean Colorization, L.L.C., a Delaware limited liability
company.
B. Concurrent with the execution and delivery of this Agreement, the
Corporation and the Stockholders are entering into that certain Exchange
Agreement (the "Exchange Agreement"), which agreement grants to the Stockholders
the right to exchange their shares of FX Common Stock for shares of common
stock, par value $.001 per share, of the Corporation (the "Common Stock") upon
the occurrence of certain events.
C. In connection with the transactions contemplated by the Contribution
Agreement and the Exchange Agreement, the parties to this Agreement have agreed
that the Corporation will provide to each of the Stockholders certain
registration rights, as set forth in this Agreement. The execution and delivery
of this Agreement by each of the parties to this Agreement are conditions
precedent to the closing of the Contribution Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of foregoing premises and of the mutual
covenants and agreements contained in this Agreement, on the terms and subject
to the conditions set forth in this Agreement, the parties to this Agreement
agree as follows:
1. Definitions.
(a) Definitions. Capitalized terms used in this Agreement and not
defined in this Agreement shall have the meanings given those terms in the
Exchange Agreement. Otherwise, the following terms have the following meanings,
unless the context otherwise requires:
"Commission" means the Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
2
"Existing Stockholders" means Ramen Singh, Xxxxx Xxxxxx, Xxxxxx
Xxxxxxx, Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxxxxxxxxx, Xxxxx Xxxxxxxx, Xxxx
Xxxxxxxxx and Xxxxxx Xxxxxxxxx.
"Other Holder" shall have the meaning given such term in Section 2
of this Agreement.
"Person" means any individual, corporation, partnership, firm, joint
venture, association, joint-stock company, trust, incorporated
organization or other entity.
"Prospective Seller" shall have the meaning given such term in
Section 4(a) of this Agreement.
"Registrable Stock" means (a) any and all Securities acquired or to
be acquired by any of the Stockholders under and pursuant to the
Contribution Agreement and the Exchange Agreement, and any and all
Securities issued under this clause (a) acquired by a Stockholder from any
other Stockholder; (b) any Securities issued or issuable with respect to
the securities described in clause (a) above by reason of a share dividend
or share split or similar transaction, or in connection with a combination
of shares, recapitalization, merger, consolidation, other reorganization
or other transaction, and (c) any other Securities now held or acquired
after the date of this Agreement by Persons holding the Securities
described in clauses (a) or (b) above. As to any particular Registrable
Stock, such securities shall cease to be Registrable Stock when (w) a
registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (x)
such securities shall have been sold as permitted by Rule 144 or Rule 144A
(or any successor provisions) promulgated under the Securities Act, (y)
such securities shall have been otherwise transferred, new certificates
for them not bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent public distribution of them shall
not require registration under the Securities Act, or (z) such securities
are eligible for sale pursuant to Rule 144 promulgated under the
Securities Act without limitation as to the amount of securities to be
sold.
The terms "register", "registered" and "registration" each refer to
a registration of securities effected by preparing and filing a
Registration Statement as to the securities in compliance with the
Securities Act, and the subsequent effectiveness of the Registration
Statement.
"Registration Statement" means a registration statement filed by the
Corporation with the Commission under the Securities Act (other than a
registration statement on Form S-4 or S-8 or any successor or similar
forms, or a registration statement on any form filed in connection with an
exchange offer or an offering of securities solely to the Company's
existing shareholders).
"Securities" means any equity securities of the Corporation. Any
beneficial interests in the Securities are referred to in this Agreement
as "shares" of the Securities.
2
3
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Registration" means any registration of shares of any
Securities of any class of the Corporation, whether for its own account or
the account of another, effected pursuant to a Registration Statement.
(b) Rules of Construction. The following rules of construction shall
apply in interpreting this Agreement:
(i) A Person shall be deemed to be a holder of Registrable Stock
when such Person has, or will have on or prior to the date any Securities
are registered, an exercisable right to acquire Registrable Stock. Each
share of Registrable Stock shall continue to be Registrable Stock in the
hands of each subsequent holder of the Registrable Stock; and for purposes
of this Agreement, the term "Stockholders" shall be deemed to include each
subsequent holder of Registrable Stock, and each of these holders shall
have the right to exercise any and all rights granted under this Agreement
to the Stockholders.
(ii) This Agreement has been entered into concurrently with the
execution of the Exchange Agreement and the Contribution Agreement, and,
unless the context otherwise clearly requires, this Agreement shall be
construed in a manner consistent with the provisions of the Exchange
Agreement and the Contribution Agreement.
2. Registration. If the Corporation at any time proposes to register any
securities pursuant to a Securities Registration, it shall each time give
written notice of the proposed Securities Registration (the "Corporation's
Notice"), at its expense, to each of the Stockholders and to all other holders
of securities of the Corporation who have the contractual right to include all
or any portion of their shares in the registration on a "piggyback" basis (the
"Other Holders") at least 15 days prior to the filing of a Registration
Statement with respect to the Securities Registration with the Commission. Upon
written request of any of the Stockholders (each, a "Stockholder's Notice") or
Other Holder (a "Holder's Notice") given within 15 days after receipt of the
Corporation's Notice, stating the number of shares of Registrable Stock to be
disposed of by the Stockholder delivering the Stockholder's Notice, or the
number of shares of Securities to be disposed of by the Other Holder delivering
the Holder's Notice, the Corporation shall use its best efforts to cause all
shares of Registrable Stock specified in each Stockholder's Notice, or shares of
Securities specified in each Holder's Notice, to be registered under the
Securities Act so as to permit the sale or other disposition (in accordance with
the intended methods as set forth in the Corporation's Notice) of the shares,
subject, however, to the limitations set forth in Section 3 of this Agreement;
provided, however, that the Corporation shall have the right in its sole and
absolute discretion to elect not to file, postpone or withdraw any registration
effected pursuant to this Section 2 without obligation to the Stockholders or
Other Holders except as provided in this Section 2; and provided, further, that
the Stockholders' and Other Holders' rights to include all or any portion of
their shares in an underwritten offering shall be subject to the right of the
managing underwriters in the offering to exclude such shares as provided in
Section 3 of this Agreement.
3
4
3. Limitations on Securities Registration
(a) Underwritten Offerings. If any Securities Registration is for an
underwritten offering, only securities of the class and series which are to be
included in the underwriting may be included in the registration, the issuance
and sale of securities by the Corporation shall have priority as to sales to and
by the underwriters in the registration, and the Stockholders hereby agree that
they shall withdraw their securities from the registration if and to the extent
requested to do so in good faith by the managing underwriters of the offering to
facilitate the complete sale of the securities being registered. In connection
with an underwritten offering, the Corporation shall not be required to include
any Registrable Stock in such offering unless the Stockholders accept the terms
of the underwriting as agreed upon between the Corporation and the underwriters
selected by the Corporation and execute an underwriting agreement reflecting
such terms (provided that such terms are consistent with this Agreement), and
then only in such quantity as will not, in the good faith opinion of the
managing underwriter, jeopardize the success of the offering by the Corporation.
(b) Scale-Back Procedures. Whenever the number of shares which may
be registered pursuant to Section 2 of this Agreement is limited by the
provisions of Section 3(a), above, the Corporation will include in the
registration (i) first, the securities the Corporation proposes to sell, and
(ii) second, the securities requested to be sold pro rata among the Stockholders
and all Other Holders, allocated on the basis of the number of shares owned by
each; provided, that if any Stockholder or Other Holder would thus be entitled
to include more shares than the Stockholder or Other Holder requested to be
registered, the excess will be allocated to the other Stockholders and Other
Holders, until the full amount of shares requested by any Stockholder or Other
Holder has been registered for sale. The Corporation shall use its best efforts
to cause any other affected holders to withdraw from the registration to the
extent necessary to comply with the foregoing priority provisions.
4. Registration Procedures.
(a) Obligations of the Corporation. If and whenever the Corporation
is required by the provisions of this Agreement to use its best efforts to
effect the registration of shares (as used in this Section 4, the "Shares") of
Registrable Stock held by any Person (each, a "Prospective Seller") under the
Securities Act, the Corporation shall:
(i) prepare and file with the Commission a Registration Statement
with respect to the Shares and use its best efforts to cause the
Registration Statement to become and remain effective as provided in this
Agreement;
(ii) prepare and file with the Commission any amendments and
supplements to the Registration Statement and the prospectuses used in
connection with the Registration Statement as may be necessary to keep the
Registration Statement effective and current, in the case of a firm
commitment underwritten public offering, until each underwriter has
completed the distribution of all securities purchased by it and, in the
case of any other offering, until the earlier of the sale of all Shares
covered thereby or 90 days after the effective date of the Registration
Statement, and to comply with the provisions of the Securities Act
4
5
with respect to the sale or other disposition of all Shares covered by the
Registration Statement
(iii) furnish to each Prospective Seller the number of copies of
each prospectus, including preliminary prospectuses, in conformity with
the requirements of the Securities Act, and all other documents, as the
Prospective Seller may reasonably request in order to facilitate the
public sale or other disposition of the Shares owned by the Prospective
Seller;
(iv) use its best efforts to register or qualify the Shares covered
by the Registration Statement under the other securities or blue sky or
other applicable laws of the jurisdictions as each Prospective Seller
shall reasonably request, to enable each Prospective Seller to consummate
the sale or other disposition of the Shares owned by the Prospective
Seller;
(v) furnish to each Prospective Seller a signed counterpart,
addressed to the Prospective Seller and his or its underwriters, if any,
of
(A) an opinion of counsel for the Corporation, dated the effective
date of the Registration Statement and, if requested, the date of each
closing of sales pursuant to the registration, with respect to the
effective registration of such Shares; and
(B) if and to the extent then available under FASB and related
pronouncements, a "comfort" letter signed by the independent public
accountants who have certified the Corporation's financial statements
included in the Registration Statement, similarly dated;
covering substantially the same matters with respect to the Registration
Statement (and the prospectuses included in the Registration Statement)
and (in the case of the accountants' letter) with respect to the events
subsequent to the date of the financial statements, as are customarily
covered (at the time of the registration) in the opinions of issuers'
counsel and in accountants' letters delivered to the underwriters in
connection with underwritten public offerings of securities;
(vi) cause all Shares to be listed on each securities exchange on
which similar securities issued by the Corporation are then listed;
(vii) provide a transfer agent and registrar for all Shares not
later than the effective date of the Registration Statement;
(viii) enter into all customary agreements (including an
underwriting agreement in customary form) and take all customary actions
as the Member Representative may reasonably request in order to expedite
or facilitate the disposition of the Shares;
(ix) use its best efforts to cause the Corporation's officers,
directors and employees to supply all information reasonably requested in
connection with the registration
5
6
by any Prospective Seller, any underwriter participating in any
disposition pursuant to the Registration Statement, and any attorney,
accountant or other agent retained by any Prospective Seller or
underwriter, including, without limitation, all financial and other
records, pertinent corporate documents and properties of the Corporation;
(x) notify each Prospective Seller at any time when a prospectus
relating to Shares covered by the Registration Statement is effective, of
the happening of any event as a result of which the prospectus included in
the 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 light of the circumstances then existing. The Corporation
shall use its reasonable efforts promptly to amend or supplement the
Registration Statement to correct any such untrue statement or omission;
and
(xi) notify each Prospective Seller of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Corporation will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible time.
(b) Obligations of the Prospective Sellers. In connection with the
registration of Shares held by a Prospective Seller, the Prospective Seller
shall:
(i) furnish to the Corporation all information the Corporation
may reasonably require from the Prospective Seller for inclusion in the
Registration Statement (and the prospectus included in the Registration
Statement); and
(ii) upon notification by the Corporation of a state of facts
described in Section 4(a)(x) or of a stop order referenced in Section 4(a)(xi),
cease making sales of Shares unless and until the Corporation shall notify the
Prospective Seller that the state of facts has been corrected and/or the stop
order has been lifted.
5. Expenses of Registration. All expenses incurred in effecting any
registration under this Agreement, including, without limitation, all
registration and filing fees, printing expenses, expenses of compliance with
blue sky laws, fees and disbursements of counsel for the Corporation, fees and
disbursements of counsel for the Prospective Sellers (but not more than one
counsel representing all of the Stockholders who are Prospective Sellers), and
expenses of any audits incidental to or required by any registration
("Registration Expenses") shall be borne by the Corporation; provided, that all
underwriting discounts or brokerage fees or commissions relating to the sale of
the securities included in the registration shall be separately borne by the
sellers of the securities.
6. Indemnification
(a) Indemnity. In the event of any registration of any of its
securities under the Securities Act pursuant to this Agreement, the Corporation
shall indemnify and hold harmless each
6
7
Prospective Seller, each underwriter (as defined in the Securities Act) and each
controlling person (within the meaning of the Securities Act), if any, of any
Prospective Seller or underwriter (collectively, "Indemnified Parties" or an
"Indemnified Party"), against any losses, claims, damages or liabilities, joint
or several (or actions in respect thereof), to which the Indemnified Parties may
be subject under the Securities Act or any other statute or at common law,
insofar as the losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement (or alleged
untrue statement) of any material fact contained in any Registration Statement
under which the securities were registered under the Securities Act, any
preliminary prospectus or final prospectus contained in the Registration
Statement, or any summary prospectus issued in connection with any securities
being registered, or any amendment or supplement thereto, or any other document
used to sell the securities, or (ii) any omission (or alleged omission) to state
in any Registration Statement under which the securities were registered under
the Securities Act, any preliminary prospectus or final prospectus contained in
the Registration Statement, or any summary prospectus issued in connection with
any securities being registered, or any amendment or supplement thereto, or any
other document or any other document used to sell the securities, a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or (iii) any violation of the Securities Act or any Blue Sky
law, or any rule or regulation promulgated under the Securities Act or any Blue
Sky law, or any other law, in connection with any registration, qualification or
compliance, and shall reimburse the Indemnified Parties for any legal or other
expenses incurred by the Indemnified Parties in connection with investigating or
defending any loss, claim, damage, liability or action described above;
provided, however, that the Corporation shall not be liable to any Indemnified
Party (i) to the extent that any loss, claim, damage or liability arises out of
or is based upon any untrue statement or omission made in the Registration
Statement, preliminary prospectus, summary prospectus, prospectus, or amendment
or supplement thereto, or any other document used to sell the securities, in
reliance upon and in conformity with information furnished to the Corporation by
that Indemnified Party, or party controlling or controlled by that Indemnified
Party within the meaning of the Securities Act specifically for use in the
registration, or (ii) to the extent that any such loss, claim, damage, or
liability does not arise out of or is not based upon any untrue statement or
omission made in such Registration Statement, if any Indemnified Person who
participates as an underwriter in the offering, or who controls an underwriter
in the offering, failed to give or send a final prospectus at or prior to
written confirmation of sale. The indemnity provided for in this Section 6(a)
shall remain in full force and effect regardless of any investigation made by or
on behalf of any Indemnified Party and shall survive transfer of the securities
by the Indemnified Party.
(b) Prospective Sellers. In the event of any registration of any of
the Corporation's securities under the Securities Act in which a Prospective
Seller participates pursuant to this Agreement, each participating Prospective
Seller agrees to indemnify and hold harmless the Corporation, its directors,
each underwriter (as defined in the Securities Act) and each controlling person
(within the meaning of the Securities Act) of the Corporation or underwriter, if
any, against any losses, claims, damages or liabilities, joint or several (or
actions in respect thereof), to which the Corporation, director, underwriter or
controlling person may be subject under the Securities Act, under any other
statute or at common law, insofar as the losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement (or alleged untrue statement) of any material fact contained in any
Registration Statement under which the securities were registered under the
Securities Act, any preliminary prospectus or final prospectus contained
7
8
in the Registration Statement, or any summary prospectus issued in connection
with any securities being registered, or any amendment or supplement thereto, or
any other document used to sell the securities, or any omission (or alleged
omission) to state in the Registration Statement, any preliminary prospectus or
final prospectus contained in the Registration Statement, or any summary
prospectus issued in connection with any securities being registered, or any
amendment or supplement thereto, or any other document or any other document
used to sell the securities, a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse the
Corporation, its directors, each underwriter, and each controlling person, for
any legal or other expenses reasonably incurred by these persons in connection
with investigating or defending any loss, claim, damage, liability or action; in
each case, to the extent, and only to the extent, that the untrue statement or
omission is contained in any information or affidavit furnished in writing to
the Corporation by the Prospective Seller specifically for use in the
registration. The indemnity provided for in this Section 6(b) shall survive
transfer of the securities by the Prospective Seller.
(c) Contribution. If the indemnification provided for in Section
6(a) or (b) is unavailable to an indemnified party in accordance with its terms
in respect of any losses, claims, damages or liabilities referred to in Section
6(a) or (b), then the indemnitor in lieu of indemnifying the indemnified party
under Section 6(a) or (b) shall contribute to the amount paid or payable by the
indemnified party as a result of the losses, claims, damages or liabilities, in
such proportion as is appropriate to reflect the relative fault of the
indemnitor on the one hand and of the indemnified parties on the other in
connection with the statements or omissions which resulted in the losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the indemnitor and of the indemnified
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnitor, or the
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent the statement or omission.
The Corporation and the other parties to this Agreement agree
that it would not be just and equitable if contribution pursuant to this Section
6(c) were determined by a mechanical pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by any indemnified party as a result of the losses, claims, damages and
liabilities or actions in respect thereof referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the indemnified
party in connection with investigating or defending the action or claim.
Notwithstanding the provisions of this Section 6(c), no holder of Registrable
Stock, no underwriter of Registrable Stock, and no controlling party of any of
them, shall be required to contribute any amount in excess of the amount by
which the total price at which the Registrable Stock was sold exceeds the amount
of any damages which the Person has otherwise been required to pay and has
actually paid by reason of the untrue or alleged untrue statement or omission or
alleged omission. No person guilty of a 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 the fraudulent
misrepresentation.
(d) Procedures. Promptly after receipt by any Indemnified Party of a
complaint, claim or other written notice of any loss, claim, damage, liability
or action arising rise to a claim for
8
9
indemnification under this Section 6, the party claiming indemnification under
this Section 6 shall notify the indemnifying party of the complaint, notice,
claim or action, and the indemnifying party shall have the right to investigate
and defend the loss, claim, damage, liability or action; provided, that the
failure of the Indemnified Party to promptly notify the indemnifying party shall
not relieve the indemnifying party from any liability which it may have to the
Indemnified Party otherwise than under Section 6, or under Section 6 to the
extent that the indemnifying party has not been materially prejudiced as a
proximate result of the failure to provide notice. The Indemnified Party shall
have the right to employ separate counsel in the action and to participate in
the defense of the action, but the fees and expenses of the counsel shall not be
at the expense of the indemnifying party. If the defendants in any action shall
include more that one Indemnified Party, and any of these Indemnified Parties
shall reasonably conclude that counsel selected by the Corporation has a
conflict of interest which under the Rules of Professional Conduct of the
Florida State Bar Association (or other body regulating the practice of law in
the State of Florida) would prohibit the representation because of the
availability of different or additional defenses to any of the Indemnified
Parties, the Indemnified Party shall have the right to select separate counsel
reasonably acceptable to the Corporation to participate in the defense of the
claim on its behalf at the expense of the indemnifying party who would otherwise
be liable for the losses under this Section 6, it being understood, however,
that the indemnifying party shall not, in connection with any one action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys at any time for the Indemnified Parties; provided, however,
that if the parties shall not agree that a conflict of interest between the
Indemnified Parties exists, then the parties shall submit the issue to the State
Bar Association of Florida to determine whether a conflict of interest exists,
and the determination of the State Bar Association of Florida shall be binding
on the parties. The Indemnified Parties shall cooperate fully in the defense of
any claim under this Section 6 and each Indemnified Party shall make available
to the Corporation pertinent information under the Indemnified Party's control
relating to the claim. In no event shall the indemnifying party be obligated to
indemnify any party for any settlement of any claim or action effected without
the indemnifying party's consent.
7. Rights Which May Be Granted to Other Persons. The Corporation shall not
grant any Person registration rights with priority as to registration or sale to
underwriters which are greater than or pari passu to the registration rights
granted to the Stockholders in this Agreement; provided that the Company may
grant registration rights to the Existing Stockholders, or any of them, with
respect to the shares of Common Stock owned by them on the date of this
Agreement, which are pari passu to the registration rights granted to the
Stockholders in this Agreement.
8. Rule 144 Requirements. At all times after the close of business on the
earliest of the date (a) a Registration Statement filed by the Corporation under
the Securities Act becomes effective, (b) the Corporation registers a class of
securities under Section 12 of the Securities Exchange Act of 1934, as amended,
or (c) the Corporation issues an offering circular meeting the requirements of
Regulation A under the Securities Act, the Corporation shall undertake to make
publicly available, and available to the Stockholders, the information that is
necessary to enable the Stockholders to make sales of Registrable Stock pursuant
to Rule 144 of the Commission under the Securities Act. The Corporation shall
from time to time furnish to each of the Stockholders, upon request, a written
9
10
statement executed by the Corporation as to the steps it has taken to comply
with the current public information requirements of Rule 144.
9. Hold-Back Agreements.
(a) By Xxxxxxx Xxxxx. Xxxxxxx Xxxxx, a Stockholder, agrees not to
effect any public sale or distribution of Securities, or securities convertible
into or exchangeable or exercisable for Securities, during the seven days prior
to and the period of 180 days. or a longer period (which shall not, in any
event, exceed 270 days) as may be requested by the underwriters, beginning on
the effective date of any Securities Registration which includes a firmly
underwritten offering, except, in each case, as part of the underwritten
offering.
(b) By Corporation and Other Stockholders. The Corporation agrees
(i) not to effect the public sale or distribution of Securities, or of any
securities convertible into or exchangeable or exercisable for any Securities,
during the seven days prior to and the period of 180 days, or a longer period
(which shall not, in any event, exceed 270 days) as may be requested by the
underwriters, beginning on the effective date of any Securities Registration
which includes a firmly underwritten offering, and (ii) to use its best efforts
to cause each holder of Securities, or of any securities convertible into or
exchangeable or exercisable for Securities purchased from the Corporation at any
time on or after the date of this Agreement (other than in a registered public
offering) and who is an officer or director of the Corporation, or owns more
than 5% of any class of its then outstanding Securities, to agree not to effect
any public sale or distribution of any Securities during this period, except as
part of the underwritten offering.
10. Miscellaneous.
(a) Notices. All notices, demands or other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered in person, or by United States mail, certified or registered, return
receipt requested or otherwise actually delivered:
(i) if to any of the Stockholders, at the address set forth for the
Stockholder on the Corporation's records; and
(ii) if to the Corporation, at the address of the Corporation as set
forth in the Contribution Agreement, marked for attention as therein
indicated;
or such other address as may have been furnished by the Person in writing to the
other parties. Any notice, demand or other communication shall be deemed to have
been given on the date actually delivered or as of the date mailed, as the case
may be.
(b) Severability and Governing Law. Should any Section or any part
of a Section within this Agreement be rendered void, invalid or unenforceable by
any court of law for any reason, the invalidity or unenforceability shall not
void or render invalid or unenforceable any other Section or part of a Section
in this Agreement. This Agreement shall be governed and construed in accordance
with the laws of the State of California applicable to contracts made and to be
performed entirely within the State of California, without regard to principles
of conflicts of law.
10
11
(c) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(d) No Adverse Construction. The rule that a contract is to be
construed against the party drafting the contract is hereby waived, and shall
have no applicability in construing this Agreement or the terms of this
Agreement.
(e) Captions and Section Headings. Section titles or captions
contained in this Agreement are inserted as a matter of convenience and for
reference purposes only, and in no way define, limit, extend or describe the
scope of this Agreement or the intent of any provision hereof.
(f) Amendments and Waivers. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by all the parties to this
Agreement or, in the case of a waiver, by the party or parties, as the case may
be, waiving compliance. No delay on the part of any party in exercising any
right, power or privilege under this Agreement shall operate as a waiver
thereof, nor shall any waiver on the part of any party of any right, power or
privilege under this Agreement, nor any single or partial exercise of any right,
power or privilege under this Agreement, preclude any other or further exercise
thereof or the exercise of any other right, power or privilege under this
Agreement.
(g) Costs and Attorneys' Fees. In the event that any action, suit or
other proceeding is instituted concerning or arising out of this Agreement, the
prevailing party shall be entitled to recover all of the prevailing party's
costs and reasonable attorneys' fees incurred in each and every such action,
suit, or other proceedings, including any and all appeals or petitions
therefrom.
(h) Successors and Assigns. Except as otherwise provided in this
Agreement, all rights, covenants and agreements of the parties contained in this
Agreement shall be binding upon and inure to the benefit of their respective
successors and permitted assigns.
(i) Specific Performance. The parties hereto agree that the
securities of the Corporation cannot be purchased or sold in the open market and
that, for these reasons, among others, the parties will be irreparably damaged
in the event that this Agreement is not specifically enforceable. Accordingly,
in the event of any controversy concerning the securities which are the subject
of this Agreement, or any right or obligation to register the securities, such
right or obligation shall be enforceable in a court of equity by specific
performance. The rights granted in this Section 10(i) shall be cumulative and
not exclusive, and shall be in addition to any and all other rights which the
parties to this Agreement may have under this Agreement, at law or in equity.
(j) Entire Agreement. This Agreement, the Contribution Agreement,
and the other agreements delivered in connection with the Contribution
Agreement, collectively contain the entire understanding of the parties, and
there are no further or other agreements or understandings, written or oral, in
effect between the parties relating to the subject matter of this Agreement
unless expressly referred to in this Agreement.
11
12
(k) Agreement to Perform Required Acts. Each party to this Agreement
agrees to perform any further acts and to execute and deliver any further
documents that may be reasonably necessary to carry out the provisions of this
Agreement, that may be required to secure performance of any party's duties
under this Agreement or that may be required to assure the legal and binding
effect of the provisions of this Agreement.
12
13
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
DYNACS ENGINEERING COMPANY, INC.,
a Florida Corporation
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Xx. Xxxxxxxx X. Xxxxx
Its: President
STOCKHOLDERS:
________________________________________
Xxxxxxx Xxxxx
________________________________________
Xxxxxxx Dallas
________________________________________
Xxx Xxxxxxxxxx
OFFENSE GROUP ASSOCIATES, LP
By: Kaim NT, LP
Its: General Partner
By:_____________________________________
Its:____________________________________
13
14
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
DYNACS ENGINEERING COMPANY, INC.,
a Florida Corporation
By:_____________________________________
Xx. Xxxxxxxx X. Xxxxx
Its: President
STOCKHOLDERS:
/s/ Xxxxxxx Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
________________________________________
Xxxxxxx Dallas
________________________________________
Xxx Xxxxxxxxxx
OFFENSE GROUP ASSOCIATES, LP
By: Kaim NT, LP
Its: General Partner
By:_____________________________________
Its:____________________________________
13
15
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
DYNACS ENGINEERING COMPANY, INC.,
a Florida Corporation
By:_____________________________________
Xx. Xxxxxxxx X. Xxxxx
Its: President
STOCKHOLDERS:
________________________________________
Xxxxxxx Xxxxx
/s/ Xxxxxxx Dallas
----------------------------------------
Xxxxxxx Dallas
________________________________________
Xxx Xxxxxxxxxx
OFFENSE GROUP ASSOCIATES, LP
By: Kaim NT, LP
Its: General Partner
By:_____________________________________
Its:____________________________________
13
16
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
DYNACS ENGINEERING COMPANY, INC.,
a Florida Corporation
By:_____________________________________
Xx. Xxxxxxxx X. Xxxxx
Its: President
STOCKHOLDERS:
________________________________________
Xxxxxxx Xxxxx
________________________________________
Xxxxxxx Dallas
/s/ Xxx Felthiemer
----------------------------------------
Xxx Xxxxxxxxxx
OFFENSE GROUP ASSOCIATES, LP
By: Kaim NT, LP
Its: General Partner
By:_____________________________________
Its:____________________________________
13
17
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
DYNACS ENGINEERING COMPANY, INC.,
a Florida Corporation
By:_____________________________________
Xx. Xxxxxxxx X. Xxxxx
Its: President
STOCKHOLDERS:
________________________________________
Xxxxxxx Xxxxx
________________________________________
Xxxxxxx Dallas
/s/ Xxx Felthiemer
----------------------------------------
Xxx Xxxxxxxxxx
OFFENSE GROUP ASSOCIATES, LP
By: Kaim NT, LP
Its: General Partner
By: /s/
-------------------------------------
Its:____________________________________
13
