EXHIBIT 10.23
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
December 18, 2003 (this "Agreement"), is entered into by and between EMPIRE
FINANCIAL HOLDING COMPANY, a Florida corporation (the "Company"), and SHEPHERD
LARGE CAP GROWTH FUND (the "Holder"), the beneficial owner of shares of common
stock, $.01 par value, of the Company (the "Common Stock").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Holder has purchased 200,000 shares of Common Stock
(collectively, "Registrable Securities") from the Company; and
WHEREAS, the Company has agreed to grant to the Holder certain
registration rights with respect to the Registrable Securities, if the Company,
in its sole discretion, files a registration statement pursuant to the
Securities Act of 1933, as amended (the "Securities Act").
NOW, THEREFORE, in consideration of the mutual representations,
covenants and agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
For purposes of this Agreement, the following definitions shall apply:
(a) "Business Day" shall mean any day on which commercial banks are not
authorized or required to close in Orlando, Florida.
(b) The terms "register" and "registration" refer to registration under
the Securities Act, effected by preparing and filing a registration statement in
compliance with the Securities Act, the declaration or ordering of effectiveness
of such registration statement and the continuous effectiveness of such
registration statement (without the issuance of any stop order or injunction
that prohibits the sale of the Registrable Securities included in such
registrations statement) until the earlier of (i) the date that all Registrable
Securities included in such registration statement have been sold or (ii) 90
days after the date of such declaration or order of effectiveness.
SECTION 2. REGISTRATION RIGHTS.
(a) If the Company at any time prior to the expiration of one year from
the date hereof proposes to register any of its equity securities under the
Securities Act (by reason of registration rights granted to any person or
otherwise) on any form other than Form S-4 or Form S-8 (or any similar form then
in effect), whether or not for sale for its own account, and if the registration
form proposed to be used may be used for the registration of the Registrable
Securities, the Company will in each such case give prompt written notice (and
in any event at least 20 days' prior written notice prior to effectiveness of
such registration statement) to the Holder of its intention to do so, such
notice to specify the securities to be registered, the proposed amounts thereof
and the date not less than 15 days thereafter by which the Company must receive
the Holder's written indication of whether it will include any Registrable
Securities owned by the Holder in such registration statement and advising the
Holder of its
Company:________ Holder:________
rights under this Section. Upon the written request of the Holder made on or
before the date specified in such notice (which request shall specify the number
of shares of Registrable Securities intended to be disposed of by the Holder),
the Company will use its commercially reasonable efforts to cause all such
Registrable Securities which the Holder shall have so requested the registration
thereof, to be registered under the Securities Act (with the securities that the
Company at the time proposes to register), to the extent requisite to permit the
sale or other disposition (in accordance with the intended methods thereof as
aforesaid) by the Holder. Notwithstanding anything to the contrary in this
Agreement, the Company shall have the right to discontinue any registration
under this Agreement at any time prior to the effective date of such
registration.
(b) The Company may suspend the effectiveness of any such registration
statement in the event, and for such period of time as, such a suspension is
required by the rules and regulations of the Securities and Exchange Commission
("SEC") as applied to the Company, and may suspend use of the prospectus
included in the registration statement if such prospectus ceases to meet the
requirements of Section 10 of the Securities Act. The Company will immediately
advise the Holder of any such suspension and will use its commercially
reasonable efforts to cause such suspension to terminate at the earliest
possible date. The Holder agrees that following receipt of any such notice, and
until such suspension is terminated, the Holder will not make use of the
suspended prospectus and will make no sales requiring delivery of such
prospectus.
(c) In connection with any registration and subject to the Company's
right to discontinue any registration, the Company shall, as expeditiously as
reasonably possible:
(i) Prepare and file with the SEC a registration statement
with respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration to become effective.
(ii) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement and notify the Holder of the
filing and effectiveness of such registration statement and any amendments or
supplements.
(iii) Furnish to the Holder such copies of a current
prospectus conforming with the requirements of the Securities Act, copies of the
registration statement, any amendment or supplement thereto and any documents
incorporated by reference therein and such other documents as the Holder may
reasonably require in order to facilitate the disposition of Registrable
Securities owned by the Holder.
(iv) Use its commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such
securities or "blue sky" laws of such jurisdictions in the United States as
shall be reasonably requested by the Holder and keep such registration or
qualification effective as long as required to permit sale of the Registrable
Securities thereunder, provided that the Company shall not be required in
connection therewith
Company:________ Holder:________
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or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(v) Notify the Holder immediately 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 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, and use its commercially reasonable efforts to promptly update and/or
correct such prospectus.
(vi) Furnish to the Holder included therein an opinion of
counsel to the Company covering compliance of the registration statement, as to
form, with the requirements of the Securities Act and the rules thereunder, and
covering the matters covered in the opinion filed as an exhibit to the
registration statement.
(vii) If such registration is to be made in an underwritten
offering, the Company shall use it commercially reasonable efforts to obtain a
"cold comfort" letter from the Company's independent public accountants in
customary form and covering such matters as are customarily included in "cold
comfort" letters.
(viii) Subject to the execution of appropriate confidentiality
agreements, the Company shall make available for inspection by the Holder, the
managing underwriter, if any, and the Holder's legal counsel, financial advisors
and accountants financial and other records, documents and agreements and such
other information relating to the Company as may be reasonably necessary to
enable them to fulfill their due diligence responsibilities.
(ix) List the Registrable Securities covered by such
registration statement on any securities exchange or national market in the
United States on which the Registrable Securities of the Company is then listed.
SECTION 3. CERTAIN LIMITATION ON REGISTRATION RIGHTS.
If the Company or Holder of securities initially requesting or
demanding such registration have determined to enter into an underwriting
agreement in connection therewith, all Registrable Securities to be included in
such registration shall be subject to such underwriting agreement and the Holder
may not participate in such registration unless the Holder agrees to sell the
Holder's Registrable Securities on the basis provided in the underwriting
arrangements approved by such Holder and completes and/or executes all
questionnaires, indemnities, underwriting agreements and other reasonable
documents which must be executed under the terms of such underwriting
arrangements.
SECTION 4. ALLOCATION OF SECURITIES INCLUDED IN REGISTRATION STATEMENT.
If the managing underwriter of such offering shall advise the Company
and the Holder in writing that the total amount of securities requested to be
included therein exceeds the amount of securities which can be sold in such
offering or the amount of securities which can be sold in such offering at the
price at which securities could be sold without such inclusion, the Company
shall include in such registration: (a) first, all shares of Registrable
Securities of the Company or
Company:________ Holder:________
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the person exercising any contractual right to cause the preparation of the
registration statement by the Company, as the case may be, (b) second, all
shares of Registrable Securities of the Company, in the event that the Company
caused the preparation of the registration statement pursuant to a contractual
obligation, and (c) third, all shares of Registrable Securities proposed to be
sold by the Holder and the holders of other securities of the Company seeking to
participate in any registration allocated PRO RATA among such sellers, including
the Holder, on the basis of the total number of shares of Registrable Securities
requested to be included therein by such sellers.
SECTION 5. LIMITATIONS ON SALE OR DISTRIBUTION OF SECURITIES.
If a registration under this Agreement shall be in connection with an
underwritten public offering, the Holder shall be deemed to have agreed by
acquisition of the Registrable Securities not to effect any public sale or
distribution (including the filing of a Form 144 indicating an intention to sell
or making any sale pursuant to Rule 144 promulgated under the Securities Act (or
any similar rule or regulation promulgated by the SEC)) of any Registrable
Securities and not to effect any such public sale or distribution of any other
equity security of the Company or of any security convertible into or
exchangeable or exercisable for any equity security of the Company (other than
as part of such underwritten public offering) shall be subject to a lock-up not
to exceed one year and any additional restrictions imposed by the underwriter in
connection with such underwritten public offering.
SECTION 6. RULE 144.
Notwithstanding anything to the contrary contained in this Agreement,
no Holder shall have any right to request that any Registrable Securities owned
by such Holder be included by the Company in any registration pursuant to
Section 2(a), if such Holder has the right, by complying with the provisions of
Rule 144 promulgated under the Securities Act (or any similar rule or regulation
promulgated by the SEC), to sell all the Registrable Securities that such Holder
is then seeking to sell during any three month period.
As long as the Company is subject to the reporting requirements under
the Securities Exchange Act of 1934, as amended, the Company agrees to file any
reports that it is required to file under such act in order to comply with the
requirement for current public information as defined in Rule 144(c) promulgated
under the Securities Act (or any similar rule or regulation promulgated by the
SEC). The provisions of this paragraph shall terminate at such time as such
Holder has sold all Registrable Securities owned by such Holder.
SECTION 7. INFORMATION.
The Holder will furnish to the Company in connection with any
registration under this Agreement such information regarding itself, the number
of shares of Registrable Securities owned by such Holder and the number of
shares to be registered, the number of shares or amount of other securities of
the Company held by it, the intended method of disposition of such Registrable
Securities as shall be reasonably required to effect the registration of the
Registrable Securities held by such Holder of Registrable Securities.
Company:________ Holder:________
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The Company shall, in conformance with the provisions of Section 11(a)
of the Securities Act and Rule 158 promulgated thereunder (or any similar rule
or regulation promulgated by the SEC), make generally available to its security
Holder an earnings statement covering a period of at least twelve months
beginning after the effective date of any registration statement which includes
Registrable Securities of the Holder. The Company shall make such statement
generally available to its security Holder as soon as practicable, but in any
event not later than the later of (a) 15 months after the effective date of such
registration statement or (b) 30 days after the Company receives a written
request from the Holder to make such statement generally available to the
Company's security Holder, which request shall not be made earlier than 14
months after the effective date of such registration statement.
SECTION 8. INDEMNIFICATION; CONTRIBUTION
(a) The Company shall indemnify, defend and hold harmless the Holder
and each of its officers, directors, employees, agents, partners or controlling
persons (within the meaning of the Securities Act) (each, an "indemnified
party") from and against, and shall reimburse such indemnified party with
respect to, any and all claims, suits, demands, causes of action, losses,
damages, liabilities, costs or expenses ("Liabilities") to which such
indemnified party may become subject under the Securities Act or otherwise,
arising from or relating to (A) any untrue statement or alleged untrue statement
of any material fact contained in such registration statement, any prospectus
contained therein or any amendment or supplement thereto, or (B) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading; PROVIDED, HOWEVER, that the Company shall
not be liable in any such case to the extent that any such Liability arises out
of or is based upon an untrue statement or omission so made in conformity with
written information furnished by or on behalf of such indemnified party
specifically for use in the registration statement; PROVIDED FURTHER, that the
Company shall not be liable in any such case to the extent that any such
Liability arising out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus if
(i) the Holder under an obligation to send or deliver a copy of the prospectus
with or prior to the delivery of written confirmation of the sale of Registrable
Securities failed to deliver such prospectus to the person asserting such
Liability who purchased such Registrable Securities which are the subject
thereof from such Holder and (ii) the prospectus would have corrected such
untrue statement or omission; and PROVIDED FURTHER, that the Company shall not
be liable in any such case to the extent that any Liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission in the prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the prospectus and if, having previously been furnished by or on
behalf of the Company with copies of the prospectuses so amended or supplemented
and having been obligated to deliver such prospectuses, the Holder thereafter
failed to deliver such prospectus as so amended or supplemented, prior to or
concurrently with the sale of Registrable Securities to the person asserting
such Liability who purchased such Registrable Securities which are the subject
thereof from such Holder.
(b) Each Holder shall indemnify, defend and hold harmless the Company,
and its officers, directors, employees, agents, partners, or controlling persons
(within the meaning of the Securities Act) (each, an "indemnified party") from
and against, and shall reimburse such
Company:________ Holder:________
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indemnified party with respect to, any and all Liabilities to which such
indemnified party may become subject under the Securities Act or otherwise,
arising from or relating to (A) any untrue statement or alleged untrue statement
of any material fact contained in such registration statement, any prospectus
contained therein or any amendment or supplement thereto, or (B) the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading; PROVIDED, that the Holder will be liable
in any such case to the extent, and only to the extent, that any such Liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement, prospectus
or amendment or supplement thereto in reliance upon written information
furnished by or on behalf of the Holder specifically for use in the registration
statement.
(c) Promptly after receipt by any indemnified party of notice of the
commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against another party (the "indemnifying party")
hereunder, notify such party in writing thereof, but the omission so to notify
shall not relieve the indemnifying party from any Liability which it may have to
the indemnified party other than under this section and shall only relieve it
from any Liability which it may have to the indemnified party under this section
if and to the extent it is actually prejudiced by such omission. In case any
such action shall be brought against any indemnified party and such indemnified
party shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and to the extent it
shall wish, to assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party to the indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to the indemnified
party under this section for any legal expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, PROVIDED,
HOWEVER, that if the defendants in any such action include both the indemnifying
party and such indemnified party and the indemnified party shall have reasonably
concluded based upon a written opinion of counsel that there may be reasonable
defenses available to it which are different from those available to the
indemnifying party or if the interests of the indemnified party reasonably may
be deemed to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise to participate in the defense of such
action, with (subject to the following sentence) the reasonable expenses and
fees of such separate counsel and other reasonable expenses related to such
participation to be reimbursed by the indemnifying party as incurred. If the
Company is the indemnifying party it shall pay the reasonable expenses and fees
of only one separate counsel whose selection is approved by the largest group of
similarly situated indemnified parties as measured by the aggregate value of
securities registered by such group. Any indemnified party who chooses not to be
represented by the foregoing separate counsel shall be entitled, at its own
expense, to be represented by counsel of its own selection.
(d) In order to provide for just and equitable contribution, if a claim
for indemnification is made pursuant to the provisions of this Section, but is
found in a final judgment by a court of competent jurisdiction (not subject to
further appeal) that such indemnification is not available (except for the
reasons set forth in Sections 8(a) and (b)), then the indemnifying party, in
lieu of indemnifying the indemnified party, shall contribute to the
Company:________ Holder:________
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amount paid by the indemnified party as a result of such losses, claims,
damages, liabilities, or expenses in such proportion as is appropriate to
reflect the relative benefit and relative fault of the indemnifying party and
the indemnified party, as well as any other relevant equitable considerations.
The Company and the Holder agree that it would not be just and equitable if
contribution pursuant to this Section was determined by a pro rata allocation or
by any other method of allocation that does not take account such equitable
considerations. The amount paid by an indemnified party shall also include
expenses incurred by the indemnified party that would otherwise have been
subject to reimbursement or indemnification by the indemnifying party pursuant
to the provisions of this Section. No party guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from the other party.
SECTION 9. REGISTRATION EXPENSES.
In connection with any registration pursuant to this Agreement, the
Company will, whether or not any registration pursuant to this Agreement shall
become effective, from time to time promptly upon receipt of bills or invoices
relating thereto, pay all expenses, other than Selling Expenses (as hereinafter
defined), incident to its performance of or compliance with this Agreement (the
"Company Registration Expenses"), including, without limitation, all
registration, filing and National Association of Securities Dealers fees, fees
and expenses of compliance with securities or "blue sky" laws, word processing,
duplicating and printing expenses, messenger and delivery expenses, fees and
disbursements of counsel for the Company and the Company's independent public
accountants (other than any expenses related to a "cold comfort" letter) and
other persons retained by the Company. All expenses, other than Company
Registration Expenses, including, without limitation, fees and expenses of the
Holder's counsel, financial advisors and accountants, fees and expenses related
to a "cold "comfort" letter and underwriting discounts and commissions
applicable to the Registrable Securities to be sold by the Holder, shall be paid
by the Holder (collectively, "Selling Expenses").
SECTION 10. MISCELLANEOUS.
(a) NOTICES.
(i) All notices, requests, demands, or other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given upon actual receipt, or upon the expiration of four days after
the date of mailing, fully pre-paid, registered or return receipt requested, to
the parties at the following addresses:
If to the Holder: Shepherd Large Cap Growth Fund
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Chairman of
the Board and Managing Director
Facsimile: 703.683.9083
Company:________ Holder:________
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With a copy to: Xxx Xxxxxxx & Xxxxxxx Capital
Management, Inc.
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Facsimile: 703.683.9083
If to the Company: Empire Financial Holding Company
0000 Xxxx Xxxxx Xxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Chief
Executive Officer
Facsimile No.: 407.682.1664
With a copy to: Xxxxxxxxx Xxxxxxx, P.A.
600 Three Galleria Tower
00000 Xxxx Xxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: 305.961.5531
(ii) Any party may change the address to which notices,
requests, demands or other communications to such party shall be delivered or
mailed by giving notice thereof to the other parties hereto in the manner
provided herein.
(b) COUNTERPARTS; INTERPRETATION. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
which shall constitute one and the same instrument. This Agreement supersedes
all prior discussions and agreements between the parties with respect to the
subject matter hereof, and this Agreement contains the sole and entire agreement
among the parties with respect to the matters covered hereby. This Agreement
shall not be altered or amended except by an instrument in writing signed by or
on behalf of all of the parties hereto. No ambiguity in any provision hereof
shall be construed against a party by reason of the fact it was drafted by such
party or its counsel. For purposes of this Agreement: "herein", "hereby",
"hereunder", "herewith", "hereafter" and "hereinafter" refer to this Agreement
in its entirety, and not to any particular subsection or paragraph. References
to "including" means including without limiting the generality of any
description preceding such term. Nothing expressed or implied in this Agreement
is intended, or shall be construed, to confer upon or give any person other than
the parties hereto any rights or remedies under or by reason of this Agreement.
(c) GOVERNING LAW. The validity and effect of this Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Florida, without regard to any conflict-of-law rule or principle that would
give effect to the laws of another jurisdiction. Each party hereto irrevocably
submits to the non-exclusive jurisdiction of the courts of the State of Florida
in any action or proceeding arising out of or relating to this Agreement or any
other agreement executed in connection with this Agreement.
Company:________ Holder:________
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(d) SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, legal representatives, and successors; PROVIDED, HOWEVER, that
no party may assign this Agreement or any rights hereunder, in whole or in part,
without the consent of the other party.
(e) PARTIAL INVALIDITY AND SEVERABILITY. All rights and restrictions
contained herein may be exercised and shall be applicable and binding only to
the extent that they do not violate any applicable laws and are intended to be
limited to the extent necessary to render this Agreement legal, valid and
enforceable. If any terms of this Agreement not essential to the commercial
purpose of this Agreement shall be held to be illegal, invalid or unenforceable
by a court of competent jurisdiction, it is the intention of the parties that
the remaining terms hereof shall constitute their agreement with respect to the
subject matter hereof and all such remaining terms shall remain in full force
and effect. To the extent legally permissible, any illegal, invalid or
unenforceable provision of this Agreement shall be replaced by a valid provision
which will implement the commercial purpose of the illegal, invalid or
unenforceable provision.
(f) WAIVER. Any term or condition of this Agreement may be waived at
any time by the party which is entitled to the benefit thereof, but only if such
waiver is evidenced by a writing signed by such party. No failure on the part of
a party hereto to exercise, and no delay in exercising, any right, power or
remedy created hereunder, shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or remedy by any such party
preclude any other future exercise thereof or the exercise of any other right,
power or remedy. No waiver by any party hereto to any breach of or default in
any term or condition of this Agreement shall constitute a waiver of or assent
to any succeeding breach of or default in the same or any other term or
condition hereof.
(g) HEADINGS. The headings as to contents of particular paragraphs of
this Agreement are inserted for convenience only and shall not be construed as a
part of this Agreement or as a limitation on the scope of any terms or
provisions of this Agreement.
(h) EXPENSES. Except as otherwise expressly provided herein, all legal
and other costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the parties as each party
incurs such expenses.
(i) GENDER. Where the context requires, the use of the singular form
herein shall include the plural, the use of the plural shall include the
singular, and the use of any gender shall include any and all genders.
(j) ACCEPTANCE BY FAX. This Agreement shall be accepted, effective and
binding, for all purposes, when the parties shall have signed and transmitted to
each other, by telecopier or otherwise, copies of the signature pages hereto.
(k) NUMBER OF DAYS. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; PROVIDED, HOWEVER, that if the last day of any time period falls on a
day which is not a Business Day, then the last day shall be deemed to be the
next day which is a Business Day.
Company:________ Holder:________
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(l) ATTORNEYS' FEES. In the event of any litigation arising under the
terms of this Agreement, the prevailing party or parties shall be entitled to
recover its or their reasonable attorneys fees and court costs from the other
party or parties.
(m) NO JURY TRIAL. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT AND ANY DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR
THE PARTIES' ACCEPTANCE OF THIS AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement or caused
this Agreement to be duly executed by their duly authorized officers as of the
day and year first above written.
EMPIRE FINANCIAL HOLDING COMPANY,
a Florida corporation
By: /s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
Chief Executive Officer
SHEPHERD LARGE CAP GROWTH FUND
By: /s/ Xxxx Xxxxxxxx
-----------------
Xxxx Xxxxxxxx
Chairman of the Board and Managing Director
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