Exhibit 10.10
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of July 6, 2001, by and between Saxon Capital Acquisition Corp.,
a Delaware corporation (the "Company") and Friedman, Billings, Xxxxxx & Co.,
Inc., a Delaware corporation (the "Initial Purchaser"), for the benefit of the
Initial Purchaser and its respective direct and indirect transferees.
This Agreement is made pursuant to the Purchase Agreement (the
"Offering Purchase Agreement"), dated June 29, 2001, by and between the Company
and the Initial Purchaser. In order to induce the Initial Purchaser to enter
into the Offering Purchase Agreement, the Company has agreed to provide the
registration rights provided for in this Agreement to the Initial Purchaser and
its direct and indirect transferees. The execution of this Agreement is a
condition to the closing of the transactions contemplated by the Offering
Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
ACCREDITED INVESTOR SHARES: Shares initially resold by the
Initial Purchaser pursuant to the Offering Purchase Agreement to
"accredited investors" (within the meaning of Rule 501(a) promulgated
under the Securities Act).
AFFILIATE: As to any specified Person, (i) any Person directly
or indirectly owning, controlling or holding, with power to vote, ten
percent or more of the outstanding voting securities of such other
Person, (ii) any Person ten percent or more of whose outstanding voting
securities are directly or indirectly owned, controlled or held, with
power to vote, by such other Person, (iii) any Person directly or
indirectly controlling, controlled by or under common control with such
other Person, (iv) any executive officer, director, trustee or general
partner of such Person and (v) any legal entity for which such Person
acts as an executive officer, director, trustee or general partner. An
indirect relationship shall include circumstances in which a Person's
spouse, children, parents, siblings or mother-, father-, sister- or
brother-in-law is or has been associated with a Person.
BUSINESS DAY: With respect to any act to be performed
hereunder, each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in New York, New York or other
applicable place where such act is to occur are authorized or obligated
by applicable law, regulation or order to close.
CLOSING DATE: July 6, 2001 or such other time or date as the
Initial Purchaser and the Company may agree.
COMMISSION: The Securities and Exchange Commission.
COMMON STOCK: The common stock, par value $0.01 per share, of
the Company.
COMPANY: Saxon Capital Acquisition Corp., a Delaware
corporation, and any successor corporation thereto.
CONTROLLING PERSON: As defined in Section 6(a) hereof.
END OF SUSPENSION NOTICE: As defined in Section 5(b) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated by the Commission pursuant
thereto.
HOLDER: Each record owner of any Registrable Shares from time
to time, including the Initial Purchaser and its Affiliates.
INDEMNIFIED PARTY: As defined in Section 6(c) hereof.
INDEMNIFYING PARTY: As defined in Section 6(c) hereof.
INITIAL PURCHASER: As defined in the preamble.
IPO REGISTRATION STATEMENT: As defined in Section 2 hereof.
LIABILITIES: As defined in Section 6(a) hereof.
NASD: The National Association of Securities Dealers, Inc.
OFFERING MEMORANDUM: The Offering Memorandum of the Company
dated July 2, 2001 pursuant to which the Shares are offered and sold.
OFFERING PURCHASE AGREEMENT: As defined in the preamble.
PERSON: An individual, partnership, corporation, trust,
unincorporated organization, government or agency or political
subdivision thereof, or any other legal entity.
PROCEEDING: An action, claim, suit or proceeding (including
without limitation, an investigation or partial proceeding, such as a
deposition), whether commenced or, to the knowledge of the Person
subject thereto, threatened.
PROSPECTUS: The prospectus included in any Registration
Statement, including any preliminary prospectus, and all other
amendments and supplements to any such prospectus, including
post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference, if any, in such prospectus.
2
PURCHASER INDEMNITEE: As defined in Section 6(a) hereof.
REGISTRABLE SHARES: The Rule 144A Shares, the Accredited
Investor Shares, the Regulation S Shares and the Warrant Shares, upon
original issuance thereof and at all times subsequent thereto,
including upon the transfer thereof by the original holder or any
subsequent holder and any shares or other securities issued in respect
of such Shares by reason of or in connection with any exchange for or
replacement of such Shares or any stock dividend, stock distribution,
stock split, purchase in any rights offering or in connection with any
combination of shares, recapitalization, merger or consolidation, or
any other equity securities issued pursuant to any other pro rata
distribution with respect to the Common Stock, until, in the case of
any such Rule 144A Share, Accredited Investor Share, Regulation S Share
or Warrant Share, the earliest to occur of (i) the date on which it has
been registered effectively pursuant to the Securities Act and disposed
of in accordance with the Registration Statement relating to it, (ii)
the date on which either it is distributed to the public pursuant to
Rule 144 (or any similar provision then in effect) or is saleable
pursuant to Rule 144(k) promulgated by the Commission pursuant to the
Securities Act or (iii) the date on which it is sold to the Company.
REGISTRATION EXPENSES: Any and all expenses incident to the
performance of or compliance with this Agreement, including, without
limitation: (i) all Commission, securities exchange, NASD registration,
listing, inclusion and filing fees, (ii) all fees and expenses incurred
in connection with compliance with international, federal or state
securities or blue sky laws (including, without limitation, any
registration, listing and filing fees and reasonable fees and
disbursements of counsel in connection with blue sky qualification of
any of the Registrable Shares and the preparation of a blue sky
memorandum and compliance with the rules of the NASD), (iii) all
expenses of any Persons in preparing or assisting in preparing, word
processing, duplicating, printing, delivering and distributing any
Registration Statement, any Prospectus, any amendments or supplements
thereto, any underwriting agreements, securities sales agreements,
certificates and any other documents relating to the performance under
and compliance with this Agreement, (iv) all fees and expenses incurred
in connection with the listing or inclusion of any of the Registrable
Shares on any securities exchange or the Nasdaq Stock Market pursuant
to Section 4(n) of this Agreement, (v) the fees and disbursements of
counsel for the Company and of the independent public accountants
(including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance),
and reasonable fees and disbursements of one counsel for the selling
Holders and (vi) any fees and disbursements customarily paid in issues
and sales of securities (including the fees and expenses of any experts
retained by the Company in connection with any Registration Statement),
but excluding brokers' or underwriters' discounts and commissions, if
any, relating to the sale or disposition of Registrable Shares by a
Holder.
REGISTRATION STATEMENT: Any registration statement of the
Company that covers the resale of Registrable Shares pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement or
3
Prospectus, including pre- and post-effective amendments, all exhibits
thereto and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement.
REGULATION S: Regulation S (Rules 901-904) promulgated by the
Commission under the Securities Act, as such rules may be amended from
time to time, or any similar rule or regulation hereafter adopted by
the Commission as a replacement thereto having substantially the same
effect as such regulation.
REGULATION S SHARES: Shares initially resold by the Initial
Purchaser pursuant to the Offering Purchase Agreement to "non-U.S.
persons" (in accordance with Regulation S) in an "offshore transaction"
(in accordance with Regulation S).
RULE 144: 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 as a
replacement thereto having substantially the same effect as such rule.
RULE 144A: Rule 144A 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 as a
replacement thereto having substantially the same effect as such rule.
RULE 144A SHARES: Shares initially resold by the Initial
Purchaser pursuant to the Offering Purchase Agreement to "qualified
institutional buyers" (as such term is defined in Rule 144A).
RULE 158: 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 as a
replacement thereto having substantially the same effect as such rule.
RULE 174: Rule 174 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 as a
replacement thereto having substantially the same effect as such rule.
RULE 415: 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 as a
replacement thereto having substantially the same effect as such rule.
RULE 424: Rule 424 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 as a
replacement thereto having substantially the same effect as such rule.
4
RULE 429: Rule 429 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 as a
replacement thereto having substantially the same effect as such rule.
SECURITIES ACT: The Securities Act of 1933, as amended, and
the rules and regulations promulgated by the Commission thereunder.
SHARES: The shares of Common Stock (i) being offered and sold
pursuant to the terms and conditions of the Offering Purchase Agreement
and (ii) issuable upon the exercise of the warrants being issued to the
Initial Purchaser pursuant to the Warrant Agreement.
SHELF REGISTRATION STATEMENT: As defined in Section 2 hereof.
SUSPENSION EVENT: As defined in Section 5(b) hereof.
SUSPENSION NOTICE: As defined in Section 5(b) hereof.
UNDERWRITTEN OFFERING: A sale of securities of the Company to
an underwriter or underwriters for reoffering to the public.
WARRANT AGREEMENT: The agreement between the Company and the
Initial Purchaser dated as of July 6, 2001 pursuant to which the
Company agrees to issue to the Initial Purchaser warrants to purchase
up to an aggregate of 1,240,000 shares of Common Stock.
WARRANT SHARES: The shares of Common Stock issuable upon
exercise of the warrants to be issued pursuant to the Warrant
Agreement.
2. REGISTRATION RIGHTS
As set forth in Section 4 hereof, the Company agrees to file with the
Commission as soon as reasonably practicable, but in no event later than one
hundred twenty (120) days after the date of this Agreement, either (i) a
Registration Statement on Form S-1 or such other form under the Securities Act
providing for the initial public offering of shares of Common Stock (an "IPO
Registration Statement"), which IPO Registration Statement will provide for the
resale by the Holders of any and all Registrable Shares (subject to Section
2(a)(ii) hereof) or (ii) a shelf Registration Statement on Form S-1 or such
other form under the Securities Act then available to the Company providing for
the resale pursuant to Rule 415 from time to time by the Holders of any and all
Registrable Shares (a "Shelf Registration Statement").
(a) IPO REGISTRATION. If the Company files an IPO Registration
Statement, the Company will notify each Holder of the proposed filing and afford
each Holder of Registrable Shares an opportunity to include in such IPO
Registration Statement all or any part of the
5
Registrable Shares then held by such Holder. Each Holder desiring to include
in any such IPO Registration Statement all or part of the Registrable Shares
held by such Holder shall, within twenty (20) days after receipt of the
above-described notice from the Company, so notify the Company in writing,
and in such notice shall inform the Company of the number of Registrable
Securities such Holder wishes to include in such IPO Registration Statement.
(i) RIGHT TO TERMINATE REGISTRATION. The Company shall
have the right to terminate or withdraw any IPO Registration Statement
initiated by it referred to in this Section 2(a) prior to the
effectiveness of such registration whether or not any Holder has
elected to include Registrable Shares in such registration. However, if
the Company elects to terminate or withdraw any such IPO Registration
Statement prior to its effectiveness and the sale of any Registrable
Shares covered thereby, then the Company shall be obligated to file a
Shelf Registration Statement relating to all Registrable Shares within
thirty (30) days of the date of such termination or withdrawal.
(ii) UNDERWRITING. If an IPO Registration Statement under
which the Company gives notice under this Section 2(a) is for an
Underwritten Offering, then the Company shall so advise the Holders of
Registrable Shares. In such event, the right of any such Holder's
Registrable Shares to be included in a registration pursuant to this
Section 2(a) shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Shares
in the underwriting to the extent provided herein. All Holders
proposing to distribute their Registrable Shares through such
underwriting shall enter into an underwriting agreement in customary
form with the managing underwriter(s) selected for such underwriting
and complete and execute any questionnaires, powers of attorney,
indemnities, securities escrow agreements and other documents
reasonably required under the terms of such underwriting, and furnish
to the Company such information as the Company may reasonably request
in writing for inclusion in the Registration Statement; PROVIDED,
HOWEVER, that no Holder shall be required to make any representations
or warranties to or agreements with the Company or the underwriters
other than representations, warranties or agreements regarding such
Holder and such Holder's intended method of distribution and any other
representation required by law. Notwithstanding any other provision of
this Agreement, if the managing underwriter(s) determine(s) in good
faith that marketing factors require a limitation on the number of
shares to be underwritten, then the managing underwriter(s) may exclude
shares (including Registrable Shares) from the registration and the
underwriting shall be allocated among all Holders PRO RATA on the basis
of Registrable Shares offered for such registration by each Holder
electing to participate in such registration. If any Holder disapproves
of the terms of any such underwriting, such Holder may elect to
withdraw therefrom by written notice to the Company and the
underwriter, delivered at least ten (10) Business Days prior to the
effective date of the Registration Statement. Any Registrable Shares
excluded or withdrawn from such underwriting shall be excluded and
withdrawn from the registration.
(iii) HOLD-BACK AGREEMENT. By electing to include
Registrable Shares in any registration pursuant to this Section 2(a),
the Holder of the Registrable Shares shall be deemed to have agreed not
to effect any public sale or distribution of securities of the
6
Company of the same or similar class or classes of the securities
included in the Registration Statement or any securities convertible
into or exchangeable or exercisable for such securities, including a
sale pursuant to Rule 144 or Rule 144A under the Securities Act,
during such periods as reasonably requested (but in no event for a
period longer than thirty (30) days prior to and one hundred eighty
(180) days following the effective date of the IPO Registration
Statement) by the representatives of the underwriters, if an
Underwritten Offering, or by the Company in any other registration.
(iv) REGISTRABLE SHARES NOT SOLD UNDER IPO REGISTRATION
STATEMENT. If (w) the IPO Registration Statement is withdrawn prior to
the distribution of all Registrable Shares registered thereunder, (x)
the underwriters exercise their right to exclude any Registrable Shares
from the IPO Registration Statement, (y) any Holder elects to withdraw
or not to include any Registrable Shares in the IPO Registration
Statement or (z) any Registrable Shares are otherwise not registered
under and distributed pursuant to the IPO Registration Statement, then
the Company will be obligated to file a Shelf Registration Statement
relating to any Registrable Shares not included in and distributed
pursuant to the IPO Registration Statement (a) within thirty (30) days
of the withdrawal or abandonment of the offering pursuant to the IPO
Registration Statement or (b) within one hundred eighty (180) days of
the consummation of the offering pursuant to the IPO Registration
Statement.
(b) SHELF REGISTRATION. If the Company elects to file a Shelf
Registration Statement or is otherwise required to file a Shelf Registration
Statement pursuant to this Section 2, it shall use its best efforts to cause
such Shelf Registration Statement to be declared effective by the Commission as
soon as practicable. Any Shelf Registration Statement shall provide for the
resale from time of time, and pursuant to any method or combination of methods
legally available (including, without limitation, an Underwritten Offering, a
direct sale to purchasers, a sale through brokers or agents, or a sale over the
internet) by the Holders of any and all Registrable Shares.
(c) EXPENSES. The Company shall pay all Registration Expenses in
connection with the registration of the Registrable Shares pursuant to this
Agreement. Each Holder participating in a registration pursuant to this Section
2 shall bear such Holder's proportionate share (based on the total number of
Registrable Shares sold in such registration) of all discounts, commissions or
other amounts payable to underwriters or brokers in connection with a
registration of Registrable Shares pursuant to this Agreement.
3. RULES 144 AND 144A REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission that may at any time permit the sale of the
Registrable Shares to the public without registration, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date of the first
7
registration under the Securities Act filed by the Company for an offering of
its securities to the general public;
(b) use its reasonable best efforts to file with the Commission in
a timely manner all reports and other documents required to be filed by the
Company under the Securities Act and the Exchange Act (at any time after it has
become subject to such reporting requirements);
(c) so long as a Holder owns any Registrable Shares, if the
Company is not required to file reports and other documents under the Securities
Act and the Exchange Act, it will make available other information as required
by, and so long as necessary to permit sales of Registrable Shares pursuant to,
Rule 144 or Rule 144A; and
(d) so long as a Holder owns any Registrable Shares, to furnish to
the Holder promptly upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time after ninety
(90) days after the effective date of the first Registration Statement filed by
the Company for an offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become subject to
the reporting requirements of the Exchange Act), a copy of the most recent
annual or quarterly report of the Company, and such other reports and documents
of the Company, and take such further actions, as a Holder may reasonably
request in availing itself of any rule or regulation of the Commission allowing
a Holder to sell any such Registrable Shares without registration.
4. REGISTRATION PROCEDURES
In connection with the obligations of the Company with respect to any
registration pursuant to this Agreement, the Company shall use its best efforts
to effect or cause to be effected the registration of the Registrable Shares
under the Securities Act to permit the sale of such Registrable Shares by the
Holder or Holders in accordance with the Holder's or Holders' intended method or
methods of distribution, and the Company shall:
(a) prepare and file with the Commission, as specified in this
Agreement, a Registration Statement, which Registration Statement shall comply
as to form in all material respects with the requirements of the applicable form
and include all financial statements required by the Commission to be filed
therewith, and use its best efforts to cause such Registration Statement to
become effective as soon as practicable after filing and to remain effective,
subject to Section 5 hereof, until the earlier of (i) the date on which all such
Registrable Shares are sold in accordance with the intended distribution of such
Shares, (ii) none of the Shares are Registrable Shares or (iii) the second
anniversary of the effective date of such Registration Statement (subject to
extension as provided in Section 5(c) hereof), PROVIDED, HOWEVER, that the
Company shall not be required to cause any IPO Registration Statement to remain
effective for any period longer than ninety (90) days following the effective
date of such IPO Registration Statement (subject to extension as provided in
Section 5(c) hereof); PROVIDED, FURTHER, that if the Company has an effective
Shelf Registration Statement on Form S-1 under the Securities Act and becomes
eligible to use Form S-3 or such other short-form registration statement form
under the Securities Act, the Company may, upon thirty (30) Business Days prior
8
notice to all Holders of Registrable Shares, register any Registrable Shares
registered but not yet distributed under the effective Shelf Registration
Statement on such a short-form Shelf Registration Statement and, once the
short-form Shelf Registration Statement is declared effective, de-register such
shares under the previous Registration Statement or transfer the filing fees
from the previous Registration Statement (such transfer pursuant to Rule 429, if
applicable) unless any Holder of Registrable Shares registered under the initial
Shelf Registration Statement notifies the Company within twenty (20) Business
Days of receipt of the Company notice that such a registration under a new
Registration Statement and de-registration of the initial Shelf Registration
Statement would interfere with its distribution of Registrable Shares already in
progress;
(b) subject to Section 4(i) hereof, (i) prepare and file with the
Commission such amendments and post-effective amendments to each such
Registration Statement as may be necessary to keep such Registration Statement
effective for the period described in Section 4(a) hereof; (ii) cause each
Prospectus contained therein to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 or any
similar rule that may be adopted under the Securities Act; and (iii) comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by each Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the selling
Holders thereof;
(c) furnish to the Holders of Registrable Shares, without charge,
as many copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto and such other documents as such Holder may
reasonably request, in order to facilitate the public sale or other disposition
of the Registrable Shares; the Company consents to the use of such Prospectus,
including each preliminary Prospectus, by the Holders of Registrable Shares, if
any, in connection with the offering and sale of the Registrable Shares covered
by any such Prospectus;
(d) use its best efforts to register or qualify, or obtain
exemption from registration or qualification for, all Registrable Shares by the
time the applicable Registration Statement is declared effective by the
Commission under all applicable state securities or "blue sky" laws of such
jurisdictions as the Initial Purchaser or any Holder of Registrable Shares
covered by a Registration Statement shall reasonably request in writing, keep
each such registration or qualification or exemption effective during the period
such Registration Statement is required to be kept effective pursuant to Section
4(a) and do any and all other acts and things that may be reasonably necessary
or advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Shares owned by such Holder; PROVIDED, HOWEVER,
that the Company shall not be required to (i) qualify generally to do business
in any jurisdiction or to register as a broker or dealer in such jurisdiction
where it would not otherwise be required to qualify but for this Section 4(d)
and except as may be required by the Securities Act, (ii) subject itself to
taxation in any such jurisdiction, or (iii) submit to the general service of
process in any such jurisdiction;
(e) use its best efforts to cause all Registrable Shares covered
by such Registration Statement to be registered and approved by such other
governmental agencies or authorities as
9
may be necessary to enable the Holders thereof to consummate the disposition
of such Registrable Shares;
(f) notify the Initial Purchaser and each Holder of Registrable
Shares promptly and, if requested by the Initial Purchaser or any Holder,
confirm such advice in writing (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements thereto become
effective, (ii) of the issuance by the Commission or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iii) of any
request by the Commission or any other federal or state governmental authority
for amendments or supplements to a Registration Statement or related Prospectus
or for additional information, (iv) of the happening of any event during the
period a Registration Statement is effective as a result of which such
Registration Statement or the related Prospectus or any document incorporated by
reference therein contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading (which information shall be accompanied by an
instruction to suspend the use of the Prospectus until the requisite changes
have been made) and (v) at the request of any such Holder, promptly to furnish
to such Holder a reasonable number of copies of a supplement to or an amendment
of such Prospectus as may be necessary so that, as thereafter delivered to the
purchaser of such securities, such Prospectus shall not include 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 not misleading;
(g) make every reasonable effort to avoid the issuance of, or if
issued, to obtain the withdrawal of, any order enjoining or suspending the use
or effectiveness of a Registration Statement or suspending of the qualification
(or exemption from qualification) of any of the Registrable Shares for sale in
any jurisdiction, as promptly as practicable;
(h) upon request, furnish to each requesting Holder of Registrable
Shares, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment or supplement thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(i) except as provided in Section 5, upon the occurrence of any
event contemplated by Section 4(f)(iv) hereof, use its best efforts to promptly
prepare a supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Shares, such Prospectus will not contain any 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;
(j) if requested by the representative of the underwriters, if
any, or any Holders of Registrable Shares being sold in connection with such
offering, (i) promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the representative of the underwriters, if any, or
such Holders indicate relates to them or otherwise reasonably request be
included therein and (ii) make all required filings of such Prospectus
supplement or such post-
10
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;
(k) in the case of an Underwritten Offering, use its best efforts
to furnish to each Holder of Registrable Shares covered by such Registration
Statement and the underwriters a signed counterpart, addressed to each such
Holder and the underwriters, of: (i) an opinion of counsel for the Company,
dated the date of each closing under the underwriting agreement, reasonably
satisfactory to such Holder; and (ii) a "comfort" letter, dated the effective
date of such Registration Statement and the date of each closing under the
underwriting agreement, signed by the independent public accountants who have
certified the Company's financial statements included in such Registration
Statement, covering substantially the same matters with respect to such
Registration Statement (and the Prospectus included therein) and with respect to
events subsequent to the date of such financial statements, as are customarily
covered in accountants' letters delivered to underwriters in underwritten public
offerings of securities and such other financial matters as such Holder and the
underwriters may reasonably request;
(l) enter into customary agreements (including in the case of an
Underwritten Offering, an underwriting agreement in customary form) and take all
other action in connection therewith in order to expedite or facilitate the
distribution of the Registrable Shares included in such Registration Statement
and, in the case of an Underwritten Offering, make representations and
warranties to the Holders of Registrable Shares covered by such Registration
Statement and to the underwriters in such form and scope as are customarily made
by issuers to underwriters in underwritten offerings and confirm the same to the
extent customary if and when requested;
(m) make available for inspection by representatives of the
Holders of the Registrable Shares and the representative of any underwriters
participating in any disposition pursuant to a Registration Statement and any
special counsel or accountants retained by such Holders or underwriters, all
financial and other records, pertinent corporate documents and properties of the
Company and cause the respective officers, directors and employees of the
Company to supply all information reasonably requested by any such
representatives, the representative of the underwriters, counsel thereto or
accountants in connection with a Registration Statement; PROVIDED, HOWEVER, that
such records, documents or information that the Company determines, in good
faith, to be confidential and notifies such representatives, representative of
the underwriters, counsel thereto or accountants are confidential shall not be
disclosed by the representatives, representative of the underwriters, counsel
thereto or accountants unless (i) the disclosure of such records, documents or
information is necessary to avoid or correct a misstatement or omission in a
Registration Statement or Prospectus, (ii) the release of such records,
documents or information is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, or (iii) such records, documents or information
have been generally made available to the public;
(n) use its best efforts (including, without limitation, seeking
to cure any deficiencies cited by the exchange or market in the Company's
listing or inclusion application) to list or include all Registrable Shares on
the American Stock Exchange or the Nasdaq Stock Market (unless the Company
qualifies and chooses to list all Registrable Shares on the New York Stock
11
Exchange, in which event the Company shall use its best efforts to list all
Registrable Shares on the New York Stock Exchange);
(o) prepare and file in a timely manner all documents and reports
required by the Exchange Act and, to the extent the Company's obligation to file
such reports pursuant to Section 15(d) of the Exchange Act expires prior to the
expiration of the effectiveness period of the Registration Statement as required
by Section 4(a) hereof, the Company shall register the Registrable Shares under
the Exchange Act and shall maintain such registration through the effectiveness
period required by Section 4(a) hereof;
(p) provide a CUSIP number for all Registrable Shares, not later
than the effective date of the Registration Statement;
(q) (i) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, (ii) make generally
available to its stockholders, as soon as reasonably practicable, earnings
statements covering at least 12 months that satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 (or any similar rule promulgated under
the Securities Act ) thereunder, no later than forty-five (45) days after the
end of each fiscal year of the Company and (iii) not file any Registration
Statement or Prospectus or amendment or supplement to such Registration
Statement or Prospectus to which any Holder of Registrable Shares covered by any
Registration Statement shall have reasonably objected on the grounds that such
Registration Statement or Prospectus or amendment or supplement does not comply
in all material respects with the requirements of the Securities Act, such
Holder having been furnished with a copy thereof at least two (2) Business Days
prior to the filing thereof;
(r) provide and cause to be maintained a registrar and transfer
agent for all Registrable Shares covered by any Registration Statement from and
after a date not later than the effective date of such Registration Statement;
(s) in connection with any sale or transfer of the Registrable
Shares (whether or not pursuant to a Registration Statement) that will result in
the security being delivered no longer being Registrable Shares, cooperate with
the Holders and the representative of the underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing the Registrable
Shares to be sold, which certificates shall not bear any transfer restrictive
legends and to enable such Registrable Shares to be in such denominations and
registered in such names as the representative of the underwriters, if any, or
the Holders may request at least two (2) Business Days prior to any sale of the
Registrable Shares; and
(t) upon effectiveness of the first Registration Statement filed
under this Agreement, the Company will take such actions and make such filings
as are necessary to effect the registration of the Common Stock under the
Exchange Act simultaneously with or immediately following the effectiveness of
the Registration Statement.
The Company may require the Holders of Registrable Shares to furnish to
the Company such information regarding the proposed distribution by such Holder
of such Registrable Shares as the Company may from time to time reasonably
request in writing or as shall be required to
12
effect the registration of the Registrable Shares and no Holder shall be
entitled to be named as a selling stockholder in any Registration Statement
and no Holder shall be entitled to use the Prospectus forming a part thereof
if such Holder does not provide such information to the Company.
Each Holder agrees that, upon receipt of any notice from the Company of
the happening of any event of the kind described in Section 4(f)(iii) or
4(f)(iv) hereof, such Holder will immediately discontinue disposition of
Registrable Shares pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus. If so directed
by the Company, such Holder will deliver to the Company (at the expense of the
Company) all copies in its possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Registrable Shares
current at the time of receipt of such notice.
5. BLACK-OUT PERIOD
(a) Subject to the provisions of this Section 5 and a good faith
determination by a majority of the Board of Directors of the Company that it is
in the best interests of the Company to suspend the use of the Registration
Statement, following the effectiveness of a Registration Statement (and the
filings with any international, federal or state securities commissions), the
Company, by written notice to the Initial Purchaser and to the Holders, may
direct the Holders to suspend sales of the Registrable Shares pursuant to the
Registration Statement for such times as the Company reasonably may determine is
necessary and advisable, if any of the following events shall occur: (i) an
Underwritten Offering by the Company where the Company is advised by the
representative of the underwriters for such Underwritten Offering that the sale
of Registrable Shares pursuant to the Registration Statement would have a
material adverse effect on the Company's primary offering; or (ii) pending
negotiations relating to, or the consummation of, a transaction or the
occurrence of an event (x) that would require additional disclosure of material
information by the Company in the Registration Statement (or such filings) and
which has not been so disclosed, (y) as to which the Company has a bona fide
business purpose for preserving confidentiality, or (z) that renders the Company
unable to comply with Commission requirements, in each case under circumstances
that would make it impractical or inadvisable to cause the Registration
Statement (or such filings) to become effective or to promptly amend or
supplement the Registration Statement on a post-effective basis, as applicable.
Upon the occurrence of any such suspension, the Company shall use its best
efforts to cause the Registration Statement to become effective or to promptly
amend or supplement the Registration Statement on a post-effective basis or to
take such action as is necessary to make resumed use of the Registration
Statement compatible with the Company's best interests, as applicable, so as to
permit the Holders to resume sales of the Registrable Shares as soon as
possible.
(b) In the case of an event that causes the Company to suspend the
effectiveness of a Registration Statement (a "Suspension Event"), the Company
shall give written notice (a "Suspension Notice") to the Initial Purchaser and
to the Holders to suspend sales of the Registrable Shares and such notice shall
state that such suspension shall continue only for so long as the Suspension
Event or its effect is continuing and the Company is taking all reasonable steps
to terminate suspension of the effectiveness of the Registration Statement as
promptly as
13
possible. The Holders shall not effect any sales of the Registrable Shares
pursuant to such Registration Statement (or such filings) at any time after
it has received a Suspension Notice from the Company and prior to receipt of
an End of Suspension Notice. If so directed by the Company, each Holder will
deliver to the Company (at the expense of the Company) all copies other than
permanent file copies then in such Holder's possession of the Prospectus
covering the Registrable Shares at the time of receipt of the Suspension
Notice. The Holders may recommence effecting sales of the Registrable Shares
pursuant to the Registration Statement (or such filings) following further
notice to such effect (an "End of Suspension Notice") from the Company, which
End of Suspension Notice shall be given by the Company to the Holders and the
Initial Purchaser in the manner described above promptly following the
conclusion of any Suspension Event and its effect.
(c) If the Company shall give a Suspension Notice pursuant to this
Section 5, the Company agrees that it shall extend the period of time during
which the Registration Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from the date of the giving of
the Suspension Notice to and including the date when Holders shall have received
the End of Suspension Notice and copies of the supplemented or amended
Prospectus necessary to resume sales.
6. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless (i) the
Initial Purchaser and each Holder of Registrable Shares, (ii) each Person, if
any, who controls (within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act), any such Person (any of the Persons referred
to in this clause (ii) being hereinafter referred to as a "Controlling Person"),
and (iii) the respective officers, directors, partners, employees,
representatives and agents of any such Person or any Controlling Person (any
Person referred to in clause (i), (ii) or (iii) may hereinafter be referred to
as an "Purchaser Indemnitee"), to the fullest extent lawful, from and against
any and all losses, claims, damages, judgments, actions, out-of-pocket expenses,
and other liabilities (the "Liabilities"), including without limitation and as
incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Purchaser Indemnitee, joint or
several, directly or indirectly related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (as amended or
supplemented if the Company shall have furnished to such Purchaser Indemnitee
any amendments or supplements thereto), or any preliminary Prospectus or any
other document used to sell the Shares, or any 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 under which they were
made, not misleading, except insofar as such Liabilities arise out of or are
based upon (i) any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with -information relating to
any Purchaser Indemnitee furnished to the Company or any underwriter in writing
by such Purchaser Indemnitee expressly for use therein, or (h) any untrue
statement contained in or omission from a preliminary Prospectus if a copy of
the Prospectus (as then amended or supplemented, if the Company shall have
furnished to or on behalf of the Holder participating in the distribution
relating to the relevant Registration Statement any amendments or supplements
14
thereto) was not sent or given by or on behalf of such Holder to the Person
asserting any such Liabilities who purchased Shares, if such Prospectus (or
Prospectus as amended or supplemented) is required by law to be sent or given at
or prior to the written confirmation of the sale of such Shares to such Person
and the untrue statement contained in or omission from such preliminary
Prospectus was corrected in the Prospectus (or the Prospectus as amended or
supplemented). The Company shall notify the Holders promptly of the institution,
threat or assertion of any claim, proceeding (including any governmental
investigation), or litigation of which it shall have become aware in connection
with the matters addressed by this Agreement which involves the Company or a
Purchaser Indemnitee. The indemnity provided for herein shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Purchaser Indemnitee.
(b) In connection with any Registration Statement in which a
Holder of Registrable Share is participating, such Holder agrees, severally and
not jointly, to indemnify and hold harmless the Company, each Person who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act and the respective partners, directors,
officers, members, representatives, employees and agents of such Person or
Controlling Person to the same extent as the foregoing indemnity from the
Company to each Purchaser Indemnitee, but only with reference to untrue
statements or omissions or alleged untrue statements or omissions made in
reliance upon and in strict conformity with information relating to such
Purchaser Indemnitee furnished to the Company in writing by such Purchaser
Indemnitee expressly for use in any Registration Statement or Prospectus, any
amendment or supplement thereto, or any preliminary Prospectus. The liability of
any Purchaser Indemnitee pursuant to this paragraph shall in no event exceed the
net proceeds received by such Purchaser Indemnitee from sales of Registrable
Shares giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to paragraph (a)
or (b) above, such Person (the "Indemnified Party"), shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party"), in
writing of the commencement thereof (but the failure to so notify an
Indemnifying Party shall not relieve it from any liability which it may have
under this Section 6, except to the extent the Indemnifying Party is materially
prejudiced by the failure to give notice), and the Indemnifying Party, upon
request of the Indemnified Party, shall retain counsel reasonably satisfactory
to the Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Party may reasonably designate in such proceeding and shall pay the
reasonable fees and expenses actually incurred by such counsel related to such
proceeding. Notwithstanding the foregoing, in any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party,
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed in writing to the contrary, (ii) the Indemnifying Party failed within a
reasonable time after notice of commencement of the action to assume the defense
and employ counsel reasonably satisfactory to the Indemnified Party, (iii) the
Indemnifying Party and its counsel do not actively and vigorously pursue the
defense of such action or (iv) the named parties to any such action (including
any impleaded parties), include both such Indemnified Party and the Indemnifying
Party, or any affiliate of the Indemnifying Party, and such Indemnified Party
shall have been reasonably advised by counsel that, either (x) there may be one
or more
15
legal defenses available to it which are different from or additional to
those available to the Indemnifying Party or such affiliate of the
Indemnifying Party or (y) a conflict may exist between such Indemnified Party
and the Indemnifying Party or such affiliate of the Indemnifying Party (in
which case the Indemnifying Party shall not have the right to assume nor
direct the defense of such action on behalf of such Indemnified Party, it
being understood, however, that the Indemnifying Party shall not, in
connection with any one such action or separate but substantially similar or
related actions 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 (in addition to any local counsel), for
all such indemnified parties, which firm shall be designated in writing by
those indemnified parties who sold a majority of the Registrable Shares sold
by all such indemnified parties and any such separate firm for the Company,
the directors, the officers and such control Persons of the Company as shall
be designated in writing by the Company. The Indemnifying Party shall not be
liable for any settlement of any proceeding effected without its written
consent, which consent shall not be unreasonably withheld, but if settled
with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify any Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. No Indemnifying
Party shall, without the prior written consent of the Indemnified Party,
effect any settlement of any pending or threatened proceeding in respect of
which any Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and (b)
of this Section 6 is for any reason held to be unavailable to an Indemnified
Party in respect of any Liabilities referred to therein (other than by reason of
the exceptions provided therein) or is insufficient to hold harmless a party
indemnified thereunder, then each Indemnifying Party under such paragraphs, in
lieu of indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such Liabilities
(i) in such proportion as is appropriate to reflect the relative benefits of the
Indemnified Party on the one hand and the Indemnifying Party(ies) on the other
in connection with the statements or omissions that resulted in such
Liabilities, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Indemnifying Party(ies) and the Indemnified Party, as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand and any Purchaser Indemnitees on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by such Purchaser Indemnitees
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by PRO RATA allocation
(even if such indemnified parties were treated as one entity for such purpose),
or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph 6(d) above. The amount paid or payable
by an Indemnified Party as a result of any Liabilities referred to paragraph
6(d) shall be
16
deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall a
Purchaser Indemnitee be required to contribute any amount in excess of the
amount by which proceeds received by such Purchaser Indemnitee from sales of
Registrable Shares exceeds the amount of any damages that such Purchaser
Indemnitee has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. For purposes of
this Section 6, each Person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act) the Initial
Purchaser or a Holder of Registrable Shares shall have the same rights to
contribution as such Initial Purchaser or Holder, as the case may be, and
each Person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act) the Company, and each officer,
director, partner, employee, representative, agent or manager of the Company
shall have the same rights to contribution as the Company. Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 6 or otherwise, except to the extent that any party is materially
prejudiced by the failure to give notice. 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.
(f) The indemnity and contribution agreements contained in this
Section 6 will be in addition to any liability which the indemnifying parties
may otherwise have to the indemnified parties referred to above. The Purchaser
Indemnitee's obligations to contribute pursuant to this Section 6 are several in
proportion to the respective number of Shares sold by each of the Purchaser
Indemnitees hereunder and not joint.
7. MARKET STAND-OFF AGREEMENT
Each Holder hereby agrees that it shall not, to the extent requested by
the Company or an underwriter of securities of the Company, sell or otherwise
transfer or dispose of any Registrable Shares or other shares of Common Stock of
the Company or any securities convertible into or exchangeable or exercisable
for shares of Common Stock of the Company then owned by such Holder (other than
to donees or partners of the Holder who agree to be similarly bound) within
thirty (30) days prior to and one hundred eighty (180) days following either (x)
the effective date of an IPO Registration Statement of the Company filed under
the Securities Act or (y) the date of an Underwritten Offering pursuant to a
Shelf Registration Statement of the Company filed under the Securities Act;
PROVIDED, HOWEVER, that:
(a) with respect to the 180-day restriction that follows the
effective date of an IPO Registration Statement, such agreement shall be
applicable only to the first such Registration Statement of the Company that
covers securities to be sold on its behalf to the public in an Underwritten
Offering but not to Registrable Shares sold pursuant to such Registration
Statement; and
17
(b) all executive officers and directors of the Company then
holding shares of Common Stock of the Company or securities convertible into or
exchangeable or exercisable for shares of Common Stock of the Company enter into
similar agreements.
In order to enforce the foregoing covenant, the Company shall have the
right to place restrictive legends on the certificates representing the
securities subject to this Section 7 and to impose stop transfer instructions
with respect to the Registrable Shares and such other securities of each Holder
(and the securities of every other Person subject to the foregoing restriction)
until the end of such period.
8. TERMINATION OF THE COMPANY'S OBLIGATION
The Company shall have no obligation pursuant to this Agreement with
respect to any Registrable Shares proposed to be sold by a Holder in a
registration pursuant to this Agreement if, in the opinion of counsel to the
Company, all such Registrable Shares proposed to be sold by a Holder may be sold
in a three-month period without registration under the Securities Act pursuant
to Rule 144 under the Securities Act.
9. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
From and after the date of this Agreement, the Company shall not,
without the prior written consent of the Holders of a majority of the then
outstanding Registrable Shares, enter into any agreement with any holder or
prospective holder of any securities of the Company that would allow such holder
or prospective holder (a) to include such securities in any Registration
Statement filed pursuant to the terms hereof, unless under the terms of such
agreement, such holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of his securities will
not reduce the amount of Registrable Shares of the Holders that is included, or
(b) to have his securities registered on a registration statement that could be
declared effective prior to, or within one hundred twenty (120) days of, the
effective date of any Registration Statement filed pursuant to this Agreement.
10. MISCELLANEOUS
(a) REMEDIES. In the event of a breach by the Company of any of
its obligations under this Agreement, each Holder of Registrable Shares, in
addition to being entitled to exercise all rights provided herein or, in the
case of the Initial Purchaser, in the Offering Purchase Agreement, or granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. Subject to Section 6, the Company agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
further agree that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law would be
adequate.
(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 or departures from the provisions
hereof may not be given, without the written consent of the Company and Holders
beneficially owning not less than fifty percent (50%) of the
18
then outstanding Registrable Shares; PROVIDED, HOWEVER, that for purposes of
this Agreement, Registrable Shares that are owned, directly or indirectly, by
an Affiliate of the Company shall not be deemed to be outstanding.
Notwithstanding the foregoing, a waiver or consent to or departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of a Holder whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders may be given by such Holder; PROVIDED
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(c) NOTICES. All notices and other communications, provided for or
permitted hereunder shall be made in writing by delivered by facsimile (with
receipt confirmed), overnight courier or registered or certified mail, return
receipt requested, or by telegram
(i) if to a Holder of Registrable Shares, at the most
current address given by the transfer agent and registrar of the Shares
to the Company; and
(ii) if to the Company at the offices of the Company at
0000 Xxx Xxxx, Xxxx Xxxxx, XX 00000 Attention: Xxxxxxx X. Xxxxxx;
(facsimile: 804-967-5826) with a copy to Xxxxxxx X. Xxxxxxxx at the
same address (facsimile: 804-217-7679).
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including, without limitation and without the need for an express
assignment or assumption, subsequent Holders of Registrable Shares. The Company
agrees that the Holders shall be third party beneficiaries to the agreements
made hereunder by the Initial Purchaser and the Company, and each Holder shall
have the right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights hereunder; PROVIDED,
HOWEVER, that such Holder fulfills all of its obligations hereunder.
(e) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate 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.
(f) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, AS
APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE COMMONWEALTH OF VIRGINIA,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE COURT IN THE
COMMONWEALTH OF VIRGINIA OR ANY FEDERAL COURT SITTING IN VIRGINIA IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR
19
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW,
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM
THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(h) SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, 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 best 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 declared
to be the intention of the parties hereto 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.
(i) ENTIRE AGREEMENT. This Agreement, together with the Offering
Purchase Agreement, is intended by the parties hereto as a final expression of
their agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein.
(j) REGISTRABLE SHARES HELD BY THE COMPANY OR ITS AFFILIATES.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Shares is required hereunder, Registrable Shares held by the Company
or its Affiliates shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) SURVIVAL. This Agreement is intended to survive the
consummation of the transactions contemplated by the Offering Purchase
Agreement. The indemnification and contribution obligations under Section 6 of
this Agreement shall survive the termination of the Company's obligations under
Section 2 of this Agreement.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SAXON CAPITAL ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Managing Director
21
