REGISTRATION RIGHTS AGREEMENT
THIS AGREEMENT is made and entered into as of this 28th
day of February, 1997, by and among SUBURBAN LODGES OF AMERICA,
INC., a Georgia corporation (the "Company"), and the persons
whose names appear in the signature pages hereto under the
caption "Shareholders" (collectively, the "Shareholders" and
individually a "Shareholder").
W I T N E S S E T H:
WHEREAS, in connection with the acquisition of four
Suburban Lodge extended stay hotels from Lodge Partners I, L. P,
Lodge Partners II, L.P, Lodge Partners III, L.P., and Lodge
Partners IV, L.P., the Company issued ________________ shares of
its common stock, par value $0.01 per share, to the Shareholders
(such shares are referred to herein as the "Shares"); and
WHEREAS, the Shares have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"); and
WHEREAS, the Shareholders may desire to register some
or all of the Shares under the Securities Act at a future date;
and
WHEREAS, the Company has previously granted "piggyback"
registration rights with respect to _______________ shares of its
common stock, par value $0.01 per share (the "Initial Registrable
Shares") pursuant to that certain Registration Rights Agreement
dated May ___, 1996, among the Company and the signatories
thereto (collectively, the "Initial Shareholders"); and
WHEREAS, the parties hereto desire to provide the
Shareholders with certain demand and "piggyback" registration
rights with respect to the sale of all or a portion of the
Shares;
NOW, THEREFORE, for and in consideration of the
premises and the mutual covenants and agreements contained
herein, and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Definitions. As used herein, unless the context
otherwise requires, the following capitalized terms shall have
the meanings set forth below:
(a) "Commission" means the Securities and Exchange
Commission or any other Federal agency at the time administering
the Securities Act.
(b) "Common Stock" means the Company's common stock,
par value $0.01 per share.
(c) "Exchange Act" means the Securities Exchange Act
of 1934, as amended (or any similar successor statute), and the
rules and regulations thereunder, all as the same shall be in
effect at the time.
(d) "Person" means any individual, corporation,
association, partnership, business trust, joint stock company,
limited liability company, unincorporated association, joint
venture or other entity, or governmental or political subdivision
or agency thereof.
(e) "Registrable Securities" means the Shares and any
other securities issued or issuable in respect of or in exchange
for any of the Shares by way of a stock dividend or other
distribution on the Shares, stock split or in connection with a
combination of shares, recapitalization, merger, consolidation,
reclassification or exchange offer.
(f) "Piggyback Registration Expenses" means all
expenses incident to the Company's performance of or compliance
with Article 3, including, without limitation, all Commission
filing fees and National Association of Securities Dealers, Inc.
or stock exchange listing fees, all fees and expenses of
complying with state securities or blue sky laws, all printing
expenses, the fees and disbursements of counsel for the Company
and of its independent public accountants, including the expenses
of any special audits or "cold comfort" letters required by or
incident to such performance and compliance; provided, however,
that Piggyback Registration Expenses do not include (i) the fees
and costs of counsel and advisors to the selling Shareholders,
(ii) underwriting discounts and commissions, and (iii) transfer
taxes, if any, relating to sale of shares by the Shareholders.
2. Demand Registration under the Securities Act.
2.1 Number and Timing of Request. At any time during
the eight month period immediately following June 30, 1997, the
holders of Registrable Securities constituting at least eighty
percent (80%) of the total number of Registrable Securities then
outstanding may request the Company to register under the
Securities Act all of the Registrable Securities held by such
requesting holder(s). The holders of the Registrable Securities
may make only one such request. Promptly following receipt of any
request under this Section 2.1, the Company shall immediately
notify all other Shareholders, and shall use its reasonable best
efforts to register under the Securities Act, for public sale in
the manner specified in Section 2.4, the total number of shares
of Registrable Securities specified in the original request and
in any requests received from the other Shareholders within
twenty (20) days after receipt of such notice from the Company.
2.2 Right to Delay Registration. If, at the time the
Company receives a request for registration under this Article 2,
in the good faith judgment of a majority of the disinterested
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members of the board of directors of the Company an undisclosed
material event has occurred and is continuing or is likely to
occur within ninety (90) days and public disclosure thereof would
have a material adverse affect on the Company or on the proposed
material transaction involving the Company, then the Company may,
at its option, delay the imposition of its obligations under this
Article 2 for up to sixty (60) days; provided, however, if the
Company elects to delay such obligations, the holders of a
majority of the Registrable Securities requesting such
registration may elect to withdraw such registration request,
and, if such request is withdrawn, such request shall not count
as a request hereunder.
2.3 Other Securities. The Company shall be entitled
to include in any registration statement referred to in this
Article 2, for sale in the manner specified herein, shares of
Common Stock to be sold by or for the account of other Persons
who may then be holding "piggyback" registration rights,
including, without limitation the Initial Shareholders.
2.4 Registration Procedure. If and whenever the
Company is required to effect the registration of any Registrable
Securities under the Securities Act as provided in this Article
2, the Company will as expeditiously as possible:
(a) prepare and file with the Commission a
registration statement on Form S-3 under the Securities Act
(or its equivalent) and use its best efforts to cause such
registration statement to become and remain effective
through the one year anniversary of the date of this
Agreement. Such registration statement shall be filed as a
"shelf registration" pursuant to Rule 415 promulgated under
the Securities Act, providing for the sale of shares
included therein on a delayed or continuous basis;
(b) prepare and file with the Commission such
amendments and supplements to such registration and the
prospectus used in connection therewith as may be necessary
to comply with the provisions of the Securities Act with
respect to the disposition of the Registrable Securities
covered by such registration statement, including, such
amendments and supplements as may be necessary to reflect
the intended method of disposition;
(c) use its best efforts to cause such
registration statement to be declared effective by the
Commission under the Securities Act as soon as practicable
to permit the disposition of the Registrable Securities by
the holders thereof in regular way transactions effected
without solicitation of the buyer on The Nasdaq National
Market or such other exchange or market upon which the
Company's shares are traded;
(d) use its best efforts to register or qualify
(or to secure an exemption therefrom) all Registrable
Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the
sellers thereof shall reasonably request. The foregoing
shall not obligate the Company (i) to qualify generally to
do business as a foreign corporation in any jurisdiction in
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which it is not otherwise so qualified or subject or (ii) to
consent to service of process in any such jurisdiction or to
subject itself to taxation in any such jurisdiction;
(e) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered
by such registration statement from and after the effective
date of such registration statement; and
(f) if the Company shall list or maintain the
listing of any shares of Common Stock on any securities
exchange or national market system, use its best efforts to
list all Registrable Securities covered by such registration
statement on any securities exchange or national market
system on which any of the Registrable Securities are then
listed.
2.5 Underwriter; Expenses. (a) No underwriter shall
be used in connection with any registration under this Article 2,
and the Company shall select counsel and accountants to prepare
the registration statement requested hereunder.
(b) The Company and the Shareholders requesting
registration hereunder shall each pay fifty percent (50%) of the
expenses incident to the Company's performance of or compliance
with this Article 2, including, without limitation, all National
Association of Securities Dealers, Inc. or stock exchange listing
fees, all fees and expenses of complying with state securities or
blue sky laws, all printing expenses, the fees and disbursements
of counsel for the Company and of its independent public
accountants, including the expenses of any special audits or
"cold comfort" letters required by or incident to such
performance and compliance; provided, however, that the Company's
obligations under this Article 2 shall not exceed $25,000, and
the selling Shareholders shall pay all other such expenses;
provided, further, that the selling Shareholders shall be solely
responsible for any and all Commission filing fees and brokerage
commissions incurred in connection with the exercise of such
demand rights.
3. "Piggyback" Registration Under the Securities Act.
3.1 "Piggyback Rights.
(a) Right to Include Registrable Securities. If
the Company at any time after the date which is four months after
the date hereof and prior to the third anniversary of the date
hereof proposes to register any of its securities under the
Securities Act in connection with a public offering of Common
Stock (other than by a registration on Form X-0, Xxxx X-0 or any
successor or similar forms) whether or not for sale for its own
account, then it shall give written notice to all holders of
Registrable Securities of the proposed filing, and the notice
shall inform such holders of their rights under this SECTION 3.1.
Upon the written request of any such holder, made within thirty
(30) days after receipt of any such notice by the Company, to
register any of its Registrable Securities (which request shall
specify the Registrable Securities intended to be disposed of by
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such holder), the Company will use its best efforts to cause such
Registrable Securities to be included among the securities to be
covered by the registration statement otherwise proposed to be
filed by the Company, all to the extent requisite to permit the
sale or other disposition of such Registrable Securities by the
holder. Anything herein to the contrary notwithstanding, if at
any time after giving written notice of its intention to register
any securities and prior to the effective date of the
registration statement filed in connection with such
registration, the Company shall in good faith determine for any
reason not to register or to delay registration of such
securities, then the Company may, at its election, give written
notice of such determination to each holder of Registrable
Securities and, thereupon, (i) in the case of a determination not
to register, shall be relieved of its obligation under this
Section 3.1 to register any Registrable Securities in connection
with such registration (but not from its obligation to pay the
Piggyback Registration Expenses in connection therewith), and
(ii) in the case of a determination to delay registration, shall
be permitted to delay the registration of any Registrable
Securities, for the same period as the delay in registering such
other securities. Any holder of Registrable Securities may
withdraw its request for inclusion, in whole or in part, at any
time at least forty-eight (48) hours prior to the effective time
of the registration statement for such offering. The Company will
pay all Piggyback Registration Expenses in connection with each
registration of Registrable Securities requested pursuant to this
Section 3.1; provided that such fees or expenses for which the
Company shall not be liable shall be borne by all holders pro
rata on the basis of the amount of securities so registered;
provided, however, that if any such cost or expense is
attributable solely to one selling Shareholder and does not
constitute a normal cost or expense of such a registration, such
cost or expense shall be allocated to that selling Shareholder.
(b) Priority. In connection with any underwritten
offering of Common Stock being issued by the Company, the Company
shall not be required under Section 3.1(a) to include any
holder's Registrable Securities in such offering unless such
holder accepts the terms of the underwriting agreement with
respect to such offering as agreed upon between the Company and
the underwriters, and then only in such quantity as will not, in
the opinion of the underwriters, jeopardize the success of the
offering by the Company. If the underwriters of such
underwritten offering inform the Company in writing that in their
opinion the number of Registrable Securities requested to be
included in such registration statement exceeds the number that
can be sold in (or during the time of) such offering, or that the
inclusion of the Registrable Securities would materially
adversely affect the marketing of the securities to be sold by
the Company therein, then the Company may include all securities
proposed by the Company to be sold for its own account in the
offering and reduce the number of Registrable Securities
requested to be included in the offering and the number of
securities of all other shareholders of the Company to be
included in such registration (pro rata among all selling
shareholders, including, without limitation, all holders of the
Initial Registrable Shares electing to sell their shares, or in
such other proportions as may be mutually agreed to by all of the
selling shareholders) to the extent necessary to reduce the
number of securities to be included in the registration to the
level recommended by the underwriters.
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(c) Lock-up Agreements. Each holder of
Registrable Securities to be distributed by the underwriters in
any underwritten offering under this Section 3.1 agrees, if so
required by such underwriters, not to effect any sale or
distribution of any equity securities of the Company during a
period of up to 180 days (or such shorter period as may be agreed
by such underwriters with any other holder of shares of Common
Stock or of any right to purchase shares of Common Stock)
beginning on the effective date of any underwritten registration
in which his securities are included (except as part of such
underwritten offering).
(d) Delay of Registration. No holder of
Registrable Securities shall have any right to take any action to
restrain, enjoin or otherwise delay any registration as the
result of any controversy that might arise with respect to the
interpretation or implementation of this Agreement.
3.2 Registration Procedures. If and whenever the
Company is required to use its best efforts to effect the
registration of any Registrable Securities under the Securities
Act as provided in Section 3.1, the Company will as expeditiously
as possible:
(a) prepare and file with the Commission the
appropriate registration statement to effect such
registration and use its best efforts to cause such
registration statement to become and remain effective for
the period of the disposition contemplated thereby;
provided, however, that the Company may discontinue any
registration of its securities which are not Registrable
Securities (and, under the circumstances specified in
Section 3.1(a), its securities which are Registrable
Securities) at any time prior to the effective date of the
registration statement relating thereto;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be
necessary to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable
Securities covered by such registration statement, including
such amendments and supplements as may be necessary to
reflect the intended method of disposition;
(c) use its best efforts to cause such
registration statement to be declared effective by the
Commission under the Securities Act as soon as practicable
to permit the disposition of the Registrable Securities by
the holders thereof in regular way transactions effected
without solicitation of the buyer on The Nasdaq National
Market or such other exchange or market upon which the
Company's shares are traded;
(d) use its best efforts to register or qualify
(or to secure an exemption therefrom) all Registrable
Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the
sellers thereof shall reasonably request. The foregoing
shall not obligate the Company (i) to qualify generally to
do business as a foreign corporation in any jurisdiction in
which it is not otherwise so qualified or subject or (ii) to
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consent to service of process in any such jurisdiction or to
subject itself to taxation in any such jurisdiction;
(e) provide and cause to be maintained a transfer
agent and registrar for all Registrable Securities covered
by such registration statement from and after the effective
date of such registration statement; and
(f) if the Company shall list or maintain the
listing of any shares of common stock on any securities
exchange or national market system, use its best efforts to
list all Registrable Securities covered by such registration
statement on any securities exchange or national market
system on which any of the Registrable Securities are then
listed.
4. Restrictive Legend. Each certificate representing
Registrable Securities issued, and, except as otherwise provided
in Section 5, each certificate issued upon exchange or transfer
of any Registrable Securities, shall be stamped or otherwise
imprinted with a legend substantially in the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "FEDERAL ACT"),
OR ANY STATE SECURITIES LAW, AND HAVE BEEN
ACQUIRED BY THE REGISTERED OWNER HEREOF FOR
PURPOSES OF INVESTMENT AND HAVE BEEN ISSUED
OR SOLD IN RELIANCE ON STATUTORY EXEMPTIONS
CONTAINED IN THE FEDERAL ACT OR AVAILABLE
UNDER APPLICABLE STATE SECURITIES LAWS. THE
SHARES MAY NOT BE SOLD, TRANSFERRED, OR
OTHERWISE DISPOSED OF EXCEPT IN A TRANSACTION
WHICH IS EXEMPT UNDER THE FEDERAL ACT AND ANY
OTHER APPLICABLE STATE SECURITIES LAWS OR
PURSUANT TO AN EFFECTIVE REGISTRATION UNDER
SUCH ACT AND LAWS; IN THE CASE OF RELIANCE
UPON AN EXEMPTION, THE COMPANY MUST HAVE
RECEIVED AN OPINION OF COUNSEL SATISFACTORY
TO IT THAT SUCH TRANSACTION IS EXEMPT AND
DOES NOT REQUIRE SUCH REGISTRATION OF THE
SHARES."
5. Notice of Proposed Transfer.
(a) Prior to any proposed transfer or other
disposition of any Registrable Security (other than under
circumstances described in Sections 2 or 3), the holder thereof
shall give written notice to the Company of its intention to do
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so. Each such notice shall describe the manner of the proposed
transfer or disposition and, if requested by the Company, shall
be accompanied by an opinion of counsel reasonably satisfactory
to the Company to the effect that the proposed transaction may be
effected without registration under the Securities Act and
applicable state securities laws, whereupon the holder shall be
entitled to transfer or otherwise dispose of such Registrable
Security in accordance with the terms of its notice. Each
certificate for Registrable Securities transferred as provided
above shall bear the legend set forth in SECTION 4, except that
such certificate shall not bear such legend if (a) such transfer
is in accordance with the provisions of Rule 144 under the
Securities Act (or any other rule under the Securities Act
permitting public sale without registration thereunder) or (b)
the opinion of counsel referred to above is to the further effect
that the transferee and any subsequent transferee (other than an
affiliate of the Company) would be entitled to transfer such
securities in a public sale without registration under the
Securities Act or any applicable state securities law.
(b) The foregoing restrictions on transfer and
disposition of Registrable Securities shall terminate as to any
particular shares of Registrable Securities when such shares
shall have been effectively registered under the Securities Act
and sold or otherwise disposed by the seller thereof in
accordance with the method of disposition set forth in the
registration statement covering such shares. Whenever a holder
of Registrable Securities demonstrates to the Company (and its
counsel) that the provisions of Rule 144(k) of the Securities Act
are available to such holder without limitation, such holder
shall be entitled to receive from the Company, without expense, a
new certificate representing its shares of Registrable Securities
not bearing the restrictive legend set forth in SECTION 4.
6. Indemnification.
6.1 Indemnification by the Company. In the event of
any registration of any Registrable Securities under the
Securities Act, the Company will indemnify and hold harmless each
seller of Registrable Securities covered by such registration
statement, each of their respective officers, directors and
partners and each other Person, if any, who controls such seller,
within the meaning of Section 15 of the Securities Act, from and
against any losses, claims, damages or liabilities, joint or
several, to which such seller, director, officer, partner or
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material
fact contained in any registration statement under which such
Registered Securities were registered under the Securities Act,
any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement
thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or arise out of or are
based upon any violation by the Company of any rule or regulation
or any action or inaction required by the Company in connection
with such registration and the Company will reimburse each such
seller, director, officer, partner and controlling person for any
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legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company
shall not be liable in any such case if and to the extent that
any such loss, claim, damage or liability (or action in respect
thereof) arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made or
omitted in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or
supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of such
seller, director, officer, partner or such controlling person
specifically for use in such registration statement, prospectus,
amendment or supplement, and, provided, further, that the Company
shall not be liable to any Person who participates as an
underwriter in the offering or sale of Registrable Securities or
any other Person, if any, who controls such underwriter, within
the meaning of the Securities Act, in any such case to the extent
that any such loss, claim, damage or liability (or action in
respect thereof) arises out of such Person's failure to send or
give a copy of the final prospectus on file with the Commission
at the time the registration statement becomes effective or in
the amended prospectus filed with the Commission pursuant to Rule
424(b) or any successor rule, as the same may be then
supplemented or amended, to the Person asserting an untrue
statement or alleged untrue statement or omission or alleged
omission, at or prior to the written confirmation of the sale of
Registrable Securities to such Person if such statement or
omission was corrected in such final prospectus and if under
applicable law a copy of such final prospectus was required to
have been given or sent to such Person by or on behalf of such
underwriter. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of
such seller, director, officer, partner or controlling person and
shall survive the transfer of such securities by such seller.
6.2 Indemnification by the Sellers. Each holder of
Registrable Securities that are registered by the Company
pursuant to Article 2 or 3 will, severally and not jointly,
indemnify and hold harmless the Company, each director of the
Company, each officer of the Company and each other Person, if
any, who controls the Company within the meaning of the
Securities Act, from and against any losses, claims, damages or
liabilities, joint or several, to which the Company, or any such
director, officer or controlling Person may become subject under
the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any registration
statement under which such Registered Securities were registered
under the Securities Act, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, or omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, if such
statement or alleged statement or omission or alleged omission
was made in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of such
seller in connection with such registration statement,
prospectus, amendment or supplement specifically for use therein.
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Such indemnity shall remain in full force and effect, regardless
of any investigation made by or on behalf of the Company or any
such director, officer or controlling Person and shall survive
the transfer of such securities by such holder. In no event
shall any indemnity by a holder of Registrable Securities exceed
the aggregate price to the public (minus underwriter commissions
and discounts) of the Registrable Securities of such holder
included in such registration.
6.3 Notices of Claims, etc. Promptly after receipt by
an indemnified party of notice of the commencement of any action
or proceeding involving a claim referred to in this Article 6,
such indemnified party will, if a claim in respect thereof is to
be made against an indemnifying party, promptly give written
notice to the latter of the commencement of such action, provided
that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of its
obligations under this Article 6, except and to the extent that
the indemnifying party is prejudiced by such failure to give
notice. In case any such action is brought against an
indemnified party, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with
any other indemnifying party similarly notified to the extent
that it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party
to such indemnified party of its election to assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently
incurred by the latter in connection with the defense thereof
other than reasonable out-of-pocket costs of investigation and of
liaison with counsel so selected, provided, however, that, if the
defendants in any such action include both the indemnified party
and the indemnifying party and the counsel for the indemnified
party reasonably concludes that there may be a conflict of
interest between the indemnifying party and the indemnified party
in the conduct of the defense of such action and has advised the
indemnified party in writing, that such a conflict of interest
exists, the indemnified party shall have the right to select
separate counsel and to assume such legal defenses and otherwise
to participate in the defense of such action, with the expenses
and fees of such separate counsel and other expenses related to
such participation to be reimbursed by the indemnifying party as
incurred. No indemnifying party shall, without the prior written
consent of the indemnified party, consent to the entry of any
judgment or enter into any settlement with respect to any claim
or action for which indemnity is sought hereunder, and no
indemnifying party shall be liable for any settlement entered
into without its prior written consent.
6.4 Contribution. In order to provide for just and
equitable contribution to joint liability under the Securities
Act in any case in which either (i) any holder of Registrable
Securities exercising rights under this Agreement, or any
controlling person of any such holder, makes a claim for
indemnification pursuant to this ARTICLE 6 but it is judicially
determined (by the entry of a final judgment or decree by a court
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of competent jurisdiction and the expiration of time to appeal or
the denial of the last right of appeal) that such indemnification
may not be enforced in such case notwithstanding the fact that
this Article 6 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the part
of any such selling holder or any such controlling person in
circumstances for which indemnification is provided under this
Article 6; then, and in each such case, the Company and such
holder will contribute to the aggregate losses, claims, damages
or liabilities to which they may be subject (after contribution
from others) (A) in such proportion so that such holder is
responsible for the portion represented by the percentage that
the public offering price of its Registrable Securities offered
by the registration statement bears to the public offering price
of all securities offered by such registration statement, and the
Company is responsible for the remaining portion or (B) if the
allocation provided by clause (A) above is not permitted by
applicable law, in such proportion as is appropriate to reflect
not only the relative proceeds but also the relative fault of
each of the contributing parties, on the one hand, and the party
receiving contribution on the other hand in connection with
statements or omissions that resulted in such losses, claims,
damages, expenses or liabilities, as well as any other relevant
equitable considerations; provided, however, that, in any such
case, (X) no such holder will be required to contribute any
amount in excess of the public offering price of all such
Registrable Securities offered by it pursuant to such
registration statement; and (Y) no person or entity guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) will be entitled to contribution from any
person or entity who was not guilty of such fraudulent
misrepresentation. Relative fault shall be determined by
reference to, among 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 the holder, and the relative intent, knowledge,
access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages,
expenses or liabilities (or actions in respect thereof) referred
to above in this SECTION 6.4 shall be deemed to include any legal
or other expenses reasonably incurred by a party entitled to
contribution in connection with investigating or defending such
action or claim. Any party entitled to contribution will
promptly, after receipt of notice of commencement of any action
or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under
this Section 6.4, notify such party or parties from whom
contribution may be sought, but the omission so to 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 hereunder or otherwise than under this Section 6.4, to the
extent that such party or parties were not adversely affected by
such omission. The contribution agreement set forth above shall
be in addition to any liabilities which any party may have at
common law or otherwise. The contribution provided for in this
Section 6.4 shall survive the termination of this Agreement and
shall remain in full force and effect regardless of any
investigation made by or on behalf of any indemnified party.
7. Obligations of Sellers. In connection with each
registration hereunder, and as a condition to the Company's
obligations hereunder to any selling Shareholder, each seller of
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Registrable Securities will furnish to the Company in writing
such information with respect to such seller and its proposed
disposition as shall be reasonably necessary in order to insure
compliance with the Securities Act and with all other federal and
applicable state securities laws. Without limiting the
generality of the foregoing, in connection with each registration
covering an underwritten public offering, each seller of
Registrable Securities agrees to enter into the underwriting
agreement between the Company and such underwriters and to
complete and execute all questionnaires, powers of attorney, and
other documents or instruments reasonably requested under the
terms of the underwriting agreement. Further, no such 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,
such holder's Registrable Securities and such holder's intended
method of distribution, and other information supplied in writing
by such holder to the Company specifically for use in the
applicable registration statement and any other representation
required by applicable law.
8. Amendments and Waivers. This Agreement may be
amended and the Company may take any action herein prohibited or
omit to perform any act required herein to be performed by it, if
the Company has obtained the written consent of the holders of
fifty percent (50%) or more of the Registrable Securities (by
number of shares). Each holder of any Registrable Securities at
the time or thereafter outstanding shall be bound by any consent
authorized by this Section 8, whether such Registrable Securities
shall have been marked to indicate such consent.
9. Inconsistent Agreements. Nothing contained herein
shall limit or restrict the Company's right to grant registration
rights to other Persons.
10. Notices. Except as otherwise provided in this
Agreement, all notices and other communications hereunder shall
be in writing and delivered personally, sent by pre-paid, first
class, certified or registered airmail, return receipt requested
or by an express courier service to the intended recipient
thereof at its address set forth below. Any such notice shall be
deemed to have been duly given immediately upon delivery in
person, or five days after mailing (or the second day after
delivery to an express courier service), and in proving the same
it shall be sufficient to show that the envelope containing the
notice was duly addressed, stamped and posted or that the
envelope was delivered to an express courier service, as the case
may be. The addresses of the parties for the purposes of this
Agreement are as follows:
If to Company: Suburban Lodges of America, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Secretary
with copy to: Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
12
If to holders of
the Registrable
Securities: At their respective addresses of
record as maintained on the stock
records of the Company
11. Headings. The headings of the several articles
and sections of this Agreement are inserted for convenience of
reference only. They do not constitute a part of this Agreement
and shall not limit or otherwise affect the meaning or
interpretation of any provision hereof.
12. Governing Law. This Agreement has been executed
and delivered in the State of Georgia and shall be construed and
enforced in accordance with, and the rights of the parties shall
be governed by, the laws of the State of Georgia.
13. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original, and all such counterparts shall together constitute one
and the same instrument.
14. Severability. Whenever possible, each provision
of this Agreement shall be interpreted in such a manner as to be
effective and valid under applicable law, but if any provision of
this Agreement is held to be invalid, illegal or unenforceable
under any applicable law or rule in any jurisdiction, such
provision will be ineffective only to the extent of such
invalidity, illegality or unenforceability in such jurisdiction,
without invalidating the remainder of this Agreement in such
jurisdiction or any other provision hereof in any other
jurisdiction.
15. Entire Agreement. 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 of 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 the party entitled to the benefit of the provision against
whom enforcement is sought.
16. 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 any
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 or further
exercise thereof or the exercise of any other right, power or
remedy. No waiver by any party hereto of 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.
17. Number and 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.
13
18. Resale of Registrable Securities. Each of the
undersigned Shareholders convenants and agrees that any of the
Registrable Securities that he/she sells pursuant to Article 2
hereof, shall be sold only through one or more of the following
named market makers in the Company's common stock, Xxxxxxxxxx
Securities, Xxxxx Xxxxxx or X.X. Xxxxxxxx.
[Signatures Appear on Following Page]
14
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
SUBURBAN LODGES OF AMERICA, INC.
By: /s/ Xxxxx X. Xxxxxxxx
(CORPORATE SEAL) Name: Xxxxx X. Xxxxxxxx
Title: Chairman of the Board, Chief
Executive Officer and President
SHAREHOLDERS:
[readable] /s/ Xxxxxxx X. Xxxxxx
Witness XXXXXXX X. XXXXXX
[unreadable] /s/ Xxxxxx Xxx Xxxxxx
Witness XXXXXX XXX XXXXXX
[unreadable] /s/ Xxxxx Xxxxxxx
Witness XXXXX XXXXXXX
[unreadable] /s/ Xxxxxx X. Xxxxx, Xx.
Witness XXXXXX X. XXXXX, XX.
15
