REGISTRATION RIGHTS AGREEMENT
Exhibit
10.15
This
Registration Rights Agreement (the “Agreement”),
is
entered into as of the 28th day of September, 2006, by and among Across America
Real Estate Corp., a Colorado corporation (the “Company”)
and
BOCO Investments, LLC, a Colorado limited liability company and GDBA
Investments, LLLP, a Colorado limited liability limited partnership and Xxxxxx
X. Xxxxxxx (each, a “Series
A Holder”
and,
together, the “Series
A Holders”).
Recitals
WHEREAS,
the Company the Series A Holders are parties to that certain Securities Purchase
Agreement dated September 28, 2006 (the “Purchase
Agreement”);
and
WHEREAS,
as a condition of closing the transactions contemplated by the Purchase
Agreement, the Company has agreed to provide the Series A Holders with
registration rights as set forth below.
NOW,
THEREFORE, in consideration of the mutual promises and covenants contained
herein and for other valuable consideration, receipt of which is hereby
acknowledged, the parties hereto hereby agree with each other as
follows:
1. Certain
Definitions.
As
used
in this Agreement, the following terms shall have the following respective
meanings:
(a) “Business
Day”
means
any day other than a Saturday, Sunday or a day on which banking institutions
are
closed in the State of Colorado.
(b) “Commission”
means
the Securities and Exchange Commission, or any other federal agency at the
time
administering the Securities Act.
(c) “Common
Stock”
means
the common stock, $0.001 par value per share, of the Company.
(d) “Exchange
Act”
means
the Securities Exchange Act of 1934, as amended, or any successor federal
statute, and the rules and regulations of the Commission issued under such
Act,
as they each may, from time to time, be in effect.
(e) “Initiating
Holders”
means
the Shareholders initiating a request for registration pursuant to Section
2.1(a), 2.1(b) or 2.1(c), as the case may be.
(g) “Other
Holders”
shall
mean holders of securities of the Company (other than the Shareholders) who
are
entitled, by contract with the Company, to have securities included in a
Registration Statement.
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(h) “Prospectus”
means
the prospectus included in any Registration Statement, as amended or
supplemented by an amendment or prospectus supplement, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
(i) “Registration
Expenses”
means
the expenses described in Section 2.4.
(j) “Registrable
Shares”
means
the shares of Common Stock issued or issuable upon conversion of the Shares
and
any other shares of Common Stock issued in respect of such shares because of
stock splits, stock dividends, reclassifications, recapitalizations, or similar
events; provided,
however,
that
shares of Common Stock which are Registrable Shares shall cease to be
Registrable Shares upon any sale pursuant to a Registration Statement or Rule
144 under the Securities Act. Wherever reference is made in this Agreement
to a
request or consent of holders of a certain percentage of Registrable Shares,
the
determination of such percentage shall include shares of Common Stock issuable
upon conversion of the Shares even if such conversion has not been
effected.
(k) “Registration
Statement”
means
a
registration statement filed under the Securities Act, other than a registration
statement on Form S-8 or Form S-4 (or any successor form).
(l) “Securities
Act”
means
the Securities Act of 1933, as amended, or any successor federal statute, and
the rules and regulations of the Commission issued under such Act, as they
each
may, from time to time, be in effect.
(m) “Selling
Shareholder”
means
any Shareholder owning Registrable Shares included in a Registration
Statement.
(n) “Shares”
means
all shares of Series A Preferred Stock.
(o) “Shareholders”
means
the Series A Holders, any Other Holders and any persons or entities to whom
the
rights granted under this Agreement are transferred or acquired by any Series
A
Holders or Other Holders, their successors or assigns pursuant to Section 3
hereof.
(p) “’33
Act Offering”
means
an underwritten public offering of shares of Common Stock pursuant to an
effective Registration Statement.
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2. Registration
Rights.
2.1 Demand
Registrations.
(a) At
any
time beginning six months after the closing of a ‘33 Act Offering, the
Series A Holders holding in the aggregate at least fifty percent (50%) of
the Registrable Shares may request, in writing, that the Company effect the
registration on Form S-1 (or any successor form), under the Securities Act
of
the Registrable Shares owned by such Series A Holder.
(b) At
any
time upon receipt of a Mandatory Conversion Notice for the Shares (as defined
in
the Company’s Articles of Incorporation, as amended), the Series A Holder
receiving such notice may request, in writing, that the Company effect the
registration on Form S-1 (or any successor form), under the Securities Act
of
the Registrable Shares owned by such Series A Holder.
(c) At
any
time after the Company becomes eligible to file a Registration Statement on
Form
S-3 (or any successor form relating to secondary offerings), the Series A
Holders holding in the aggregate at least fifty percent (50%) of the Registrable
Shares may request, in writing, that the Company effect the registration on
Form
S-3 (or such successor form), of such Series A Holder’s Registrable
Shares.
(d) Upon
receipt of any request for registration under the Securities Act pursuant to
this Section 2, the Company shall promptly give written notice of such proposed
registration to all other Shareholders. Such Shareholders shall have the right,
by giving written notice to the Company within thirty (30) days after the
Company provides its notice, to elect to have included in such registration
such
of their Registrable Shares as such Shareholders may request in such notice
of
election, subject in the case of an underwritten offering to the approval of
the
managing underwriter as provided in Section 2.1(e) below. Thereupon, the Company
shall, as expeditiously as possible, use its best efforts to effect the
registration on an appropriate registration form of all Registrable Shares
which
the Company has been requested to so register, provided,
however,
that in
the case of a registration requested under Section 2.1(c), the Company will
only
be obligated to effect such registration on Form S-3 (or any successor
form).
(e) If
the
Initiating Holders intend to distribute the Registrable Shares covered by their
request by means of an underwriting, they shall so advise the Company as a
part
of their request made pursuant to Section 2.1(a), (b) or (c), as the case may
be, and the Company shall include such information in its written notice
referred to in Section 2.1(d). The right of any other Shareholder to include
its
Registrable Shares in such registration pursuant to Section 2.1(a), (b) or
(c),
as the case may be, shall be conditioned upon such other Shareholder’s
participation in such underwriting on the terms set forth herein. If the
managing underwriter determines that the marketing factors require a limitation
of the number of shares to be underwritten, the number of Registrable Shares
to
be included in a Registration Statement filed pursuant to this Section 2.1,
shall be reduced pro rata among the requesting Shareholders based on the
quotient of (1) the total Registrable Shares to be included in the Registration
Statement, divided by (2) the total number of Registrable Shares that requested
registration; provided,
however,
that in
no event shall the
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Shares
to
be sold by the Series A Holders be reduced to below twenty-five percent (25%)
of
the total amount of securities to be included in the registration.
(f) The
Initiating Holders shall have the right to select the managing underwriter(s)
for any underwritten offering requested pursuant to this Section 2.1, subject
to
the approval of the Company, which approval will not be unreasonably
withheld.
(g) The
Company shall not be required to effect more than two (2) registrations pursuant
to Section 2.1(a); provided,
however,
that
the Company shall not be required to effect the second of such two (2)
registrations in the event that (i) the Company is eligible to file a
Registration Statement on Form S-3 (or any successor form), and (ii) the
Shareholders have had the opportunity to register all of their Registrable
Shares under the Securities Act pursuant to Section 2.2 hereof. In addition,
the
Company shall not be required to effect any registration (other than on Form
S-3
or any successor form relating to secondary offerings) (i) within ninety (90)
days after the effective date of any other Registration Statement of the Company
on Form S-1 (or any successor form) or (ii) during the one hundred and eighty
(180) day period commencing with the date of the Company’s initial ‘33 Act
Offering. For purposes of this Section 2.1(g), a Registration Statement shall
not be counted until such time as such Registration Statement has been declared
effective by the Commission and the related sale is consummated (in the case
of
an underwritten offering). There shall be no limitations as to the number of
registrations the Series A Holders may request under Section 2.1(b) or
(c).
(h) If
at the
time of any request to register Registrable Shares by Initiating Holders
pursuant to this Section 2.1, the Company is engaged or has plans to engage
in a
registered public offering or is engaged in any other activity which, in the
good faith determination of the Company’s Board of Directors, would be adversely
affected by the requested registration, then the Company may at its option
direct that such request be delayed for a period not in excess of ninety (90)
days from the date of such request, such right to delay a request to be
exercised by the Company not more than once in any 12-month period.
2.2 Piggyback
Registration.
(a) Whenever
the Company proposes to file a Registration Statement (other than a Registration
Statement filed pursuant to Section 2.1) at any time and from time to time,
it
will, prior to such filing, give written notice to all Shareholders of its
intention to do so. Upon the written request of a Shareholder or Shareholders,
given within twenty (20) days after the Company provides such notice (which
request shall state the intended method of disposition of such Registrable
Shares), the Company shall use its best efforts to cause all Registrable Shares
which the Company has been requested by such Shareholder or Shareholder to
register to be registered under the Securities Act to the extent necessary
to
permit their sale or other disposition in accordance with the intended methods
of distribution specified in the request of such Shareholder or Shareholders;
provided,
however,
that
the Company shall have the right to postpone or withdraw any registration
effected pursuant to this Section 2.2 without obligation to any
Shareholder.
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(b) If
the
registration for which the Company gives notice pursuant to Section 2.2(a)
is a
registered public offering involving an underwriting, the Company shall so
advise the Shareholders as a part of the written notice given pursuant to
Section 2.2(a). In such event, the right of any Shareholder to include its
Registrable Shares in such registration pursuant to Section 2.2 shall be
conditioned upon such Shareholder’s participation in such underwriting on the
terms set forth herein. All Shareholders proposing to distribute their
securities through such underwriting shall (together with the Company, Other
Holders, and any officers or directors distributing their securities through
such underwriting) enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for the underwriting by the Company;
provided,
however,
that
such underwriting agreement shall not provide for indemnification or
contribution obligations on the part of Shareholders materially greater than
the
obligations of the Shareholders pursuant to Section 2.5. Notwithstanding any
other provision of this Section 2.2, if the managing underwriter determines
that
the inclusion of all shares requested to be registered would adversely affect
the offering, the Company may limit the number of Registrable Shares to be
included in the registration and underwriting. The Company shall so advise
all
holders of Registrable Shares requesting registration, and the number of shares
that are entitled to be included in the registration and underwriting shall
be
allocated in the following manner. The securities of the Company held by the
officers and directors of the Company shall be excluded from such registration
and underwriting to the extent deemed advisable by the managing underwriter
and
then, and, if a further limitation on the number of shares is required, the
number of shares that may be included in such registration and underwriting
shall be allocated among all Shareholders and Other Holders requesting
registration in proportion, as nearly as practicable (and subject to a Series
A
Holder’s rights under Section 2.1(d)), to the respective number of shares of
Common Stock (on an as-converted basis) which they held at the time the Company
gives the notice specified in Section 2.2(a); provided,
however,
that
the number of Registrable Shares permitted to be included therein shall in
any
event be at least 50% of the securities included therein (based on aggregate
market values). If any Shareholder or Other Holder would thus be entitled to
include more securities than such holder requested to be registered, the excess
shall be allocated among other requesting Shareholders and Other Holders pro
rata in the manner described in the preceding sentence. If any holder of
Registrable Shares or any Other Holder disapproves of the terms of any such
underwriting, such person may elect to withdraw therefrom by written notice
to
the Company, and any Registrable Shares or other securities excluded or
withdrawn from such underwriting shall be withdrawn from such
registration.
2.3 Registration
Procedures.
(a) If
and
whenever the Company is required by the provisions of this Agreement to use
its
best efforts to effect the registration of any Registrable Shares under the
Securities Act, the Company shall:
(i) file
with
the Commission a Registration Statement with respect to such Registrable Shares
and use its best efforts to cause that Registration Statement to become
effective as soon as possible;
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(ii) as
expeditiously as possible prepare and file with the Commission any amendments
and supplements to the Registration Statement and the prospectus included in
the
Registration Statement as may be necessary to comply with the provisions of
the
Securities Act (including the anti-fraud provisions thereof) and to keep the
Registration Statement effective for 12 months from the effective date or such
lesser period until all such Registrable Shares are sold;
(iii) as
expeditiously as possible furnish to each Selling Shareholder such reasonable
numbers of copies of the Prospectus, including any preliminary Prospectus,
in
conformity with the requirements of the Securities Act, and such other documents
as such Selling Shareholder may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Shares owned by such Selling
Shareholder,
(iv)
as
expeditiously as possible use its best efforts to register or qualify the
Registrable Shares covered by the Registration Statement under the securities
or
“blue sky” laws of such states as the Selling Shareholders shall reasonably
request, and do any and all other acts and things that may be necessary or
desirable to enable the Selling Shareholders to consummate the public sale
or
other disposition in such states of the Registrable Shares owned by the Selling
Shareholder; provided,
however,
that
the Company shall not be required in connection with this paragraph (iv) to
qualify as a foreign corporation or execute a general consent to service of
process in any jurisdiction;
(v) as
expeditiously as possible, cause all such Registrable Shares to be listed on
each securities exchange or automated quotation system on which similar
securities issued by the Company are then listed;
(vi) promptly
provide a transfer agent and registrar for all such Registrable Shares not
later
than the effective date of such registration statement;
(vii) promptly
make available for inspection by the Selling Shareholders, any managing
underwriter participating in any disposition pursuant to such Registration
Statement, and any attorney or accountant or other agent retained by any such
underwriter or selected by the Selling Shareholders, all financial and other
records, pertinent corporate documents and properties of the Company and cause
the Company’s officers, directors, employees and independent accountants to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such Registration
Statement;
(viii) as
expeditiously as possible, notify each Selling Shareholder, promptly after
it
shall receive notice thereof, of the time when such Registration Statement
has
become effective or a supplement to any Prospectus forming a part of such
Registration Statement has been filed; and
(ix) as
expeditiously as possible following the effectiveness of such Registration
Statement, notify each seller of such Registrable Shares of any request by
the
Commission for the amending or supplementing of such Registration Statement
or
Prospectus.
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(b) If
the
Company has delivered a Prospectus to the Selling Shareholders and after having
done so the Prospectus is amended to comply with the requirements of the
Securities Act, the Company shall promptly notify the Selling Shareholders
and,
if requested, the Selling Shareholders shall immediately cease making offers
of
Registrable Shares and return all Prospectuses to the Company. The Company
shall
promptly provide the Selling Shareholders with revised Prospectuses and,
following receipt of the revised Prospectuses, the Selling Shareholders shall
be
free to resume making offers of the Registrable Shares.
(c) In
the
event that, in the judgment of the Company, it is advisable to suspend use
of a
Prospectus included in a Registration Statement due to pending material
developments or other events that have not yet been publicly disclosed and
as to
which the Company believes public disclosure would be detrimental to the
Company, the Company shall notify all Selling Shareholders to such effect,
and,
upon receipt of such notice, each such Selling Shareholder shall immediately
discontinue any sales of Registrable Shares pursuant to such Registration
Statement until such Selling Shareholder has received copies of a supplemented
or amended Prospectus or until such Selling Shareholder is advised in writing
by
the Company that the then current Prospectus may be used and has received copies
of any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. Notwithstanding anything to the
contrary herein, the Company shall not exercise its rights under this Section
2.3(c) to suspend sales of Registrable Shares for a period in excess of ninety
(90) days in any 12-month period.
2.4 Allocation
of Expenses.
The
Company will pay all Registration Expenses for all registrations under this
Agreement; provided,
however,
that if
a registration under Section 2.1 is withdrawn at the request of the Initiating
Holders (other than as a result of information concerning the business or
financial condition of the Company which is made known to the requesting
Shareholders after the date on which such registration was requested) and if
the
Initiating Holders elect not to have such registration counted as a registration
requested under Section 2.1, the requesting Shareholders shall pay the
Registration Expenses of such registration pro rata in accordance with the
number of their Registrable Shares included in such registration. For purposes
of this Section, the term “Registration
Expenses”
shall
mean all expenses incurred by the Company in complying with this Agreement,
including, without limitation, all registration and filing fees, exchange
listing fees, printing expenses, fees and expenses of counsel for the Company
and the fees and expenses of one counsel selected by the Selling Shareholders
to
represent the Selling Shareholders, state “blue sky” fees and expenses, and the
expense of any special audits incident to or required by any such registration,
but excluding underwriting discounts, selling commissions and the fees and
expenses of Selling Shareholders’ own counsel (other than the counsel selected
to represent all Selling Shareholders).
2.5 Indemnification
and Contribution.
(a) In
the
event of any registration of any of the Registrable Shares under the Securities
Act pursuant to this Agreement, the Company will indemnify and hold harmless
the
seller of such Registrable Shares, each underwriter of such Registrable Shares,
and each other person, if any, who controls such seller or underwriter within
the meaning of the Securities Act
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or
the
Exchange Act against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act, the Exchange Act, state securities or “blue
sky” laws 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 Registrable Shares were registered
under
the Securities Act, any preliminary prospectus or final prospectus contained
in
the Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission or alleged omission
to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company will reimburse such seller,
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred by such seller, underwriter or controlling person in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided,
however,
that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or omission made in such Registration Statement, preliminary
prospectus or prospectus, or any such amendment or supplement, in reliance
upon
and in conformity with information furnished to the Company in writing by or
on
behalf of such seller, underwriter or controlling person specifically for use
in
the preparation thereof.
(b) In
the
event of any registration of any of the Registrable Shares under the Securities
Act pursuant to this Agreement, each seller of Registrable Shares, severally
and
not jointly, will indemnify and hold harmless the Company, each of its directors
and officers and each underwriter (if any) and each person, if any, who controls
the Company or any such underwriter within the meaning of the Securities Act
or
the Exchange Act, against any losses, claims, damages or liabilities, joint
or
several, to which the Company, such directors and officers, underwriter or
controlling person may become subject under the Securities Act, Exchange Act,
state securities or “blue sky” laws 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 Registrable Shares
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon
any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if the
statement or omission was made in reliance upon and in conformity with
information relating to such seller furnished in writing to the Company by
or on
behalf of such seller specifically for use in connection with the preparation
of
such Registration Statement, prospectus, amendment or supplement; provided,
however,
that
the obligations of a Shareholder hereunder shall be limited to an amount equal
to the net proceeds to such Shareholder of Registrable Shares sold in connection
with such registration.
(c) Each
party entitled to indemnification under this Section (the “Indemnified
Party”)
shall
give written notice to the party required to provide indemnification (the
“Indemnifying
Party”)
promptly after such Indemnified Party has actual knowledge of any claim as
to
which indemnity may be sought, and shall permit the Indemnifying Party to assume
the
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defense
of any such claim or any litigation resulting therefrom; provided
that
counsel for the Indemnifying Party, who shall conduct the defense of such claim
or litigation, shall be approved by the Indemnified Party (whose approval shall
not be unreasonably withheld); and provided further,
that
the failure of any Indemnified Party to give notice as provided herein shall
not
relieve the Indemnifying Party of its obligations under this Section except
to
the extent that the Indemnifying Party is adversely affected by such failure.
The Indemnified Party may participate in such defense at such party’s expense;
provided,
however,
that
the Indemnifying Party shall pay such expense if representation of such
Indemnified Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel in such
proceeding; provided further,
that in
no event shall the Indemnifying Party be required to pay the expenses of more
than one law firm per jurisdiction as counsel for the Indemnified Party. The
Indemnifying Party also shall be responsible for the expenses of such defense
if
the Indemnifying Party does not elect to assume such defense. No Indemnifying
Party, in the defense of any such claim or litigation shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof
the
giving by the claimant or plaintiff to such Indemnified Party of a release
from
all liability in respect of such claim or litigation, and no Indemnified Party
shall consent to entry of any judgment or settle such claim or litigation
without the prior written consent of the Indemnifying Party, which consent
shall
not be unreasonably withheld.
(d) In
order
to provide for just and equitable contribution in circumstances in which the
indemnification provided for in this Section 2.5 is due in accordance with
its
terms but for any reason is held to be unavailable to an Indemnified Party
in
respect to any losses, claims, damages and liabilities referred to herein,
then
the Indemnifying Party shall, in lieu of indemnifying such Indemnified Party,
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities to which such party may be
subject in such proportion as is appropriate to reflect the relative fault
of
the Company on the one hand and the Shareholders on the other in connection
with
the statements or omissions which resulted in such losses, claims, damages
or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Company and the Shareholders shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of material fact related to information supplied by the Company or the
Shareholders and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Shareholders agree that it would not be just and equitable if
contribution pursuant to this Section 2.5 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions
of
this paragraph of Section 2.5, (a) in no case shall any one Shareholder be
liable or responsible for any amount in excess of the net proceeds received
by
such Shareholder from the offering of Registrable Shares and (b) the Company
shall be liable and responsible for any amount in excess of such proceeds;
provided,
however,
that 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. 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
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a
claim
for contribution may be made against another party or parties under this
Section, notify such party or parties from whom contribution may be sought,
but
the omission so to notify such party or parties from whom contribution may
be
sought shall not relieve such party from any other obligation it or they may
have thereunder or otherwise under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its prior written consent, which consent shall not be unreasonably
withheld.
2.6 Other
Matters with Respect to Underwritten Offering.
In the
event that Registrable Shares are sold pursuant to a Registration Statement
in
an underwritten offering pursuant to Section 2.1, the Company agrees to (a)
enter into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of the Company and
customary covenants and agreements to be performed by the Company, including,
without limitation, customary provisions with respect to indemnification by
the
Company of the underwriters of such offering; (b) use its best efforts to cause
its legal counsel to render customary opinions to the underwriters and the
Selling Shareholders with respect to the Registration Statement; and (c) use
its
best efforts to cause its independent public accounting firm to issue customary
“comfort letters” to the underwriters and the Selling Shareholders with respect
to the Registration Statement.
2.7 Information
by Holder.
Each
holder of Registrable Shares included in any registration shall furnish to
the
Company such information regarding such holder and the distribution proposed
by
such holder as the Company may reasonably request in writing and as shall be
required in connection with any registration, qualification or compliance
referred to in this Agreement.
2.8 “Stand-Off”
Agreement; Confidentiality of Notices.
Each
Shareholder, if requested by the Company shall not sell or otherwise transfer
or
dispose of any Registrable Shares or other securities of the Company held by
such Shareholder for a period of one hundred and eighty (180) days following
the
effective date of a Registration Statement; provided,
however,
that:
(a) such
agreement shall only apply to the initial ‘33 Act Offering; and
(b) all
shareholders of the Company then holding at least 1% of the outstanding Common
Stock (on an as-converted basis) and all employees, officers and directors
of
the Company enter into similar agreements.
The
Company may impose stop-transfer instructions with respect to the Registrable
Shares or other securities subject to the foregoing restriction until the end
of
such one hundred and eighty (180) day period.
Any
Shareholder receiving any written notice from the Company regarding the
Company’s plans to file a Registration Statement shall treat such notice
confidentially and shall not disclose such information to any person other
than
as necessary to exercise its rights under this Agreement.
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2.9 Limitations
on Subsequent Registration Rights.
The
Company shall not, without the prior written consent of Shareholders holding
at
least a majority of the Registrable Shares then held by all Shareholders, enter
into any agreements (other than this Agreement) with any holder or prospective
holder of any securities of the Company which grant such holder or prospective
holder rights to include securities of the Company in any Registration
Statement, unless (a) such rights to include securities in a registration
initiated by the Company or by Shareholders are not more favorable than the
rights granted to Other Holders under Section 2.2 of this Agreement, and (b)
no
rights are granted to initiate a registration, other than registration pursuant
to a registration statement on Form S-3 (or its successor) in which Shareholders
are entitled to include Registrable Shares on a pro rata basis with such holders
based on the number of shares of Common Stock (on an as-converted basis) owned
by Shareholders and such holders.
2.10 Rule
144 Requirements.
The
Company agrees to:
(a) make
and
keep current public information about the Company available, as those terms
are
understood and defined in Rule 144;
(b) use
its
best efforts to file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish
to any holder of Registrable Shares upon request (i) a written statement by
the
Company as to its compliance with the reporting requirements of Rule 144 and
of
the Securities Act and the Exchange Act (at any time after it has become subject
to such reporting requirements), (ii) a copy of the most recent annual or
quarterly report of the Company, and (iii) such other reports and documents
of
the Company as such holder may reasonably request to avail itself of any similar
rule or regulation of the Commission allowing it to sell any such securities
without registration.
2.11 Termination.
All of
the Company’s obligations to register Registrable Shares under Sections 2.1 and
2.2 of this Agreement shall terminate five (5) years after the closing of the
initial ‘33 Act Offering.
3. Transfers
of Rights.
The
rights to cause the Company to register Registrable Securities pursuant to
this
Section 2 may be assigned by a Series A Holder to a transferee or assignee
of Registrable Securities; provided,
however,
(a) the transferor shall, within fifteen (15) days after such transfer,
furnish to the Company written notice of the name and address of such transferee
or assignee and the securities with respect to which such registration rights
are being assigned, and (b) such transferee shall agree in writing to be
subject to all rights and restrictions applicable to Series A Holders set forth
in this Agreement, and such transferee or assignee shall thereby become an
“Series A Holder.”
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4. General.
(a) Severability.
The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
(b) Specific
Performance.
In
addition to any and all other remedies that may be available at law in the
event
of any breach of this Agreement, each Series A Holder shall be entitled to
specific performance of the agreements and obligations of the Company hereunder
and to such other injunctive or other equitable relief as may be granted by
a
court of competent jurisdiction.
(c) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Colorado (without giving effect to the conflicts of law
provisions thereof).
(d) Notices.
All
notices, reports and other communications required or permitted hereunder shall
be in writing and shall be hand delivered, sent by facsimile, or mailed, postage
prepaid, to the Company, at the address listed below, or to the Series A Holders
at the following addresses, which shall be the same addresses reflected on
the
records of the Company until such time as the Company receives notice of a
change:
|
If
to the Company:
|
|
|
Across
America Real Estate Corp.
|
|
|
0000
Xxxxxxxxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxxxxx,
Xxxxxxxx 00000
|
|
|
Attention:
Chief Executive Officer
|
|
|
Telephone:
(000) 000-0000
|
|
|
Facsimile:
(000) 000-0000
|
|
|
With
a copy to:
|
|
|
|
|
|
Xxxxx
Xxxxxx & Associates, P.C.
|
|
|
0000
Xxxx Xxxxxxxx Xxx.
|
|
|
Xxxxxxxxx
Xxxxx
|
|
|
Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
|
|
|
Attention:
Xxxxx X. Xxxxxx, Esq.
|
|
|
Telephone:
(000) 000-0000
|
|
|
Facsimile:
(000) 000-0000
|
|
The
Series A Holders:
|
|
|
BOCO
Investments, LLC
|
|
|
000
Xxxx Xxxxxxxx Xxx.
|
|
|
Xxxx
Xxxxxxx, Xxxxxxxx 00000
|
|
|
Facsimile:
(000) 000-0000
|
|
|
Attention:
Chief Executive Officer
|
|
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12
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| With
a copy to:
|
|
|
Xxxxx
Xxxxxx & Xxxxxx LLP
|
|
|
0000
00xx
Xxxxxx, Xxxxx 000
|
|
|
Xxxxxx,
Xxxxxxxx 00000
|
|
|
Attention:
Xxxxxx X. Xxxxxx XX and Xxxxx X. Xxxxxxxx
|
|
|
Telephone:
(000) 000-0000
|
|
|
Facsimile:
(000) 000-0000
|
|
GDBA
Investments, LLLP
|
|
|
0000
Xxxxx Xxxxxx, Xxxxx 000
|
|
|
Xxxxxx,
XX 00000
|
|
|
Facsimile:
(000) 000-0000
|
|
|
Attention:
Chief Executive Officer
|
| With
a copy to
|
|
|
Xxxxx
& Xxxxxxx X.X.
|
|
|
Xxxxx
000, Xxxxxx Xxxxxx
|
|
|
0000
Xxxxxxxxxxx Xxxxxx
|
|
|
Xxxxxx,
XX 00000
|
|
|
Facsimile:
(000) 000-0000
|
|
|
Attention:
Xxxxxxx X.
Xxxxxxx
|
|
Xxxxxx
X. Xxxxxxx
|
|
|
000
Xxxx Xxxxxxxx Xxx.
|
|
|
Xxxx
Xxxxxxx, Xxxxxxxx 00000
|
|
|
Facsimile:
(000) 000-0000
|
Each
such
notice, report or other communication shall, for all purposes hereof, be treated
as effective or having been given when delivered if delivered personally or,
if
sent by mail, at the earlier of its receipt or 72 hours after the same has
been
deposited in a regularly maintained receptacle for the deposit of the United
States mail, addressed and mailed as aforesaid, or, if sent by facsimile with
written confirmation, at the earlier of (i) 24 hours after confirmation of
transmission by the sending facsimile machine or (ii) delivery of written
confirmation.
(e) Complete
Agreement.
This
Agreement constitutes the entire agreement and understanding of the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings relating to such subject matter, whether oral
or
written.
(f) Modification
or Amendment.
Neither
this Agreement nor any provision hereof can be modified or changed, except
by an
instrument in writing, signed by the Company and the Series A Holders
holding in the aggregate at least fifty percent (50%) of the Registrable
Shares.
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13
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(g) Pronouns.
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural, and vice
versa.
(h) Counterparts;
Facsimile Signatures.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, and all of which together shall constitute one and
the
same document. This Agreement may be executed by facsimile
signatures.
(i) Section
Headings.
The
section headings are for the convenience of the parties and in no way alter,
modify, amend, limit or restrict the contractual obligations of the
parties.
[Signature
page follows]
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14
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IN
WITNESS WHEREOF,
this
Registration Rights Agreement has been executed by the parties hereto as of
the
date first above written.
COMPANY:
Across
America Real Estate Corp.
By: /s/
Xxx X. Xxxxxxx
Name:
Xxx X.
Xxxxxxx
Title:
Chief
Executive Officer
SERIES
A HOLDERS:
BOCO
Investments, LLC
By: /s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
CEO
GDBA
Investments, LLLP
By: /s/
G. Xxxxx Xxxxxxx
Name:
G.
Xxxxx Xxxxxxx
Title:
Manager
By: /s/
Xxxxxx
X.
Xxxxxxx
Name:
Xxxxxx
X.
Xxxxxxx
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