REGISTRATION RIGHTS AGREEMENT by and among BRAVO DEVELOPMENT, INC., BRAVO DEVELOPMENT HOLDINGS LLC, and THE OTHER INVESTORS NAMED HEREIN Dated as of June 29, 2006
Exhibit 10.7
by and among
BRAVO DEVELOPMENT, INC.,
BRAVO DEVELOPMENT HOLDINGS LLC,
and
THE OTHER INVESTORS NAMED HEREIN
Dated as of June 29, 2006
TABLE OF CONTENTS
| Page | ||||
1. DEFINITIONS |
1 | |||
2. REGISTRABLE SECURITIES |
3 | |||
3. INCIDENTAL REGISTRATION |
3 | |||
4. DEMAND REGISTRATION |
5 | |||
5. REGISTRATION PROCEDURES |
6 | |||
6. INDEMNIFICATION |
9 | |||
7. HOLD-BACK AGREEMENTS |
11 | |||
8. UNDERWRITTEN REGISTRATION |
12 | |||
9. MISCELLANEOUS |
12 | |||
DEFINED TERMS
Additional Party |
12 | |||
Affiliate |
1 | |||
Agreement |
1 | |||
Commission |
1 | |||
Common Stock |
1 | |||
Company |
1 | |||
Damages |
9 | |||
Demand Registration |
5 | |||
Demand Registration Request |
5 | |||
Exchange Act |
1 | |||
Holdings |
1 | |||
Holdings Registrable Securities |
1 | |||
Incidental Registration |
3 | |||
Inspector |
8 | |||
Inspectors |
8 | |||
Investor |
1 | |||
Investors |
1 | |||
Management Investors |
1 | |||
Merger Agreement |
1 | |||
Notice |
3 | |||
Person |
1 | |||
Prospectus |
1 | |||
Public Offering |
2 | |||
Records |
8 | |||
Registrable Securities |
2 | |||
Registration Expenses |
2 | |||
Registration Statement |
2 | |||
Required Holders |
2 | |||
S-3 Registration |
5 | |||
S-3 Registration Request |
5 | |||
Securities Act |
2 | |||
Securities Holders Agreements |
2 | |||
Securities Purchase Agreement |
2 | |||
Special Registration Statement |
3 | |||
Underwritten Offering |
3 | |||
Underwritten Registration |
3 |
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THIS IS A REGISTRATION RIGHTS AGREEMENT, dated as of June 29, 2006 (the “Agreement”),
by and among Bravo Development, Inc., an Ohio corporation (the “Company”), Bravo
Development Holdings LLC, a Delaware limited liability company (“Holdings”), and the
individuals designated as Management Investors on the signature pages hereto (the “Management
Investors”). Holdings and each of the Management Investors are sometimes referred to herein
individually as an “Investor” and collectively as the “Investors.”
In consideration of the mutual covenants contained herein and intending to be legally bound
hereby, the parties agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized terms shall have the following meanings:
“Affiliate” has the meaning set forth in Rule 12b-2 of the Rules promulgated under the
Exchange Act.
“Commission” means the Securities and Exchange Commission.
“Common Stock” means the Common Stock, par value $.001 per share, of the Company, as
adjusted for any stock dividend or distribution payable thereon or stock split, reverse stock
split, recapitalization, reclassification, reorganization, exchange, subdivision or combination
thereof.
“Demand Registration” has the meaning set forth in Section 4(a) of this Agreement.
“Demand Registration Request” has the meaning set forth in Section 4(a) of this
Agreement.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to
time.
“Holdings Registrable Securities” means the Registrable Securities held by Holdings.
“Merger Agreement” means that certain Agreement and Plan of Merger dated as of June 2,
2006 by and among the Company and the other parties thereto.
“Person” means an individual, partnership, limited liability company, corporation,
trust or unincorporated organization, or a government or agency or political subdivision thereof or
any other entity of any kind.
“Prospectus” means the prospectus included in any Registration Statement, as amended
or supplemented by any prospectus supplement with respect to the terms of the offering
of any portion of the Registrable Securities covered by such Registration Statement and all other
amendments and supplements to the Prospectus, including post-effective amendments, and all material
incorporated by reference in such Prospectus.
“Public Offering” means a successfully completed firm commitment underwritten public
offering pursuant to an effective registration statement under the Securities Act (other than a
Special Registration Statement) in respect of the offer and sale of shares of Common Stock for the
account of the Company resulting in aggregate net proceeds to the Company and any stockholder
selling shares of Common Stock in such offering of not less than $50,000,000.
“Registration Expenses” means the costs and expenses of all registrations and
qualifications under the Securities Act, and of all other actions the Company is required to take
in order to effect the registration of Registrable Securities under the Securities Act pursuant to
this Agreement (including all federal and state registration and filing fees, printing expenses,
fees and disbursements of counsel for the Company and the fees and expenses of the Company’s
independent public accountants (including the expenses of any special audit and “cold comfort”
letters required by or incident to such registration)) other than the costs and expenses of any
Investors whose Registrable Securities are to be registered pursuant to this Agreement comprising
underwriters’ commissions, brokerage fees, transfer taxes or the fees and expenses of any
accountants or other representatives retained by any Investor; provided, however,
that the term “Registration Expenses” shall include the fees and expenses of one counsel for the
holders of Registrable Securities designated by the holder of a majority of Registrable Securities
being registered, or proposed to be registered, in any offering that is the subject of this
Agreement.
“Registration Statement” means any registration statement of the Company which covers
any of the Registrable Securities pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration Statement, including post-effective
amendments, all exhibits and all material incorporated by reference in such Registration Statement.
“Registrable Securities” has the meaning set forth in Section 2 of this Agreement.
“Required Holders” means, as of any date, the approval, request or consent of the
holders of a majority of the Holdings Registrable Securities.
“Securities Act” means the Securities Act of 1933, as amended from time to time.
“Securities Holders Agreements” means collectively, that certain Securities Holders
Agreement, dated as of the date hereof, among the Company, Holdings, Xxxxx X. Xxxxx, III, Xxxx X.
Xxxxx and the other Investors named therein and that certain New Investors Securities Holders
Agreement, dated as of the date hereof, among the Company and the Investors named therein.
“Securities Purchase Agreement” means that certain Securities Purchase Agreement dated
as of June 2, 2006 by and among the Company and the Management Investors named therein.
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“Special Registration Statement” means a registration statement on Form S-8 or S-4 or
any similar or successor form or any other registration statement relating to an exchange offer or
an offering of securities solely to the Company’s employees or security holders or to security
holders of a corporation or other entity being acquired by, or merged with, the Company or used to
offer or sell a combination of debt and equity securities of the Company in which (i) not more than
10% of the gross proceeds from such offering is attributable to the equity securities and (ii)
after giving effect to such offering, the Company does not have a class of equity securities
required to be registered under the Securities Exchange Act of 1934, as amended.
“Underwritten Registration” or “Underwritten Offering” means a registration in
which securities of the Company are sold to an underwriter for reoffering to the public.
2. Registrable Securities. The securities entitled to the benefits of this Agreement
are the Registrable Securities. As used herein, “Registrable Securities” means the shares
of Common Stock issued to the Investors pursuant to the Securities Purchase Agreement or the Merger
Agreement and the shares of Common Stock that are hereafter issued to the Investors or their
Affiliates; provided, however, that any share of Common Stock shall cease to be a
Registrable Security when (a) it has been effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering such Common Stock; (b) it is
distributed to the public pursuant to Rule 144 (or any similar provisions then in force) under the
Securities Act; or (c) it has otherwise been transferred and a new certificate or other evidence of
ownership for such Common Stock not bearing or required to bear a legend as set forth in Section
1.2 of the Securities Holders Agreements (or other legend of similar import) and not subject to any
stop transfer order has been delivered by or on behalf of the Company and no other restriction on
transfer exists under the Securities Act.
3. Incidental Registration.
(a) Right to Include Common Stock. If the Company at any time proposes to register
any offer or sale of its Common Stock under the Securities Act (other than on a Special
Registration Statement, but expressly including a Demand Registration pursuant to Section 4(a)
hereof or an S-3 Registration under Section 4(c) hereof), whether or not for sale for its own
account, it will give written notice at least 30 days prior to the date on which a registration
statement relating to such offering is proposed to be filed with the Commission (the
“Notice”) to all holders of Registrable Securities of its intention to file such a
registration statement under the Securities Act and of such holders’ rights under this Section
3. Upon the written request of any such holders of Registrable Securities made within 20 days of
the date of the Notice (which request shall specify the intended number of Registrable Securities
to be registered and will also specify the intended method of disposition thereof), the Company
will use its best efforts to effect the registration under the Securities Act of the offer and sale
of all Registrable Securities which the Company has been so requested to register by the holders
thereof (an “Incidental Registration”), to the extent required to permit the public
disposition (in accordance with such intended methods thereof) of the Registrable Securities
subject to such requests; provided, however, that (i) if, any time after giving
written notice of its intention to register the offer and sale of shares of Common Stock and prior
to the effective date of the registration statement filed in connection with such registration, the
Company shall determine for
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any reason not to register the Company’s Common Stock, the Company
shall give written notice of such determination to each holder of Registrable Securities and,
thereupon, shall be relieved of its obligation to register any offer and sale of Registrable
Securities in connection with such registration (but not from its obligation to pay the
Registration Expenses in connection therewith); (ii) if a registration undertaken pursuant to this
Section 3 shall involve an Underwritten Offering, any holder of Registrable Securities requesting
to be included in such registration may elect, in writing at least 20 days prior to the effective
date of the registration statement filed in connection with such registration, not to register the
offer and sale of such holder’s Registrable Securities in connection with such registration; and
(iii) if, at any time after the 180-day or shorter period specified in Section 5(b), the sale of
the securities has not been completed, the Company may withdraw from the registration on a pro rata
basis (based on the number of Registrable Securities requested by each holder of Registrable
Securities to be subject to such registration) of the offer and sale of the Registrable Securities
of which the Company has been requested to register and which have not been sold.
(b) Priority in Incidental Registrations. If a registration pursuant to Section 3(a)
(other than a Demand Registration or S-3 Registration, it being understood the priority for such
registrations is set forth in Section 4(d)) involves an Underwritten Offering and the managing
underwriter or underwriters advise the Company in writing that, in its or their opinion, the total
number of shares of Common Stock to be included in such registration, including the Registrable
Securities requested to be included pursuant to this Section 3, exceeds the maximum number of
shares of Common Stock specified by the managing underwriter or underwriters that may be
distributed without materially and adversely affecting the price, timing or distribution of such
shares of Common Stock, then the Company shall include in such registration only such maximum
number of Registrable Securities which, in the reasonable opinion of such underwriter or
underwriters, can be sold in the following order of priority: (i) first, all of the shares of
Common Stock that the Company proposes to sell for its own account, if any, and (ii) second, the
Registrable Securities that are requested to be included in such Incidental Registration by the
holders of such Registrable Securities. To the extent that shares of Common Stock to be included
in the Incidental Registration must be allocated among the holder(s) of Registrable Securities
pursuant to clause (ii) above, such shares shall be allocated pro rata among the applicable
holder(s) of Registrable Securities based on the number of shares of Common Stock that such
holder(s) of Registrable Securities shall have requested to be included therein. Notwithstanding
the foregoing, if an Incidental Registration is an Underwritten Offering, the managing underwriter
or underwriters may select shares of Common Stock for inclusion, or exclude shares in part or
completely, in such Incidental Registration on a basis other than a pro rata basis if, in the reasonable opinion of such underwriter or underwriters,
selection on such other basis, or inclusion of such shares, would be material to the success of the
offering.
(c) Expenses. The Company will pay all Registration Expenses in connection with any
registration of Registrable Securities requested pursuant to this Section 3.
(d) Liability for Delay. The Company shall not be held responsible for any delay in
the filing or processing of a registration statement which includes any Registrable Securities due
to requests by holders of Registrable Securities pursuant to this Section 3 nor for any delay in
requesting the effectiveness of such registration statement.
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4. Demand Registration.
(a) Right to Demand Registration. Subject to Section 4(b) below, the holders of a
majority of the Holdings Registrable Securities shall be entitled to make written request (a
“Demand Registration Request”) (which Demand Registration Request shall specify the
intended number of Registrable Securities to be disposed of by such holders and the intended method
of disposition thereof) to the Company for registration with the Commission under and in accordance
with the provisions of the Securities Act of the offer and sale of all or part of the Registrable
Securities owned by it (a “Demand Registration”).
(b) Number of Demand Registrations. The holders of a majority of the Holdings
Registrable Securities shall be entitled to make up to six Demand Registration Requests under
Section 4(a) above provided that no such Demand Registration Request is made within six months of
any Incidental Registration or Demand Registration. In any Demand Registration, all Registration
Expenses shall be borne by the Company.
(c) In addition to the rights under paragraph (a) above, upon the written request (a “S-3
Registration Request”) by the holders of a majority of the Holdings Registrable Securities, the
Company shall use its best efforts to effect the registration of all of the Registrable Securities
held by the holders making a request pursuant to this paragraph (c) (a “S-3 Registration”);
provided, however, that the Company shall be obligated to use best efforts to
effect a registration requested pursuant to this paragraph (c) only if the Company is then eligible
to file the related registration statement on Form S-3 (or any successor form) under the Securities
Act. The Company shall pay all Registration Expenses related to each registration requested
pursuant to this Section 4(c). If and to the extent that any holder of any Registrable Securities
shall have, at the time of delivery of the written request referred to in this paragraph, no
present intention of selling or distributing such Registrable Securities, the Company shall be
obligated to effect the registration of such Registrable Securities of such holder only if and to
the extent, in each case, that such registration is at the time permitted by the applicable
statutes or rules and regulations thereunder or the practices of the governmental authority
concerned.
(d) Priority on Demand Registration. If any of the Registrable Securities subject to
a Demand Registration or an S-3 Registration are to be sold in a firm commitment Underwritten
Offering and the managing underwriter or underwriters of a Demand Registration or a S-3 Registration advise the Company and the holders of such Registrable
Securities in writing that in its or their opinion the number of shares of Common Stock proposed to
be sold in such Demand Registration or a S-3 Registration exceeds the maximum number of shares
specified by the managing underwriter that may be distributed without materially and adversely
affecting the price, timing or distribution of the Common Stock, the Company shall include in such
registration only such maximum number of Registrable Securities which, in the reasonable opinion of
such managing underwriter can be sold in the following order of priority: (i) first, the
Registrable Securities that are requested to be included in such Demand Registration or S-3
Registration (in accordance with the procedures set forth in either Section 3(a) or Section 4(a)
above) by any holder of Registrable Securities, and (ii) second, shares of Common Stock to be
offered by the Company in such offering. To the extent that shares of Common Stock to be included
in the Demand Registration or S-3 Registration must be allocated among the holder(s) of Registrable
Securities pursuant to clause (i) above, such shares shall be allocated pro rata
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among the applicable holder(s) of Registrable Securities based on the number of shares of Common Stock that
such holder(s) of Registrable Securities shall have requested to be included therein.
Notwithstanding the foregoing, if a Demand Registration or S-3 Registration is an Underwritten
Offering, the managing underwriter or underwriters may select shares of Common Stock for inclusion,
or exclude shares in part or completely, in such Demand Registration on a basis other than a pro
rata basis if, in the reasonable opinion of such underwriter or underwriters, selection on such
other basis, or inclusion of such shares, would be material to the success of the offering.
(e) A Demand Registration or S-3 Registration requested pursuant to this Section 4 will not be
deemed to have been effected unless it has become effective under the Securities Act;
provided, however, that if after a Demand Registration or S-3 Registration has so
become effective, the offering of Registrable Securities pursuant to such Demand Registration or
S-3 Registration is terminated, suspended or interfered with (so as to prevent the sale of more
than 25% of the Registrable Securities requested to be registered thereunder) by any stop order,
injunction or other order or requirement of the Commission or other governmental agency or court,
such Demand Registration or S-3 Registration will be deemed not to have been effected.
5. Registration Procedures. If and whenever the Company is required to use its best
efforts to effect or cause the registration of any Registrable Securities under the Securities Act
as provided in this Agreement (including pursuant to a Demand Registration Request given under
Section 4(a)), the Company will, as expeditiously as reasonably possible:
(a) prepare and file with the Commission a registration statement with respect to such
Registrable Securities, and use its best efforts to cause such registration statement to become
effective and to keep the sellers of Registrable Securities advised in writing of the initiation
and progress of proceedings regarding such registration, provided, however, that
the Company may discontinue any registration of its securities which is being effected pursuant to
Sections 3 or 4 herein at any time prior to the effective date of the registration statement
relating thereto (but only to the extent set forth in the proviso contained in Section 3(a));
(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 keep such
registration statement effective for a period of not less than 180 days or such shorter period which will terminate when all Registrable Securities covered by
such registration statement have been sold (but not before the expiration of the 90-day period
referred to in Section 4(3) of the Securities Act and Rule 174 thereunder, if applicable) and
comply with the provisions of the Securities Act with respect to the disposition of all securities
covered by such registration statement during such period in accordance with the intended methods
of disposition by the seller or sellers thereof set forth in such registration statement;
provided, however, that prior to filing with the Commission any such registration
statement, prospectus or amendment or supplement thereto, the Company shall furnish copies thereof
to counsel for the sellers of Registrable Securities under such registration statement, which
document will be subject to reasonably prompt review by such counsel;
(c) furnish to each seller of such Registrable Securities such number of copies of such
registration statement and of each such amendment and supplement thereof (in
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each case including all exhibits), such number of copies of the prospectus included in such registration statement
(including each preliminary prospectus and summary prospectus), in conformity with the requirements
of the Securities Act, and such other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities by such seller;
(d) use its best efforts to register or qualify such Registrable Securities covered by such
registration statement under such other securities or blue sky laws of such jurisdictions as each
seller shall request, and do any and all other acts and things which may be necessary or advisable
to enable such seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller; provided, however, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it is not then so qualified
or to take any action which would subject it to general service of process in any such jurisdiction
where it is not then so subject or subject itself to general taxation in any jurisdiction where it
is not then so subject;
(e) immediately notify each seller of any Registrable Securities covered by such registration
statement, at any time when a prospectus relating thereto is required to be delivered under the Act
within the appropriate period mentioned in clause (b) of this Section 5, of the Company becoming
aware that the prospectus included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of the circumstances then
existing, and within ten days prepare and furnish to all sellers a reasonable number of copies of
an amended or supplemental prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such Registrable 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 in the light of the circumstances then existing;
(f) use its best efforts to list such Registrable Securities on any securities exchange on
which the Common Stock is then listed or NASDAQ if the Common Stock is then quoted on NASDAQ, if
such Registrable Securities are not already so listed or quoted and if such listing is then
permitted under the rules of such exchange or NASDAQ, and provide an independent transfer agent and registrar for such Registrable Securities covered by
such registration statement not later than the effective date of such registration statement;
(g) furnish to each seller of Registrable Securities covered by such registration statement a
signed counterpart, addressed to such seller (and the underwriters, if any) of:
(i) an opinion of counsel for the Company, dated the effective date of such
registration statement (or, if such registration involves an underwritten public
offering, dated the date of the closing under the underwriting agreement),
reasonably satisfactory in form and substance to the sellers of not less than 50% of
such Registrable Securities (and the managing underwriter, if any); and
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(ii) a “comfort” letter, dated the effective date of such registration
statement (or, if such registration involves an underwritten Public Offering, dated
the date of the underwriting agreement and a “bring down” letter dated the date of
the 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 such matters with respect to such registration
statement as are customarily covered in accountants’ letters delivered to the
underwriters in Underwritten Offerings of securities as may reasonably be requested
by the sellers of not less than 50% of such Registrable Securities (and the managing
underwriter, if any);
(h) make available for inspection by any seller of such Registrable Securities covered by such
registration statement, by any underwriter participating in any disposition to be effected pursuant
to such registration statement and by any attorney, accountant or other agent retained by any such
seller or any such underwriter (individually, an “Inspector” and collectively, the
“Inspectors”), all pertinent financial and other records, pertinent corporate documents and
properties of the Company as shall be reasonably necessary to enable them to exercise their due
diligence responsibilities (collectively, the “Records”), and cause all of the Company’s
officers, directors and employees to supply all information reasonably requested by any such
seller, underwriter, or Inspector in connection with such registration statement; provided
that any Records that are designated by the Company in writing as confidential shall be kept
confidential by the Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission of material fact in such registration statement or (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or by any regulatory authority having jurisdiction. Each Investor agrees that
non-public information obtained by it as a result of such Inspections shall be deemed confidential
and acknowledges its obligations under the Federal securities laws not to trade any securities of
the Company on the basis of material non-public information;
(i) enter into and perform customary agreements (including, if applicable, an underwriting
agreement in customary form with customary representations, warranties and indemnities) and provide officers’ certificates and other customary closing
documents; and
(j) cooperate with each seller of Registrable Securities and each underwriter participating in
the disposition of such Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD and make reasonably available its employees and personnel
and otherwise provide reasonable assistance to the underwriters in the marketing of the Registrable
Securities in any Underwritten Offering (including making road show presentations).
The Company may require each seller of Registrable Securities as to which any registration is
being effected promptly to furnish to the Company (i) an opinion of counsel for such seller dated
the effective date of the registration statement relating to such seller’s Registrable Securities
(or, if such registration involves an underwritten Public Offering, dated the date of the closing
under the underwriting agreement), reasonably satisfactory in form and substance to the Company
(and the managing underwriter, if any) and (ii) such information
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regarding the distribution of such Registrable Securities as may be legally required. Such information shall be furnished in writing
and shall state that it is being furnished for use in the registration statement.
Each holder of Registrable Securities agrees by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event of the kind
described in clause (e) of this Section 5, such holder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such Registrable Securities
until such holder’s receipt of the supplemented or amended prospectus contemplated by clause (e) of
this Section 5, and, if so directed by the Company, such holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such holder’s possession,
of the prospectus covering such Registrable Securities current at the time of receipt of the
Company’s notice. In the event the Company shall give any such notice, the period mentioned in
clause (b) of this Section 5 shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to clause (e) of this Section 5 and
including the date when each seller of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended prospectus contemplated by
clause (e) of this Section 5.
6. Indemnification.
(a) Indemnification by the Company. The Company hereby agrees to indemnify and hold
harmless each holder of Registrable Securities which shall have been registered under the
Securities Act, and such holder’s officers, directors, employees and agents and each other Person,
if any, who controls such holder within the meaning of the Securities Act and each other Person
(including underwriters) who participates in the offering of such Registrable Securities against
any losses, claims, damages, liabilities, reasonable attorneys’ fees, costs or expenses
(collectively, the “Damages”), joint or several, to which such holder or controlling Person
or participating Person may become subject under the Securities Act or otherwise, insofar as such
Damages (or proceedings in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact made by the Company or its agents contained in any registration statement under which such
Registrable Securities are registered under the Securities Act, in any preliminary prospectus or
final prospectus contained therein, or in any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and will reimburse such
holder of Registrable Securities or such controlling Person or participating Person in connection
with investigating or defending any such Damages or proceeding; provided, however,
that the Company will not be liable in any such case to the extent that any such Damages arise out
of or are based upon (i) an untrue statement or alleged untrue statement or omission or alleged
omission made in such registration statement, said preliminary or final prospectus or said
amendment or supplement thereto in reliance upon and in conformity with written information
furnished to the Company by such holder or such controlling or participating Person, as the case
may be, specifically for use in the preparation thereof; or (ii) an untrue statement or alleged
untrue statement, omission or alleged omission in a prospectus if such untrue statement or alleged
untrue statement, omission or alleged omission is corrected in an amendment or supplement to the
prospectus which amendment or supplement is delivered to such holder in a
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timely manner and such holder thereafter fails to deliver such prospectus as so amended or supplemented prior to or
concurrently with the sale of such Registrable Securities to the Person asserting such Damages.
(b) Indemnification by the Holders of Registrable Securities Which Are Registered. It
shall be a condition of the Company’s obligations under this Agreement to effect any registration
under the Securities Act that there shall have been delivered to the Company an agreement or
agreements duly executed by each holder of Registrable Securities to be so registered, whereby each
such holder agrees to indemnify and hold harmless the Company, its directors, officers, employees
and agents and each other Person, if any, which controls the Company within the meaning of the
Securities Act against any Damages, joint or several, to which the Company, or such other Person or
such Person controlling the Company may become subject under the Securities Act or otherwise, but
only to the extent that such Damages (or proceedings in respect thereof) arise out of or are based
upon any untrue statements or alleged untrue statement of any material fact contained, on the
effective date thereof, in any registration statement under which such Registrable Securities are
registered under the Securities Act, in any preliminary prospectus or final prospectus contained
therein or in any amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, which, in each such case, has been made in or omitted
from such registration statement, said preliminary or final prospectus or said amendment or
supplement in reliance upon, and in conformity with, written information furnished to the Company
by such holder of Registrable Securities specifically for use in the preparation thereof. The
Company shall be entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the distribution, to the
same extent as provided above, with respect to information furnished in writing by such Persons
specifically for inclusion in any prospectus or registration statement.
(c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification
hereunder shall (i) give prompt written notice to the indemnifying party of the commencement of any
action or proceeding involving a claim referred to in the preceding paragraphs of this Section 6 (provided the failure of any indemnified party to give such
notice shall not relieve the indemnifying party of its obligations under this Section 6 except to
the extent of any damages caused solely by such failure), and (ii) unless the indemnified party has
been advised by its counsel that a conflict of interest exists or may exist between such
indemnified and indemnifying parties under applicable standards of professional responsibility,
with respect to such claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. Whether or not such defense is assumed
by the indemnifying party, the indemnifying party will not be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably withheld). No
indemnifying party will consent to the 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;
provided, however, that no indemnifying party will consent to the entry of any
judgment or enter into any settlement (other than for the payment of money only) without the
consent of the indemnified party (which consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense of the claim, will
not be obligated to
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pay the fees and expenses of more than one counsel for all parties indemnified
by such indemnifying party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest exists or may exist between such indemnified party and any
other such indemnified parties with respect to such claim, in which event the indemnifying party
shall be obligated to pay the fees and expenses of such additional counsel or counsels.
(d) Contribution. If for any reason the indemnification provided for in the preceding
Sections 6(a) or 6(b) is unavailable to an indemnified party in respect of any Damages referred to
therein, the indemnifying party shall contribute to the amount paid or payable by the indemnified
party as a result of such Damages in such proportion as is appropriate to reflect the relative
benefits received by, and the relative fault of, the indemnified party and the indemnifying party,
as well as any other appropriate equitable considerations; provided, however, that
in no event shall the liability of any selling holder of Registrable Securities hereunder (whether
in respect of indemnification or contribution obligations) be greater in amount than the difference
between the dollar amount of the proceeds received by such holder upon the sale of the Registrable
Securities giving rise to such contribution obligation and all amounts previously contributed by
such holder with respect to such Damages. 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 fraudulent misrepresentation.
7. Hold-Back Agreements.
(a) Restrictions on Public Sale by Holder of Registrable Securities. Each holder of
Registrable Securities whose Registrable Securities are eligible for inclusion in a Registration
Statement filed pursuant to Sections 3 or 4 agrees, if requested by the managing underwriter or
underwriters in an Underwritten Offering of any Registrable Securities, not to effect any public
sale or distribution of Registrable Securities, including a sale pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act (except as part of such Underwritten
Registration), during the 10-day period prior to, and during the 180-day period (in the case of the
Company’s initial Public Offering) or 90-day period (in the case of an offering after the initial
Public Offering) beginning on the effective date of such Registration Statement,
to the extent timely notified of such offering in writing by the Company or the managing
underwriter or underwriters.
(b) Restrictions on Public Sale by the Company and Others. The Company shall (i) not
effect any public sale or distribution of any of its Common Stock for its own account during the
10-day period prior to, and during the 180-day period (in the case of the Company’s initial Public
Offering) or 90-day period (in the case of an offering after the initial Public Offering) beginning
on, the effective date of a Registration Statement filed pursuant to Sections 3 or 4 (except as
part of a Special Registration Statement), and (ii) use reasonable efforts to cause each holder of
Common Stock purchased from the Company at any time after the date of this Agreement (other than in
a Public Offering) to agree not to effect any public sale or distribution of any such securities
during such period, including a sale pursuant to Rule 144 under the Securities Act (except as part
of such Underwritten Registration, if permitted).
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8. Underwritten Registration.
If any of the Registrable Securities covered by any Incidental Registration that is not also a
Demand Registration or S-3 Registration are to be sold in an Underwritten Offering, the investment
banker or investment bankers and manager or managers that will administer and underwrite the
offering will be selected by the Company. In any Demand Registration or S-3 Registration, such
underwriters shall be selected by the holders of a majority of the Registrable Securities being
registered.
Notwithstanding anything herein to the contrary, no Person may participate in any Underwritten
Registration hereunder unless such Person (a) agrees to sell such Person’s securities on the basis
provided in any underwritten arrangements approved by the Persons entitled hereunder to approve
such arrangement and (b) accurately completes and executes all questionnaires, powers of attorney,
indemnities, custody agreements, underwriting agreements and other customary documents required
under the terms of such underwriting arrangements; provided, however, that no
holder of Registrable Securities will be required to provide representations and warranties or
indemnities or otherwise become subject to liabilities or obligations in any such underwriting
agreement that are not customary for investors of its type in such transaction.
9. Miscellaneous.
(a) Amendment and Modification. This Agreement may be amended or modified, or any
provision hereof may be waived, provided that such amendment or waiver is set forth in a writing
executed by (i) the Company, (ii) the Required Holders and (iii) in the case of any amendment which
materially and adversely affects any Investor differently from any other Investor (other than due
to any difference in the number of shares owned by any such Investor), such Investor. No course of
dealing between or among any persons having any interest in this Agreement will be deemed effective
to modify, amend or discharge any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement.
(b) Additional Parties. The Board of Directors of the Company shall be entitled, but
not obligated, with the consent of the Required Holders, to allow any purchaser or acquirer of
equity securities (or securities or rights convertible or exercisable into equity securities), of
the same type and class of the Registrable Securities, to execute a counterpart to this Agreement
and become a party hereto (each, an “Additional Party”), in which case the equity
securities issued or issuable to any such Additional Party shall be deemed to be “Registrable
Securities” subject to the terms and conditions hereof and such Additional Party shall be deemed to
be a holder of “Registrable Securities” for purposes hereof. Except as set forth in this Section
9(b), the Company will not grant to any other persons any registration rights.
(c) Survival of Representations and Warranties. All representations, warranties,
covenants and agreements set forth in this Agreement will survive the execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby, regardless of any
investigation made by an Investor or on its behalf.
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(d) Successors and Assigns. The parties to this Agreement intend that this
Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns and any holder from time to time of
Registrable Securities. In the event that any transferee of any holder of Registrable Securities
shall acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation
of law or otherwise, such transferee shall, without any further writing or action of any kind, be
entitled to receive the benefits of and be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement.
(e) Separability. In the event that any provision of this Agreement or the
application of any provision hereof is declared to be illegal, invalid or otherwise unenforceable
by a court of competent jurisdiction, the remainder of this Agreement shall not be affected except
to the extent necessary to delete such illegal, invalid or unenforceable provision unless that
provision held invalid shall substantially impair the benefits of the remaining portions of this
Agreement.
(f) Notices. All notices provided for or permitted hereunder shall be made in writing
by hand-delivery, registered or certified first-class mail, fax, or reputable courier guaranteeing
overnight delivery to the other parties at the following addresses (or at such other address as
shall be given in writing by any party to the others):
If to the Company:
Bravo Development, Inc.
000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
000 Xxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
with a required copy to:
Dechert LLP
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to Holdings, to:
x/x Xxxxxxxxx, Xxxxxx, Xxxxxxxx & Co., Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, XX
Fax: (000) 000-0000
with a required copy to:
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, XX
Fax: (000) 000-0000
with a required copy to:
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Dechert LLP
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Bruckmann, Xxxxxx, Xxxxxxxx & Co., Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, XX
Fax: (000) 000-0000
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, XX
Fax: (000) 000-0000
Xxxxxx Xxxxxx, Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
If to any of the Management Investors, to such Management Investor’s address as set forth on
the signature pages hereto.
All such notices shall be deemed to have been duly given: when delivered by hand, if
personally delivered; four business days after being deposited in the mail, postage prepaid, if
mailed; when confirmation of transmission is received, if faxed during normal business hours (or if
not faxed during normal business hours, on the next succeeding business day); and on the next
business day, if timely delivered to a reputable courier guaranteeing overnight delivery.
(g) Governing Law. The validity, performance, construction and effect of this
Agreement shall be governed by and construed in accordance with the internal laws of the State of
New York, without giving effect to principles of conflicts of law.
(h) Headings. The headings in this Agreement are for convenience of reference only
and shall not constitute a part of this Agreement, nor shall they affect their meaning,
construction or effect.
(i) Counterparts. This Agreement may be executed in two or more 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 instrument.
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(j) Further Assurances. Each party shall cooperate and take such action as may be
reasonably requested by another party in order to carry out the provisions and purposes of this
Agreement and the transactions contemplated hereby.
(k) Termination. Unless sooner terminated in accordance with its terms, this
Agreement shall terminate on the fifteenth anniversary of the date of this Agreement; provided that
the indemnification rights and obligations set forth in Section 6 hereof shall survive the
termination of this Agreement.
(l) Remedies. In the event of a breach or a threatened breach by any party to this
Agreement of its obligations hereunder, any party injured or to be injured by such breach, in
addition to being entitled to exercise all rights granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement, it being agreed by the
parties that the remedy at law, including monetary damages, for breach of such provision will be
inadequate compensation for any loss and that any defense in any action for specific performance
that a remedy at law would be adequate is waived.
(m) Party No Longer Owning Securities. If a party hereto ceases to own any Common
Stock, such party will no longer be deemed to be an Investor for purposes of this Agreement;
provided that the indemnification rights and obligations set forth in Section 6 hereof shall
survive any such cessation of ownership.
(n) Pronouns. Whenever the context may require, any pronouns used herein shall be
deemed also to include the corresponding neuter, masculine or feminine forms.
(o) No Effect on Employment. Nothing herein contained shall confer on any Investor
the right to remain in the employ or service of the Company or any of its subsidiaries or
Affiliates.
(p) Attorneys’ Fees. In the event any party hereto commences any action to enforce
any rights of such party hereunder, the prevailing party in such action shall be entitled to
recover such party’s costs and expenses incurred in such action, including, without limitation,
reasonable attorneys’ fees.
(q) Current Public Information. At all times after the Company has filed a
registration statement with the Commission pursuant to the requirements of either the Securities
Act or the Exchange Act, and as long as the Investors shall hold any Registrable Securities, the
Company will file all reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the Commission thereunder, and will take such further
action as any holder or holders of Registrable Securities may reasonably request, all to the extent
required to enable such holders to sell Registrable Securities pursuant to Rule 144 under the
Securities Act (as such rule may be amended from time to time) or any similar rule or regulation
hereafter adopted by the Commission.
(r) Entire Agreement. This Agreement sets forth the entire agreement and
understandings among the parties as to the subject matter hereof and merges and supersedes all
prior discussions and understandings of any and every nature among them, it being
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understood the Investors are also entering into other agreements and instruments on the date
hereof, including the Securities Holders Agreements.
[SIGNATURE PAGES FOLLOW]
- 16 -
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| BRAVO DEVELOPMENT, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxx, III | |||
| Name: | Xxxxx X. Xxxxx, III | |||
| Title: | Chief Executive Officer | |||
| BRAVO DEVELOPMENT HOLDINGS LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Name: | Xxxxxx X. Xxxxxx | |||
| MANAGEMENT INVESTORS: |
||||
| /s/ Xxxxx X. Xxxxx, III | ||||
| Name: | Xxxxx X. Xxxxx, III | |||
| /s/ Xxxx X. Xxxxx | ||||
| Name: | Xxxx X. Xxxxx | |||
| /s/ Xxxxxxx X. Xxxxxxxxx | ||||
| Name: | Xxxxxx X. Xxxxxxxxx | |||
| /s/ Xxxx Xxxx | ||||
| Name: | Xxxx Xxxx | |||
| /s/ Xxxxx Xxxxxxxxx | ||||
| Name: | Xxxxx Xxxxxxxxx | |||
| /s/ Xxxxxx Xxxxxxx | ||||
| Name: | Xxxxxx Xxxxxxx | |||
| /s/ Xxxxx X’Xxxxxx | ||||
| Name: | Xxxxx X’Xxxxxx | |||
| /s/ Xxxxxx Xxxxxx | ||||
| Name: | Xxx Xxxxxx | |||
| /s/ Xxxx Xxxxxxx | ||||
| Name: | Xxxx Xxxxxxx | |||
| /s/ Xxxx Xxxxxxx | ||||
| Name: | Xxxx Xxxxxxx | |||
| /s/ Xxxxxxx Xxxxxxxx | ||||
| Name: | Xxxx Xxxxxxxx | |||
| /s/ Xxxxxx Xxxxx | ||||
| Name: | Xxxxxx Xxxxxxx Xxxxx | |||
| /s/ Xxxxx Xxxxxxx | ||||
| Name: | Xxxx Xxxxxxx | |||
| /s/ Xxxxx Xxxxx | ||||
| Name: | Xxxxx Xxxxx | |||
| /s/ Xxx XxxXxxxxx | ||||
| Name: | Xxx XxxXxxxxx | |||
| /s/ Xxx Xxxxx | ||||
| Name: | Xxx Xxxxx | |||
| /s/ Xxxxxx Xxx | ||||
| Name: | Xxx Xxx | |||
| /s/ Xxx Xxxx | ||||
| Name: | Xxx Xxxx | |||
| /s/ Xxxxxx X. Xxxxxxxxx | ||||
| Name: | Xxxxxx Xxxxxxxxx | |||
| /s/ Xxxxxxx Xxxxxx | ||||
| Name: | Xxxxxxx Xxxxx | |||
| /s/ Xxxx Xxxxx | ||||
| Name: | Xxxx Xxxxx | |||
| /s/ Xxxxx Xxxxxx | ||||
| Name: | Xxxxx Xxxxxx | |||
| /s/ Xxxxx Xxxxxxx | ||||
| Name: | Xxxxx Xxxxxxx | |||
| /s/ Xxxxxxxx X. Xxxxx | ||||
| Name: | Xxxxxxxx Xxxxx | |||
| /s/ Xxxxx Xxxxxxx | ||||
| Name: | Xxxxx Xxxxxxx | |||
