PURCHASE AGREEMENT
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THIS PURCHASE AGREEMENT (the "Agreement") is entered into as of the 12th
day of January, 2000, by and between VOA National Housing Corporation, a
Louisiana not-for profit corporation ("VOA National"), VOA Nevada Affordable
Housing Corporation, a Nevada not-for-profit corporation, VOA Las Vegas
Affordable Housing Corporation I, a Nevada not-for-profit corporation, VOA
Saratoga Affordable Housing Corporation II, a Nevada not-for-profit corporation
("VOA Saratoga"), Xxxxxx Incorporated, a Nevada corporation ("Xxxxxx"), Lake
Tonopah, Limited Partnership, a Nevada limited partnership ("Tonopah LP"), Lake
Tonopah, LLC, a Nevada limited liability company ("Tonopah LLC"), Saratoga Palms
North II Limited Partnership, a Nevada limited partnership ("SPNII"), Northtown
Development, Ltd., a dissolved California limited partnership, and Nevada
Housing Opportunities LLC, a Nevada limited liability company ("NHO").
RECITALS
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A. WHEREAS Tonopah LP was established to acquire property and develop
said property into the Lake Tonopah Apartments, to lease the Lake Tonopah
Apartments and to perform activities incidental or related to the foregoing,
including management and operation of the Lake Tonopah Apartments. VOA Nevada
and Tonopah LLC are general partners of Tonopah LP;
B. WHEREAS on or about July 26, 1996, VOA National entered into a
property management agreement with Tonopah LP for VOA National's management of
Lake Tonopah Apartments ("Tonopah Management Agreement");
C. WHEREAS Tonopah LP, Xxxxxx, Tonopah LLC and VOA Nevada entered into
a Development Agreement, an Amended and Restated Development Agreement and
Addendum to Development Agreement (collectively "Tonopah Development Agreement")
to facilitate the Lake Tonopah Apartments;
D. WHEREAS SPNII was established to acquire property and develop
Said property into the Saratoga Palms North II Apartments, to lease the
Saratoga Palms North II Apartments and to perform activities incidental or
related to the foregoing, including management and operation of the Saratoga
Palms North II Apartments. VOA Saratoga and NHO are general partners of
SPNII;
E. WHEREAS on or about July 29, 1996, VOA National entered into a
property management agreement with SPNII for VOA National's management of
Saratoga Palms North II Apartments ("SPNII Management Agreement");
F. WHEREAS SPNII, XXXXXX, XXX and VOA Saratoga entered into a
Development Agreement, an Amended and Restated Development Agreement and
Addendum to Development Agreement (collectively the "SPNII Development
Agreement") to facilitate the construction of the Saratoga Palms North
II Apartments.
G. WHEREAS a dispute has arisen and exists between the parties with
respect to (1) VOA National's right to manage the Lake Tonopah Apartments
and the Saratoga Palms North II Apartments; and (2) the parties' respective
rights under the Development Agreements.
H. WHEREAS on or about June 5, 1998, VOA National filed a Complaint in
the District Court of Xxxxx County, Nevada (the "Court") as Case No. A389300
(the "Litigation") to adjudicate the rights of the parties with respect to the
above referenced dispute;
NOW, THEREFORE, the parties here by agree as follows:
1. No Admission of Liability: None of the parties admits any liability, but
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rather enters in this agreement for the sole purpose of resolving their disputed
claims without the cost and expense of litigation. All parties acknowledge that
they are represented by council of their choosing.
2. Recitals: The foregoing Recitals are true and correct and are
incorporated herein.
3. Payment of Settlement Funds:
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a. In consideration of the terms set forth herein, Xxxxxx shall pay to VOA
National, VOA Nevada and VOA Saratoga (collectively, the "VOA Entities") the
consideration set forth below, hereby valued at One Million Three Hundred Twenty
Five Thousand Dollars ($1,325,000.00) (the "Settlement Amount"), which the VOA
Entities may distribute among themselves in the manner that they choose.
(1) The sum of One Hundred Twenty Five Thousand Dollars ($125,000.00) shall
be paid in cash upon execution of this Agreement;
(2) The sum of One Hundred Thousand Dollars ($100,000.00) shall be paid in
cash on the first anniversary date of the execution of this Agreement;
(3) The sum of One Hundred Thousand Dollars ($100,000.00) shall be paid in
cash on the second anniversary date of the execution of this Agreement; and
(4) Shares of common stock, par value $0.001 per share (the "Common Stock"),
of Xxxxxx with an aggregate value of One Million Dollars ($1,000,000.00), with
such shares to be valued at the average closing market price of Xxxxxx'x Common
Stock on the NASDAQ Stock Market (or in the absence of any trading on any such
day the average of the closing bid and asked quotations) on each of last twenty
(20) trading days immediately preceding the date of this Agreement (the "VOA
Common Stock"). The VOA Entities shall be entitled to registration rights with
regard to the VOA Common Stock as set forth in Exhibit A attached hereto.
4. Transfer of Partnership Interests: In consideration of receipt of the
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Settlement Amount;
a. VOA Nevada hereby conveys, transfers and assigns all rights, title and
interest to any and all partnership interest it holds in Tonopah LP to Tonopah
LLC.
b. VOA Saratoga hereby conveys, transfers and assigns all rights, title and
interest to any and all partnership interest it holds in SPNII and NHO.
5. Termination of Contract Rights: In consideration of the settlement terms
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set forth herein:
a. Tonopah LP and VOA National hereby agree to terminate the Tonopah
Management Agreement upon execution of this Agreement. Each party agrees to
relinquish and waive any and all rights it holds under the Tonopah Management
Agreement, and release the other from all obligations under the Tonopah
Management Agreement.
b. Tonopah LP, Xxxxxx, Tonopah LLC and VOA Nevada hereby agree to terminate
the Tonopah Development Agreement upon execution of this Agreement. Each party
agrees to relinquish and waive any and all rights it holds under the Tonopah
Development Agreement, and release the other from all obligations under the
Tonopah Development Agreement.
c. SPNII and VOA National hereby agree to terminate the SPNII Management
Agreement upon execution of this Agreement. Each party agrees to relinquish and
waive any and all rights it holds under the SPNII Management Agreement, and
release the other from all obligations under the SPNII Management Agreement.
d. SPNII, Xxxxxx, XXX and VOA Saratoga hereby agree to terminate the SPNII
Development Agreement upon execution of this Agreement. Each party agrees to
relinquish and waive any and all rights it holds under the SPNII Development
Agreement, and release the other from all obligations under the SPNII
Development Agreement.
6. Release and Indemnification:
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a. Except with respect to obligations created by or arising out of this
Agreement, the VOA Parties (including VOA Las Vegas Affordable Housing
Corporation I, a non-for-profit corporation), for themselves and for their
respective former and current successors, assigns, affiliates, agents,
attorneys, representatives, consultants, partners, officers, directors,
shareholders, employees and insurers (the "VOA Releasors"), and for each of
them, hereby remise, release, acquit and forever discharge Tonopah LP, Tonopah
LLC, Xxxxxx, SPNII, Northtown Development, Ltd., and NHO (collectively, the
"Xxxxxx Parties") and their respective former and current successors, assigns,
affiliates, agents, attorneys, representatives, partners, officers, directors,
shareholders, employees and insurers and each of them, from any and all manner
of actions, suits, liens, debts, dues, damages, claims (including without
limitation, claims under contracts or other agreements of any kind),
liabilities, judgments, bonds, executions or demands (collectively, "Claims") of
whatever nature, kind of description whatsoever, known and unknown, suspected
and unsuspected, disclosed and undisclosed, fixed and contingent, whether
directly of by way of indemnity, contribution or otherwise, which the VOA
Releasors ever had, now have or hereafter can, shall or may have by reason of
any matter, cause of circumstance whatsoever arising or occurring prior to the
date of this Agreement, including without limitation all Claims: (1) that were
asserted or could have been asserted in the Litigation; and (2) arise out of or
relate in any way to the Lake Tonopah Apartments, the Tonopah Management
Agreement, the Tonopah Development Agreement the Saratoga Palms North I
Apartments, the Saratoga Palms North II Apartments, the SPNII Management
Agreement or the SPNII Development Agreement.
b. Except with respect to obligations created by or arising out of this
Agreement, the Xxxxxx Parties, for themselves and for their respective former
and current successors, assigns, affiliates, agents, attorneys, representatives,
partners, officers, directors, shareholders, employees and insurers, and for
each of them, hereby remise, release, acquit and forever discharge the VOA
Parties (including VOA Las Vegas Affordable Housing Corporation I, a
non-for-profit corporation), and their respective former and current successors,
assigns, affiliates, agents, attorneys, representatives, partners, officers,
directors, shareholders, employees and insurers and each of them, from any and
all manner of Claims of whatever nature, kind or description whatsoever, known
and unknown, suspected and unsuspected, disclosed and undisclosed, fixed and
contingent, whether directly or by way of indemnity, contribution or otherwise,
which the Tonopah Releasers ever had, now have or hereafter can, shall or may
have by reason of any matter, cause or circumstance whatsoever arising or
occurring prior to and including the date of this Agreement, including without,
limitation all Claims (1) that were asserted or could have been asserted in the
Litigation; and (2) arise out of relate in any way to the Lake Tonopah
Apartments, the Tonopah Management Agreement, the Tonopah Development Agreement,
the Saratoga Palms North I Apartments, the Saratoga Palms North II Apartments,
the SPNII Management Agreement or the SPNII Development Agreement.
c. It is the intention of each of the parties to fully and finally settle
and release all Claims between them. Each party hereby acknowledges that such
party is aware that such party may later discover facts in addition to or
different from those which such party now knows or believes to be true with
respect to the subject matter of this Agreement and that it is such the party's
intention, notwithstanding, to fully, finally and forever settle and release all
of the claims released by this Agreement, known or unknown, suspected, or
unsuspected, which now exist, may exist or previously existed between the
parties. In furtherance of such intention, the releases given in this Agreement
shall be and shall remain in effect as full and completed releases,
notwithstanding the discovery or existence of any such additional or different
facts. The parties further accept and assume the risk that such facts may turn
out to be different from the facts now known or believed to be true by the
parties and agree that the releases given in this Agreement shall remain in all
respects effective and shall not be subject to termination or rescission by
reason of any such difference in fact.
7. Dismissal of Litigation: Concurrently with the execution of this
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Agreement, VOA National, Xxxxxx, Tonopah LP, SPNII and NHO shall execute a
stipulation and order to dismiss the Litigation with prejudice. Each party
shall bear its own attorney's fees and costs (the "Stipulation").
Notwithstanding the foregoing, the parties hereby stipulate and agree that the
Court shall retain jurisdiction over the enforcement of this Agreement.
8. Additional Documentation: Cooperation: Each party shall, upon the
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request of the other, execute, acknowledge and deliver to the other party any
instrument that may be required in order to carry out the terms of this
Agreement. Each party appears to cooperate to effectuate the terms of this
Agreement and shall take all appropriate action necessary or useful in doing so.
9. Representations and Warranties:
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a. The parties hereto represent and warrant that they have read and
understood this Agreement and that they are the parties legally entitled to
settle and release every Claim herein referred to and to give a valid, full and
final acquittance therefor.
b. Each of the parties represents and warrants that it has full power and
authority to execute this Agreement and that the Agreement, when executed and
delivered, constitutes its valid and binding agreement.
c. Each of the signatories hereto represents and warrants that he or she has
been duly authorized to execute this Agreement on behalf of the party or parties
for whom she or he signs.
d. This Agreement contains the entire agreement and understanding between
the parties concerning the subject matter thereof, and supersedes and replaces
all prior negotiations and agreements, written or oral. No waiver, amendment or
modification of any of the provisions of this Agreement shall be of any force or
effect unless contained in writing signed by each of the parties hereto. Each
party hereto acknowledges that no other party, and no agent or attorney of any
other party, has made any promise, representation or warranty whatsoever,
express or implied, not contained in this Agreement to induce the execution of
such document and each party hereto acknowledges that he, she or it has not
executed any of these documents in reliance upon any promise, representation or
warranty not expressly contained therein.
e. Each party hereto represents and warrants that is has not heretofore
assigned or transferred, or purported to assign or transfer, to any firm,
corporation, entity or person, any of the Claims herein released, and knows of
no third party that asserts or purports to have an interest in any such released
Claim.
f. The Xxxxxx Parties represent and warrant that all necessary approvals
(e.g., corporate, governmental, lender, etc.) have been obtained to effectuate
the intents and purposes of this Agreement.
10. Miscellaneous:
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a. This Agreement is binding upon the parties' heirs, successors, assigns,
employees, agents, representatives, or anyone claiming by or through them.
b. This Agreement shall be governed by and construed in accordance with the
laws of Nevada. Any controversy or claim arising from or relating to this
Agreement, the Lake Tonopah Apartments, the Tonopah Management Agreement, the
Tonopah Development Agreement, the Saratoga Palms North II Apartments, the SPNII
Management Agreement or the SNPII Development Agreement shall be resolved by
the Court, pursuant to the reservation of jurisdiction set forth in Section 7,
hereof. To the extent the Court does not, or chooses not to retain jurisdiction
over the aforementioned matters, any controversy or claim shall be resolved via
binding arbitration in Xxxxx County, Nevada, under the Commercial Arbitration
Rules of the American Arbitration Association. Judgement on the arbitration
decision or award may be entered in any court having jurisdiction. The
prevailing party in any such proceeding shall be entitled to recover all
expenses, including reasonable attorneys' fees and nontaxable costs, incurred
with respect thereto.
c. Time is of the essence for this Agreement.
d. This Agreement has been negotiated between the parties. Any rule of
construction regarding construing the terms or language hereof against the
drafter shall have no bearing or effect.
e. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. Telecopy transmittals ("faxes") of this Agreement and
faxes of signatures hereon, respectively shall be deemed originals thereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first set forth above.
VOA NATIONAL: VOA NEVADA:
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VOA National Housing Corporation, VOA Nevada Affordable Housing Inc.,
Louisiana not-for-profit corporation a Nevada not-for-profit
By: __________________________ By: ____________________________
Name: Xxx Xxxxxxxxx Name: Xxx Xxxxxxxxx
Title: Senior Vice President Title: Assistant Secretary
VOA SARATOGA: XXXXXX:
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VOA Saratoga Affordable Housing Xxxxxx Incorporated, a Nevada
Corporation II, a Nevada Not-for-profit Corporation
corporation
By: __________________________ By: ____________________________
Name: Xxx Xxxxxxxxx Name: Xxxxx X. Xxxxxx, President
Title: Assistant Secretary
TONOPAH LP: SPNII:
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Lake Tonopah Limited Partnership, a Saratoga Palms North II Limited
Nevada limited partnership Partnership, a Nevada limited
partnership
By: Lake Tonopah Limited Liability By: Nevada Housing Opportunities LLC
Company, a Nevada limited liability a Nevada limited liability
company, its general partner company, its general partner
By: Tonopah Manager, Inc., a Nevada By: Xxxxxx, Incorporated,
Corporation, its managing member a Nevada corporation, its
managing member
By: By:
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Xxxxx X. Xxxxxx, President Xxxxx X. Xxxxxx, President
TONOPAH LLC: NHO:
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Lake Tonopah Limited Liability Nevada Housing Opportunities LLC, a
Company, a Nevada limited liability Nevada limited liability company
company
By: Tonopah Manager, Inc., a Nevada By: Xxxxxx Incorporated, a Nevada
corporation, its managing member corporation, its managing member
By: _______________________ By: _______________________
Xxxxx X. Xxxxxx, President Xxxxx X. Xxxxxx, President
VOA Las Vegas Affordable Housing Northtown Development, Ltd., a
Corporation I, a Nevada not-for-profit dissolved California limited
Corporation partnership
By: ___________________________ By: ________________________________
Name: Xxx Xxxxxxxxx Xxxxx X. Xxxxxx, General Partner
Title: Assistant Secretary
EXHIBIT A
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REGISTRATION RIGHTS
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(A) In connection with the registration of the VOA Common Stock pursuant to
Section 3(a)(4) of the Settlement Agreement, Xxxxxx will:
(i) Prepare and file with the Securities and Exchange Commission within 30
days after the date of the Settlement Agreement a registration statement under
the Securities Act of 1933 (the "1933 Act") on an appropriate form under Rule
415 under the 1933 Act or any similar rule that may be adopted by the SEC (the
"Registration Statement"), with respect to the offer and sale of the VOA Common
Stock by the VOA Entities from time to time in accordance with the methods of
distribution elected by the VOA Entities and set forth in such Registration
Statement, and use its reasonable best efforts to cause such Registration
Statement to become effective for such period as may be reasonably necessary to
effect the sale of the VOA Common Stock by the VOA Entities; provided, however,
that Xxxxxx shall not be obligated to cause such registration statement to
become or remain effective past the second anniversary of the date of the
Settlement Agreement; or such later date after which the VOA Entities shall be
able to sell the VOA Common Stock without the need to comply with paragraphs
(c), (e), (f),and (h) of Rule 144 under the 1933 Act; provided, further, that in
the event that Xxxxxx proposes to undertake an underwritten public offering
immediately prior to the filing of or during the pendency of effectiveness of
such registration statement, the VOA Entities will be entitled to join the
underwritten offering with respect to all or a portion of the VOA Common Stock
requested by the VOA Entities to be included therein (subject to the approval of
the managing underwriter, which may exclude such shares entirely or require pro
rata cut-back with other selling shareholders) and, to the extent they do not so
join such underwritten offering, the VOA Entities shall, if so required by the
underwriters, execute a "lock-up" agreement with respect to the sale or other
disposition of any VOA Common Stock not so included or permitted to be included
for a period commencing with the date of the initial offering of shares by the
underwriters and ending 135 days thereafter. The term "Registration Statement"
shall include any amendments and supplements thereto, including any
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein. The term "Prospectus" shall mean a prospectus included in the
Registration Statement (including a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the 0000 Xxx) as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of the VOA Common Stock.
(ii) prepare and file with the Securities and Exchange Commission such
amendments to such registration statement and supplements to the Prospectus
contained therein as may be necessary to keep such Registration Statement
effective for such period set forth herein;
(iii) furnish to the VOA Entities such reasonable number of copies of the
registration statement, preliminary prospectus, final prospectus and such other
documents as such VOA Entities may reasonably request in order to facilitate the
public offering of such shares of VOA Common Stock by the VOA Entities;
(iv) promptly take action necessary to (x) make the Registration Statement,
and any amendment thereto, and any Prospectus forming a part thereof, and any
amendment or supplement thereto (and each report or other document incorporated
therein by reference, in each case) comply in all material respects with the
1933 Act, the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, (y) to correct any Registration Statement, which, when
it becomes effective, contains 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, and (z) to correct any Prospectus forming a
part of any Registration Statement which includes an untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements, in light of the circumstances under which they were made, not
misleading.
Upon the occurrence of any event contemplated in clauses (y) or (z) above,
such actions shall include preparing a post-effective amendment to any
Registration Statement or any amendment or supplements to the Prospectus or to
file any other document necessary to cure such deficiency. Xxxxxx agrees to
promptly notify the VOA Entities of the occurrence of any event contemplated in
clauses (y) or (z) above.
(v) (1) Advise the VOA Entities, promptly after it receives notice or
obtains knowledge, of (1) the issuance of any stop order by the Securities and
Exchange Commission suspending the effectiveness of such Registration Statement
or the initiation or threatening of any proceeding for that purpose, or (2)
suspension of the qualification of any VOA common stock for sale in any
jurisdiction or the initiation of any proceeding for such purpose, and promptly
use its reasonable best efforts to prevent the issuance of any stop order, or
such suspension, and to obtain the withdrawal of such stop order or suspension
should it be issued.
Each VOA Entity, upon receipt of any notice from Xxxxxx of the happening of
any event of the kind described in Section (A)(iv)(y) or (z), or (v), will
forthwith discontinue disposition of shares of VOA Common Stock until each VOA
Entity's receipt of the copies of the supplemented or amended prospectus
contemplated by Section (A)(iv) or until it is advised in writing by Xxxxxx that
the use of the Prospectus may be resumed and has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus. If so directed by Xxxxxx, each VOA Entity will deliver to Xxxxxx
all copies, other than permanent file copies then in each VOA Entity's
possession, of the Prospectus required to be supplemented or amended.
(B) Notwithstanding anything to the contrary herein, if at any time after
the filing of a registration statement or after it is declared effective by the
Securities and Exchange Commission, Xxxxxx determines, in its reasonable good
faith business judgement, that such registration and the offering of shares of
VOA Common Stock covered by such registration would adversely affect in any
material way any financing, acquisition, corporate reorganization or other
material transaction or development involving Xxxxxx or any of its subsidiaries
or require Xxxxxx to disclose material matters that otherwise would not be
required to be disclosed at such time and such disclosure of material matters
would adversely affect Xxxxxx in a material way, then Xxxxxx may require the
suspension of the distribution of any share of (VOA Common Stock (a "Blackout
Period") by giving notice to the VOA Entities; provided, however, that Xxxxxx
shall use reasonable efforts to cause all Blackout Periods hereunder not to
exceed a total duration of four (4) months in any 12-month period. Any such
notice need not specify the reasons for such suspension if Xxxxxx determines, in
its reasonable good faith business judgement, that doing so would adversely
affect in a material way such transaction or development or would result in the
disclosure of material nonpublic information. In the event that such notice is
given, then until Xxxxxx has determined, in its reasonable good faith business
judgment, that such registration and distribution would no longer materially
interfere with the matters described in the preceding sentence and has given
notice thereof to the VOA Entities, Xxxxxx'x obligations hereunder will be
suspended. Xxxxxx shall extend the period of time Xxxxxx is required to
maintain effective any registration statement required pursuant to clauses (i)
and (ii) hereof by a length of time equal to the aggregate length of the
Blackout Periods.
(C) Xxxxxx'x obligations to the VOA Entities will be conditioned on each VOA
Entity's compliance with the following:
(i) Each VOA Entity will cooperate with Xxxxxx in connection with the
preparation of the applicable registration statement, and for so long as Xxxxxx
is obligated to keep such registration statement effective, each VOA Entity will
provide to Xxxxxx, in writing in a timely manner, for use in such registration
statement (and expressly identified in writing as such), all information
regarding each VOA Entity and such other information as may be necessary and
required by applicable law to enable Xxxxxx to prepare such registration
statement and the related prospectus covering the applicable shares of VOA
Common Stock and to maintain the currency and effectiveness thereof;
(iii) Each VOA Entity will enter into such agreements with Xxxxxx and any
broker-dealer or similar securites industry professional containing
representations, warranties, indemnities and agreements as are customarily
entered into and made by a seller of securities and seller's controlling
shareholders with respect to secondary.
(iv) during such time as any VOA Entity may be engaged in a distribution of
the VOA Common Stock, such VOA Entity will comply with all applicable laws,
including Regulation M promulgated under the Securities Exchange Act of 1934,
and, to the extent required by such laws, will, among other things: (a) not
engage in any stabilization activity in connection with the securities of Xxxxxx
in contravention of such rules; (b) distribute the shares of VOA Common Stock
acquired by it solely in the manner described in the applicable registration
statement; (c) if required by applicable law, rules or regulations, cause to be
furnished to each agent or broker-dealer to or through whom such shares may be
offered, or to the offeree if an offer is made directly by such VOA Entity, such
copies of the applicable prospectus (as amended and supplemented to such date)
and documents incorporated by reference therein as may be required by such
agent, broker-dealer or offeree, provided that Xxxxxx shall provide such VOA
Entity with an adequate number of copies thereof; and (d) not bid for or
purchase any securities of Xxxxxx;
(v) on notice from Xxxxxx of the happening of any of the events specified in
Section (A)(iv) or (v), or that, as set forth in section (B), it requires the
suspension by the VOA Entities of the distribution of any of the shares of VOA
Common Stock owned by the VOA Entities, then the VOA Entities will cease
offering or distributing the shares of VOA Common Stock owned by the VOA
Entities until the offering and distribution of the shares of VOA Common Stock
owned by the VOA Entities may recommence in accordance with the terms hereof and
applicable law; and the VOA Entities shall not sell more than 10,000
shares, in the aggregate, of VOA Common Stock during any one month pursuant to
any registration statement provided for hereunder or otherwise.
(D) Xxxxxx shall pay all expenses incurred by Xxxxxx in complying with the
obligations hereunder. Fees and disbursements of counsel and accountants for
the VOA Entities, underwriting discounts and commissions and transfer taxes for
the VOA Entities and any other expenses incurred by the VOA Entities shall be
borne by the VOA Entities.
(E) The registration rights granted to the VOA Entities pursuant hereto are
not assignable. Any assignment shall be null and void ab initio.
(F) Each VOA Entity acknowledges that (i) it is an "accredited investor"
within the meaning of Regulation D promulgated under the 1933 Act, (ii) it is
acquiring the shares of VOA Common Stock for its own account, and (iii) that it
is not acquiring the shares of VOA Common Stock with a view to any distribution
theory within the meaning of the 1933 Act. Accordingly, each VOA Entity agrees
that it will not offer or sell shares of VOA Common Stock other than (x)
pursuant to an effective registration statement under the 1933 Act or (y)
pursuant to any exemption from the registration requirements of the 1933 Act.
(G) Each VOA Entity acknowledges that the shares of VOA Common Stock have
not been and will not, except as provided herein, be registered under the 1933
Act.
(H) Each VOA Entity acknowledges that shares of VOA Common Stock it acquires
hereunder will contain customary 1933 Act legends.
(I) Indemnification
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(i) Indemnification by Company. Xxxxxx agrees to indemnify and hold
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harmless each holder of VOA Common Stock, any officer, director, employee or
agent of any such holder and any person or entity who controls any such party
within the meaning of either Section 15 of the 1933 Act of Section 20 of the
Exchange Act (each, and "Indemnified Holder") from and against any and all loss,
claim, damages, liability or expense (including the reasonable costs of
investigation and legal expenses ("Claims") arising out of or based upon any
untrue statement of a material fact contained in any Registration Statement
(including all material and documents incorporated therein by reference) or the
omission or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or arising
out of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made not misleading except insofar as such
untrue statement or alleged untrue statement or omission or alleged omission was
based upon information furnished in writing to Xxxxxx by such Indemnified Holder
expressly for use in the document containing such untrue statement or alleged
untrue statement or omission or alleged omission.
(ii) Indemnification Procedures. If any action or proceeding (including any
governmental investigation or inquiry) shall be brought or asserted against an
Indemnified Holder in respect of which indemnity may be sought from Xxxxxx, such
Indemnified Holder shall promptly notify Xxxxxx in writing, and Xxxxxx shall
assume the defense thereof, including the employment of counsel satisfactory to
such Indemnified Holder and the payment of all expenses.
Such Indemnified Holder shall have the right to employ separate counsel in
any such action and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be the expense of such Indemnified
Holder unless (i) Xxxxxx has agreed to pay such fees and expenses, (ii) Xxxxxx
shall have failed to assume the defense of such action or proceeding or has
failed to employ counsel satisfactory to such Indemnified Holder in any such
action or proceeding or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Holder and
Xxxxxx, and such Indemnified Holder shall have been advised by counsel that
there may be one or more legal defenses available to such Indemnified Holder
that are different from or additional to those available to Xxxxxx.
If such Indemnified Holder notifies Xxxxxx in writing that it elects to
employ separate counsel at the expense of Xxxxxx as permitted by the provisions
of the preceding Section, Xxxxxx shall not have the right to assume the defense
of such action or proceeding on behalf of such Indemnified Holder. The
foregoing notwithstanding, Xxxxxx shall not be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time for such
Indemnified Holder and any other Indemnified Holders (which firm shall be
designated in writing by such Indemnified Holders) in connection with any one
such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances.
(iii) Indemnification by Holder of VOA Common Stock. Each (holder of VOA
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Common Stock) agrees to indemnify and hold harmless Xxxxxx, its directors and
officers and each Person, if any, who controls Xxxxxx within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from Xxxxxx to such holder, but only with
respect to information relating to such holder furnished in writing by such
holder expressly for use in any Registration Statement, Prospectus or
preliminary Prospectus. In no event, however, shall the liability hereunder of
any selling holder of VOA Common Stock be greater than the amount of proceeds
received by such holder upon the sale of the VOA Common Stock.
In case any action or proceeding shall be brought against Xxxxxx or its
directors or officers of any such controlling person, in respect of which
indemnity may be sought against a holder of VOA Common Stock, such holder shall
have the rights and duties given Xxxxxx and Xxxxxx or its directors or officers
or such controlling person shall have the rights and duties given to each
Indemnified Holder by Sections I (i) and I (ii) above.
(iv) Contribution. If the indemnification provided for in this Section I
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(iv) is unavailable to an indemnified party under Section I (i) or Section I
(iii) above (other than by reason of exceptions provided in those sections) in
respect of any Claims referred to in such sections, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such Claims in such proportion as in appropriate to reflect the relative
fault of Xxxxxx on the one hand and of the Indemnified Holder on the other in
connection with the untrue statements or omissions which resulted in such Claims
as well as any other relevant equitable considerations. The amount paid or
payable by a party as a result of the Claims referred to above shall be deemed
to include, subject to the limitations set forth in Section I (ii), any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
The relative fault of Xxxxxx on the one hand and of the Indemnified Holder
on the other shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement or omission or alleged omission
relates to information supplied by Xxxxxx or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or alleged untrue statement or omission
or alleged omission.
Xxxxxx and each holder of VOA Common Stock agree that it would not be just
and equitable if contribution pursuant to this Section I (iv) 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.
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.
