Exhibit 10.44
FORM OF
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is entered into by
and between Apollo International of Delaware, Inc., a Delaware corporation (the
"Company"), and the person whose name appears on the signature page attached
thereto (individually a "Holder" and, together with the holders of other Notes
(defined below) of the Company, hereinafter described as the "Holders").
RECITALS:
WHEREAS, Holder has made a loan (the "Loan") to the Company evidenced by
a loan and security agreement (the "Loan Agreement") and a secured convertible
promissory note (the "Note"); and
WHEREAS, Holder's Loan is part of an aggregate of approximately
$1,000,000 loaned to the Company by other participating lenders in varying
principal amounts on the same terms and conditions as Holder's Loan, with each
participating lender entering into a loan and security agreement with the
Company and receiving a secured convertible promissory note (which notes,
together with Holder's Note, are hereinafter referred to collectively as the
"Notes"); and
WHEREAS, the Holder's Note is convertible into shares of the Company's
common stock, $.01 par value (the "Common Stock") at a conversion price of $3.25
(the "Conversion Price"), commencing ninety days (90) from the date of the Note;
and
WHEREAS, pursuant to the terms of the Loan Agreement, the Company has
agreed to enter into this Agreement and grant to the Holder the registration
rights herein.
NOW, THEREFORE, in consideration of the Loan and the mutual covenants
contained herein, the Company hereby agrees as follows:
1. RECITALS. The foregoing recitals are true and correct and are
incorporated herein by this reference.
2. CERTAIN DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
"COMMISSION" shall mean the Securities and Exchange Commission.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXISTING SHAREHOLDERS" shall mean those persons and entities holding
Common Stock or securities convertible into or exercisable for Common Stock of
the Company.
CLOSING DATE" shall mean the date of the Note.
"REGISTRABLE STOCK" shall mean the shares of Common Stock issuable
and issued upon conversion of the Note, excluding Common Stock (a) which has
been included a registration statement filed with the Commission under the
Securities Act and declared effective by the Commission, or (b) which could be,
in the opinion of counsel to the Company, publicly sold as of the date in
question pursuant to Rule 144 under the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"CONVERSION SHARES" shall mean the Common Stock issuable or issued
upon the conversion of the Note.
3. DEMAND REGISTRATION.
(a) At any time commencing on July 11, 1999 and terminating on a
date that is three (3) years from and after the date of this Agreement, provided
the Company has not effected a registration of the Registrable Stock under the
Securities Act, the Holders of not less than $500,000 in original principal
amount of the Notes (the "Initiating Holders") may request in writing (the
"Request") that the Company use its reasonable best efforts to register under
Rule 415 of the Securities Act all or any portion of the Registrable Stock held
by such Initiating Holders provided that the shares of Registrable Stock for
which such registration has been requested shall constitute at least 50% of the
total number of shares of Registrable Stock. Within twenty (20) days after
receipt of the Request, the Company shall give written notice of such requested
registration to all other Holders who were not parties to the Request. The
Company will include in such registration pursuant to this Section 3 (subject to
allocation as set forth in this Section 3) in addition to the Registrable Stock
specified in the Request all other Registrable Stock with respect to which the
Company has received written requests for inclusion within ten (10) days after
the Company's mailing of such notice.
(b) The Company's obligation to register Registrable Stock pursuant
to this Section 3 shall in all cases be subject to the following limitations and
qualifications:
(i) The Company: (A) shall be required to effect only one such
registration pursuant to this Section 3 and (B) shall not be obligated to file a
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registration statement at any time if a special audit of the Company would be
required by the rules and regulations of the Commission; and
(ii) The Company shall be entitled to postpone for a reasonable
period of time not to exceed 180 days, the filing of any registration statement
if it determines that such registration would materially interfere with any
pending financing, acquisition, corporate reorganization or other material
transaction involving the Company, or would be seriously detrimental to the
Company and its shareholders, and promptly notifies the Holders of such
determination and the reasons therefor. In the event of such postponement, the
Company shall bear the cost of a special audit of the Company if required by the
rules and regulations of the Commission as a result of such postponement.
(c) The Company shall be entitled to include in any registration
statement referred to in this Section 3, shares of Common Stock to be sold by
Existing Shareholders.
4. INCIDENTAL REGISTRATION.
(a) If the Company at any time proposes to register any of its
Common Stock under the Securities Act for sale to the public, whether for its
own account or for the account of other security holders or both (except in
connection with registration statements on Forms X-0, Xxxx X-0 or another form
not available for registering the Registrable Stock for sale to the public), and
provided the managing underwriter for the proposed offering, if any, advised the
Company that the inclusion of the Registrable Stock in such registration
statement would not jeopardize the successful marketing of the Company's
securities, in the managing underwriter's exercise of reasonable judgment, then
the Company shall at such time give prompt written notice to the Holder of its
intention to effect such registration setting forth a description of intended
method of distribution and indicating Holder's right under such proposed
registration, and upon the request of the Holder delivered to the Company within
twenty (20) days after giving such notice (which request shall specify the
Registrable Stock intended to be disposed of by the Holder), the Company shall
include such Registrable Stock held by the Holder and requested to be included
in such registration, subject to any underwriter's cutback or lock-up of the
Registrable Stock which such underwriters may unilaterally impose.
(b) If, at any time after giving such written notice of the
Company's intention to register any of the Registrable Stock and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to file the
registration statement wherein the Registrable Stock would be registered or to
delay the registration of such Registrable Stock, at its sole election, the
Company may give written notice of such determination to the Holders and
thereupon shall be relieved of its obligation to register any Registrable Stock
issued or issuable in connection with such registration (but not from its
obligation to pay
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registration expenses in connection therewith or to register the Registrable
Stock in a subsequent registration).
(c) The Company shall not be required to include any of the
Registrable Stock in the registration statement relating to an underwritten
offering of the Company's securities unless the Holder accepts the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it, if any (provided such terms are usual and customary for selling
stockholders) and the Holder agrees to execute and/or deliver such documents in
connection with such registration as the Company or the managing underwriter may
reasonably request.
(d) The Company may, in its sole discretion and without the consent
of the Holder, withdraw such registration statement and abandon the proposed
offering in which the Holder had requested to participate, but such abandonment
shall not preclude subsequent request for registration pursuant to this Section
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5. EXPIRATION OF REGISTRATION RIGHTS. The obligations of the Company to
register shares of the Registrable Stock under Section 3 and Section 4 of this
Agreement shall terminate on the date that is three (3) years from and after the
date of this Agreement, unless such obligations terminate earlier in accordance
with the terms of this Agreement.
6. COOPERATION WITH THE COMPANY. The Holder will cooperate with the
Company in all respects in connection with this Agreement, including, without
limitation, timely supplying all information reasonably requested by the Company
and executing and returning all documents reasonably requested in connection
with the registration and sale of the Registrable Stock.
7. EXPENSES. All expenses incurred by the Company in registering the
Registrable Stock, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of any counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars and costs of insurance ("Registration
Expenses") shall be borne by the Company. However, Registration Expenses shall
not include expenses of counsel for the Holder, any underwriting discounts,
selling commissions and underwriter expense reimbursement allowances applicable
to the sale of the Registrable Stock ("Selling Expenses"). The Company will pay
all Registration Expenses in connection with each registration of the
Registrable Stock pursuant to the provisions of this Agreement. All Selling
Expenses in connection with each such registration statement shall be borne by
the participating sellers in proportion to the number of shares sold by each, or
by such participating sellers other than the Company (except to the extent the
Company shall be a seller) as they may agree.
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8. INDEMNIFICATION AND CONTRIBUTION.
(a) COMPANY INDEMNITY. In the event of a registration of any of the
Registrable Stock under the Securities Act pursuant to the provisions of this
Agreement, the Company shall indemnify and hold harmless, to the extent
permitted by law, the Holder, each underwriter of such Registrable Stock
thereunder and each other person, if any, who controls such Holder or
underwriter within the meaning of the Securities Act, against any losses,
claims, damages, liabilities and expenses, joint or several, to which such
Holder, underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities and expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Registrable Stock was
registered under the Securities Act pursuant to the provisions of this
Agreement, any preliminary prospectus or final prospectus contained therein, or
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 each such Holder, each such underwriter and each such controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, and
expense or action; provided that the Company will not be liable in any such case
if and to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon: (i) an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by any such seller, any such underwriter or any such controlling
person in writing specifically for use in such registration statement or
prospectus; or (ii) the Holder's failure to deliver a copy of the final
prospectus as then amended or supplemented after the Company has furnished the
Holder with a sufficient number of copies of the same, but only if delivery of
same is required by law and the same would have cured the defect giving rise to
any such loss, claim, damage, liability or expense.
(b) HOLDER INDEMNITY. In the event of a registration of any of the
Registrable Stock under the Securities Act pursuant to the provisions of this
Agreement, the Holder will indemnify and hold harmless the Company, each person,
if any, who controls the Company within the meaning of the Securities Act, each
officer of the Company who signs the registration statement, each director of
the Company, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims, damages,
liabilities and expenses, joint or several, to which the Company or such
officer, director, underwriter or controlling person may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages,
liabilities and expenses (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement under which such
Registrable Stock was registered under the Securities Act pursuant to the
provisions of this Agreement, any preliminary prospectus or final prospectus
contained therein, or 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
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to make the statements therein not misleading, and will reimburse the Company
and each such officer, director, underwriter and controlling person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damages, liability, expense or
action; provided that such Holder will be liable hereunder in an amount not to
exceed the net proceeds received by such seller in the sale of its Registrable
Stock pursuant to such registration statement and, in any such case, if and only
to the extent that any such loss, claim, damage, liability, expense or action
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in conformity with
information pertaining to such Holder furnished in writing to the Company by
such Holder specifically for use in such registration statement or prospectus.
(c) NOTICE; RIGHT TO DEFEND. Promptly after receipt by an indemnified
party hereunder of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party, in writing thereof,
but the omission so to notify the indemnifying party shall not relieve it from
any such liability and shall only relieve it from any liability which it may
have to such indemnified party if such indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party under this Section 8 to such effect, the
indemnifying party shall not be liable for any legal expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation and of liaison with counsel so selected;
provided that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party, the
indemnified party shall have the right to select a separate counsel and to
assume such legal defenses and otherwise participate in the defense of such
action, with the expenses and fees of such separate counsel and other expenses
related to such participation to be reimbursed by the indemnifying party as
incurred.
(d) CONTRIBUTION. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
either: (i) the Holder of Registrable Stock exercising rights under this
Agreement, or any controlling person of the Holder, makes a claim for
indemnification pursuant to this Section 8 but it is judicially determined (by
entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that this Section 8 provides for indemnification in such case; or (ii)
contribution under the Securities Act may be required on the part of the Holder
or any such controlling person in circumstances for which indemnification is
provided under this Section 8, then, and in
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each such case, the Company and the Holder will contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject (after
contribution from others) in such proportion so that the Holder is responsible
for the portion represented by the percentage that the public offering price of
its Registrable Stock offered by the registration statement bears to the public
offering price of all securities offered by such registration statement (in an
amount in any case not to exceed the net proceeds received by such Holder in the
sale of its Registrable Stock pursuant to such registration statement), and the
Company is responsible for the remaining portion; provided that, in any such
case, no person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity who was not guilty of such fraudulent
misrepresentation.
(e) SURVIVAL OF INDEMNITY. The indemnification provided by this
Agreement shall be a continuing right to indemnification and shall survive the
registration and sale of any Registrable Securities by any person entitled to
indemnification hereunder and the expiration of this Agreement.
9. WAIVER. No waiver by any party of any condition or of any breach of
any provision of this Agreement shall be effective unless in writing.
10. NOTICES. All notices and other communications pursuant to this
Agreement shall be deemed to be sufficient if contained in a written instrument
and shall be deemed given if delivered personally, telecopied, sent by
nationally-recognized, overnight courier or mailed by registered or certified
mail (return receipt requested), postage prepaid, to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
(a) if to Parent, to:
Apollo International of Delaware, Inc.
0000 X. X.X. Xxxxxxx 00, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
(b) if to the Holder, to the address et forth below the Holder's
signature on the last page of this Agreement.
Any notice so addressed, when mailed by registered or certified mail shall be
deemed to be given three (3) days after so mailed, when telecopied shall be
deemed to be given when transmitted, or when delivered by hand or overnight
shall be deemed to be given when delivered.
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11. CONVERSIONS. The Company shall not be obligated to use its
reasonable best efforts to effect any registration of Registrable Stock issuable
in respect of the Note unless it has received a written agreement satisfactory
to it that such Note is to be converted to Common Stock prior to or upon
effectiveness of the related registration statement.
12. INVALIDITY OF PROVISIONS. If any provisions of this Agreement shall
be determined by a court of competent jurisdiction to be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not be affected thereby.
13. ENTIRE AGREEMENT. This Agreement contains the entire understanding
of the parties hereto in respect of the subject matter hereof, and supersedes
all prior negotiations and understandings, oral or written, between the parties
with respect to the subject matter hereof.
14. COUNTERPARTS; FACSIMILE SIGNATURES. This Agreement may be executed
in one or more counterparts, each of which shall be an original, but all of
which together shall constitute one and the same agreement. Facsimile signatures
hereon shall have the same legal force and effect as original signatures.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be enforceable by, and
shall inure to the benefit of and be binding upon, the parties and their
respective successors and assigns. As used herein, the term "successors and
assigns" shall mean, where the context so permits, heirs, executors,
administrators, trustees and successor trustees and personal and other
representatives.
16. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida applicable to contracts made
and to be performed therein.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
APOLLO INTERNATIONAL OF
DELAWARE, INC.
By:___________________________
Print Name:___________________
Its:__________________________
[SIGNATURES CONTINUED ON NEXT PAGE]
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[CONTINUATION OF SIGNATURE PAGE
TO REGISTRATION RIGHTS AGREEMENT]
HOLDER
___________________________
(Signature)
___________________________
(Print Name)
___________________________
(Print Title)*
___________________________
(Print Name of Company)*
___________________________
___________________________
(Print Address)
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*If an entity.
