REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of September ________, 2005, by and between REIT Americas, Inc.,
a Maryland corporation (the "Company"), and those purchasers that have executed
the signature page of this Agreement (the "Purchasers").
This Agreement is made pursuant to the Company's Confidential Private
Offering Memorandum, dated September 10, 2005 (as amended, modified or
supplemented from time to time, the "Memorandum"), and pursuant to the Note and
the Warrants referred to therein.
The Company and the Purchasers hereby agree as follows:
1. DEFINITIONS. Capitalized terms used and not otherwise defined herein
that are defined in the Memorandum shall have the meanings given such terms in
the Memorandum. As used in this Agreement, the following terms shall have the
following meanings:
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" means shares of the Company's common stock, par
value $0.001 per share.
"EFFECTIVENESS DATE" means (i) with respect to the initial
Registration Statement required to be filed hereunder, a date no later than one
hundred eighty (180) days following the Filing Date.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in
Section 2(a).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"FILING DATE" means, the date upon which the Company files a
Registration Statement with the Securities and Exchange Commission.
"HOLDER" or "HOLDERS" means the Purchasers or any of their
affiliates or transferees to the extent any of them hold Registrable Securities.
"INDEMNIFIED PARTY" shall have the meaning set forth in
Section 5(c).
"INDEMNIFYING PARTY" shall have the meaning set forth in
Section 5(c).
"NOTE" means the Promissory Note of even date herewith between
the parties hereto.
"PROCEEDING" means an action, claim, suit, investigation or
proceeding (including, without limitation, an investigation or partial
proceeding, such as a deposition), whether commenced or threatened.
"PROSPECTUS" means the prospectus included in the Registration
Statement (including, without limitation, a prospectus that includes any
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), 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 the Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"REGISTRABLE SECURITIES" means the shares of Common Stock
issuable upon exercise of the Warrants.
"REGISTRATION STATEMENT" means each registration statement
required to be filed hereunder, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
"RULE 144" means Rule 144 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"RULE 415" means Rule 415 promulgated by the Commission
pursuant to the Securities Act, as such Rule may be amended from time to time,
or any similar rule or regulation hereafter adopted by the Commission having
substantially the same effect as such Rule.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and any successor statute.
"TRADING MARKET" means any of the NASD OTC Bulletin Board,
the NASDAQ SmallCap Market, the Nasdaq National Market, the American Stock
Exchange or the New York Stock Exchange.
"WARRANTS" means the Common Stock Purchase Warrants issuable
under the Memorandum.
2. REGISTRATION. Subject to the Company having the Registrable
Securities listed or quoted on a trading exchange (OTC Bulletin Board, Nasdaq or
other such exchange), the Company will use its reasonable efforts to register
the Registrable Securities through "piggyback" registration when and if the
Company . All expenses of
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the "piggyback" registration shall be borne solely by the Company. Nothing
herein shall be construed as a guarantee by the Company that any registration
filed by the Company will be declared effective by the Commission nor shall
anything herein be construed to require the Company to file a registration
statement with the Commission within any timeframe. In the event a piggy back
registration does occur, the Company will keep such registration statement filed
pursuant to this paragraph, effective for so long as any holder of Registrable
Securities desires to dispose of the securities covered by such registration
statement, provided, however, that in no event shall the Company be required to
keep the registration statement effective for a period greater than one year
from the effective date of the registration (the "Effectiveness Period"). The
Company shall have no obligation under this Subsection if the Registrable
Securities may be sold without registration under Rule 144(k) and the Company's
transfer agent has accepted an instruction from the Company to such effect.
3. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions hereof to effect the registration of any Registrable Securities
under the Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission the Registration
Statement with respect to such Registrable Securities, respond as
promptly as possible to any comments received from the Commission, and
use its best efforts to cause the Registration Statement to become and
remain effective for the Effectiveness Period with respect thereto, and
promptly provide to the Purchasers copies of all filings and Commission
letters of comment relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the Prospectus used in
connection therewith as may be necessary to comply with the provisions
of the Securities Act with respect to the disposition of all
Registrable Securities covered by the Registration Statement and to
keep such Registration Statement effective until the expiration of the
Effectiveness Period;
(c) furnish to the Purchasers such number of copies of the
Registration Statement and the Prospectus included therein (including
each preliminary Prospectus) as the Purchasers reasonably may request
to facilitate the public sale or disposition of the Registrable
Securities covered by the Registration Statement;
(d) use its commercially reasonable efforts to register or
qualify the Purchasers' Registrable Securities covered by the
Registration Statement under the securities or "blue sky" laws of such
jurisdictions within the United States as the Purchasers may reasonably
request, provided, however, that the Company shall not for any such
purpose be required to qualify generally to transact business as a
foreign corporation in any jurisdiction where it is not so qualified or
to consent to general service of process in any such jurisdiction;
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(e) list the Registrable Securities covered by the
Registration Statement with any Trading Market on which the Common
Stock of the Company is then listed;
(f) immediately notify the Purchasers at any time when a
Prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event of which the Company has
knowledge as a result of which the Prospectus contained 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 light of the circumstances then existing; and
(g) make available for inspection by the Purchasers and any
attorney, accountant or other agent retained by the Purchasers, all
publicly available, non-confidential financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all publicly
available, non-confidential information reasonably requested by the
attorneys, accountants or agents of the Purchasers.
4. REGISTRATION EXPENSES. All expenses relating to the Company's
compliance with Sections 2 and 3 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, fees and expenses
(including reasonable counsel fees) incurred in connection with complying with
state securities or "blue sky" laws, fees of the NASD, transfer taxes, fees of
transfer agents and registrars, fees of, and disbursements incurred by, one
counsel for the Holders (to the extent such counsel is required due to Company's
failure to meet any of its obligations hereunder), are called "Registration
Expenses". All selling commissions applicable to the sale of Registrable
Securities, including any fees and disbursements of any special counsel to the
Holders beyond those included in Registration Expenses, are called "Selling
Expenses" and shall be the responsibility of the Purchasers. The Company shall
only be responsible for all Registration Expenses.
5. INDEMNIFICATION.
(a) In the event of a registration of any Registrable
Securities under the Securities Act pursuant to this Agreement, the
Company will indemnify and hold harmless each Purchaser, and their
respective officers, directors and each other person, if any, who
controls each Purchaser within the meaning of the Securities Act,
against any losses, claims, damages or liabilities, joint or several,
to which the Purchasers, or such persons may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement under which such
Registrable Securities were registered under the Securities Act
pursuant to this Agreement, any preliminary Prospectus or final
Prospectus
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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 the Purchasers,
and each such person for any reasonable legal or other expenses
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case if and to the extent that
any such loss, claim, damage or liability 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
or on behalf of the Purchaser or any such person in writing
specifically for use in any such document; (ii) relate to sales of
Registrable Securities by a Holder to the person asserting any such
losses, claims, damages or liabilities, if such person was not sent or
given a Prospectus by or on behalf of the Holder, if required by law so
to have been delivered, at or prior to the written confirmation of the
sale of the Registrable Securities to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities or (iii)
based upon the Holder's use of a Prospectus during a period when the
Holder has been notified that the use of the Prospectus has been
suspended.
(b) In the event of a registration of the Registrable
Securities under the Securities Act pursuant to this Agreement, each
Purchaser (subject to the provisions of Section 5(d)) will indemnify
and hold harmless the Company, and its officers, directors and each
other person, if any, who controls the Company within the meaning of
the Securities Act, against all losses, claims, damages or liabilities,
joint or several, to which the Company or such persons may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon: (i) any untrue statement or alleged untrue
statement of any material fact which was furnished in writing by such
Purchaser to the Company expressly for use in (and such information is
contained in) the Registration Statement under which such Registrable
Securities were registered under the Securities Act pursuant to 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 the Company and each such
person for any reasonable legal or other expenses incurred by them in
connection
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with investigating or defending any such loss, claim, damage, liability
or action, provided, however, that such Purchaser will be liable in any
such case if and only to the extent that any such loss, claim, damage
or liability arises out of or is based upon said Purchaser's untrue
statement or alleged untrue statement or omission or alleged omission
so made in conformity with information furnished in writing to the
Company by or on behalf of said Purchaser specifically for use in any
such document, or (ii) in connection with a sale of Registrable
Securities for which the Holder would not be entitled to
indemnification pursuant under Section 5(a)(ii) or 5(a)(iii).
Notwithstanding the provisions of this paragraph, no Purchaser shall be
required to indemnify any person or entity in excess of the amount of
the aggregate net proceeds received by said Purchaser in respect of
Registrable Securities in connection with any such registration under
the Securities Act.
(c) Promptly after receipt by a party entitled to claim
indemnification hereunder (an "Indemnified Party") of notice of the
commencement of any action, such Indemnified Party shall, if a claim
for indemnification in respect thereof is to be made against a party
hereto obligated to indemnify such Indemnified Party (an "Indemnifying
Party"), notify the Indemnifying Party in writing thereof, but the
omission so to notify the Indemnifying Party shall not relieve it from
any liability which it may have to such Indemnified Party other than
under this Section 5(c) and shall only relieve it from any liability
which it may have to such Indemnified Party under this Section 5(c) if
and to the extent the 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 reasonably satisfactory to
such Indemnified Party, and, after notice from the Indemnifying Party
to such Indemnified Party of its election so to assume and undertake
the defense thereof, the Indemnifying Party shall not be liable to such
Indemnified Party under this Section 5(c) for any legal expenses
subsequently incurred by such Indemnified Party in connection with the
defense thereof; if the Indemnified Party retains its own counsel, then
the Indemnified Party shall pay all fees, costs and expenses of such
counsel, provided, however, that, if the defendants in any such action
include both the Indemnified Party and the Indemnifying Party and if
counsel shall have reasonably concluded that there may be reasonable
defenses available to the Indemnified Party which are different from or
additional to those available to the Indemnifying Party or if the
interests of the Indemnified Party reasonably may be deemed to conflict
with the interests of the Indemnifying Party in either case which would
prohibit such counsel from representing both parties under applicable
conflicts of interest rules of professional ethics, the Indemnified
Party shall have the right to select one separate counsel and to assume
such legal defenses and otherwise to participate in the defense of such
action, with the reasonable expenses and fees of such separate counsel
and other expenses related to such participation to be reimbursed by
the Indemnifying Party as incurred. Neither party shall settle any
proceeding for which indemnification is sought without the written
consent of the other party, which shall not be unreasonably withheld.
(d) Notwithstanding any provision of this Agreement to the
contrary, each Purchaser shall be treated individually and separately
from all other Purchasers under this Section 5, and will neither (i)
become the subject of any obligation under this Section 5 as a result
of any action, failure to act, statement,
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omission, or otherwise of any other Purchaser hereunder, nor (ii)
benefit from the provisions of Section 5(a) as a result of any
indemnification obligation of the Company to any other Purchaser under
said Section.
6. MISCELLANEOUS.
(a) REMEDIES. In the event of a breach by the Company or by a
Holder, of any of their respective obligations under this Agreement,
each Holder or the Company, as the case may be, in addition to being
entitled to exercise all rights granted by law and under this
Agreement, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement.
(b) COMPLIANCE. Each Holder covenants and agrees that it (i)
will comply with the prospectus delivery requirements of the Securities
Act as applicable to it in connection with sales of Registrable
Securities pursuant to the Registration Statement and (ii) promptly
furnish to the Company all information required to be disclosed in the
Registration Statement and Prospectus concerning such Holder (including
information in order to make the information previously furnished to
the Company by such Holder not misleading) and any other information
regarding such Holder and the distribution of such Registrable
Securities as the Company may from time to time reasonably request.
(c) DISCONTINUED DISPOSITION. Each Holder agrees by its
acquisition of such Registrable Securities that, upon receipt of a
notice from the Company of the occurrence of a Discontinuation Event
(as defined below), such Holder will forthwith discontinue disposition
of such Registrable Securities under the applicable Registration
Statement until such Holder's receipt of the copies of the supplemented
Prospectus and/or amended Registration Statement or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of
any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus or Registration
Statement. The Company may provide appropriate stop orders to enforce
the provisions of this paragraph. For purposes of this Section 6(c), a
"Discontinuation Event" shall mean (i) when the Commission notifies the
Company whether there will be a "review" of such Registration Statement
and whenever the Commission comments in writing on such Registration
Statement (the Company shall provide true and complete copies thereof
and all written responses thereto to each of the Holders); (ii) any
request by the Commission or any other Federal or state governmental
authority for amendments or supplements to such Registration Statement
or Prospectus or for additional information; (iii) the issuance by the
Commission of any stop order suspending the effectiveness of such
Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv)
the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction, or the
initiation or
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threatening of any Proceeding for such purpose; (v) the occurrence of
any event or passage of time that makes the financial statements
included in such Registration Statement ineligible for inclusion
therein or any statement made in such Registration Statement or
Prospectus or any document incorporated or deemed to be incorporated
therein by reference untrue in any material respect or that requires
any revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or
Prospectus, as the case may be, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and/or (vi) the occurrence or existence of any pending
corporate development that, in the reasonable discretion of the Board
of Directors of the Company, makes it appropriate to suspend the
availability of the Registration Statement and the related Prospectus.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the same shall be in writing
and signed by the Company and the Holders of a majority of the then
outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to
a matter that relates exclusively to the rights of certain Holders and
that does not directly or indirectly affect the rights of other Holders
may be given by Holders of at least a majority of the Registrable
Securities to which such waiver or consent relates; provided, however,
that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the
immediately preceding sentence.
(e) NOTICES. Any notice or request hereunder may be given to
the Company or the Purchasers at the respective addresses set forth
below or as may hereafter be specified in a notice designated as a
change of address under this Section 6(e). Any notice or request
hereunder shall be given by registered or certified mail, return
receipt requested, hand delivery, overnight mail, Federal Express or
other national overnight next day carrier (collectively, "Courier") or
telecopy (confirmed by mail). Notices and requests shall be, in the
case of those by hand delivery, deemed to have been given when
delivered to any party to whom it is addressed, in the case of those by
mail or overnight mail, deemed to have been given three (3) business
days after the date when deposited in the mail or with the overnight
mail carrier, in the case of a Courier, the next business day following
timely delivery of the package with the Courier, and, in the case of a
telecopy, when confirmed. The address for such notices and
communications shall be as follows:
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IF TO THE COMPANY: REIT Americas, Inc.
0000 X. Xxxx Xxxx, Xxxxx 000,
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000 ) 000-0000
WITH A COPY TO:
Blank Rome LLP
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
IF TO A PURCHASER: To the address set forth
under such Purchaser
name on the signature
pages hereto.
IF TO ANY OTHER PERSON WHO IS
THEN THE REGISTERED HOLDER: To the address of such Holder
as it appears in the stock
transfer books of the Company
or such other address as may be designated in writing hereafter in accordance
with this Section 6 (e) by such Person.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of
each of the parties and shall inure to the benefit of each Holder.
Except as it relates to assignments to affiliates of the Company, the
Company may not assign its rights or obligations hereunder without the
prior written consent of each Holder. Each Holder may assign their
respective rights hereunder in the manner and to the Persons as
permitted under the Warrants and the Memorandum with the prior written
consent of the Company, which consent shall not be unreasonably
withheld. No person shall have the rights of the Holder hereunder
unless they have executed a joinder to the Agreement in a form
reasonably acceptable to the Company.
(g) EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of 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 Agreement. In the event that any signature
is delivered by facsimile transmission, such signature shall create a
valid binding obligation of the party executing (or on whose behalf
such signature is executed) the same with the same force and effect as
if such facsimile signature were the original thereof.
(h) GOVERNING LAW. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be
governed by
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and construed and enforced in accordance with the internal laws of the
State of Florida, without regard to the principles of conflicts of law
thereof. Each party agrees that all Proceedings concerning the
interpretations, enforcement and defense of the transactions
contemplated by this Agreement shall be commenced exclusively in the
state and federal courts sitting in Florida. Each party hereto hereby
irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in Florida, for the adjudication of any dispute
hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives,
and agrees not to assert in any Proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such
Proceeding is improper. Each party hereto hereby irrevocably waives
personal service of process and consents to process being served in any
such Proceeding by mailing a copy thereof via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at
the address in effect for notices to it under this Agreement and agrees
that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by
law. Each party hereto hereby irrevocably waives, to the fullest extent
permitted by applicable law, any and all right to trial by jury in any
legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby. If either party shall commence a
Proceeding to enforce any provisions of this Agreement, then the
prevailing party in such Proceeding shall be reimbursed by the other
party for its reasonable attorneys fees and other costs and expenses
incurred with the investigation, preparation and prosecution of such
Proceeding.
(i) CUMULATIVE REMEDIES. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(j) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set
forth herein shall remain in full force and effect and shall in no way
be affected, impaired or invalidated, and the parties hereto shall use
their reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be hereafter
declared invalid, illegal, void or unenforceable.
(k) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
REIT Americas, Inc. PURCHASERS:
By: By: /S/ XXX XXXXXXX, XX.
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Address:
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EXHIBIT A
[_______________ __, 2005]
Re: REIT AMERICAS, INC. REGISTRATION STATEMENT ON FORM [S-1]
------------------------------------------------------------
Ladies and Gentlemen:
As counsel to REIT Americas, Inc., a Maryland corporation (the
"Company"), we have been requested to render our opinion to you in connection
with the resale by the individuals or entities listed on Schedule A attached
hereto (the "Selling Stockholders"), of an aggregate of [AMOUNT]shares (the
"Shares") of the Company's Common Stock.
A Registration Statement on Form [S-1] under the Securities Act of
1933, as amended (the "Act"), with respect to the resale of the Shares was
declared effective by the Securities and Exchange Commission on [DATE]. Enclosed
is the Prospectus dated [DATE]. We understand that the Shares are to be offered
and sold in the manner described in the Prospectus.
Based upon the foregoing, upon request by the Selling Stockholders at
any time while the registration statement remains effective, it is our opinion
that the Shares have been registered for resale under the Act and new
certificates evidencing the Shares upon their transfer or re-registration by the
Selling Stockholders may be issued without restrictive legend. We will advise
you if the registration statement is not available or effective at any point in
the future.
Very truly yours,
[COMPANY COUNSEL]
SCHEDULE A
Shares
SELLING STOCKHOLDER BEING OFFERED
