REGISTRATION RIGHTS AGREEMENT
Exhibit
10.66
This
Registration Rights Agreement (the “Agreement”) is made and entered into as of
March 10, 2008 by and among Modtech Holdings, Inc., a Delaware corporation
(the
“Company”), and the “Buyers” named in that certain Subscription Agreement by and
among the Company and the Buyers, dated the date hereof (the “Subscription
Agreement”). Capitalized terms used herein have the respective meanings ascribed
thereto in the Subscription Agreement unless otherwise defined
herein.
The
parties hereby agree as follows:
1. Certain
Definitions.
As
used
in this Agreement, the following terms shall have the following
meanings:
“Buyers”
shall
mean the Buyers identified in the Subscription Agreement and any Affiliate
or
permitted transferee of any Buyer who is a subsequent holder of any Registrable
Securities.
“Common
Stock”
shall
mean the Company’s common stock, par value $0.01 per share, and any securities
into which such shares may hereinafter be reclassified.
“Insider”
means
a
Person who is either an officer or a director of the Company or any Subsidiary
of the Company.
“Insider
Shares”
means
the Shares purchased by any Insider.
“Prospectus”
shall
mean (i) the prospectus included in any Registration Statement, as amended
or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and supplements to the
prospectus, including post-effective amendments and all material incorporated
by
reference in such prospectus, and (ii) any “free writing prospectus” as defined
in Rule 405 under the 1933 Act.
“Register,”
“registered”
and
“registration”
refer
to a registration made by preparing and filing a Registration Statement or
similar document in compliance with the 1933 Act (as defined below), and the
declaration or ordering of effectiveness of such Registration Statement or
document.
“Registrable
Securities”
shall
mean (i) the Shares and (ii) any other securities issued or issuable with
respect to or in exchange for Registrable Securities; provided, that, a security
shall cease to be a Registrable Security upon (A) sale pursuant to a
Registration Statement or Rule 144 under the 1933 Act, or (B) such security
becoming eligible for sale without restriction by the Buyers pursuant to Rule
144.
“Registration
Statement”
shall
mean any registration statement of the Company filed under the 1933 Act that
covers the resale of any of the Registrable Securities pursuant to the
provisions of this Agreement, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits and all material
incorporated by reference in such Registration Statement.
“Required
Buyers”
means
the Buyers holding a majority of the Registrable Securities.
“SEC”
means
the U.S. Securities and Exchange Commission.
“Shares”
means
the shares of Common Stock to be issued upon conversion of the Series B
Preferred Stock and Series C Preferred Stock issued pursuant to the Subscription
Agreement.
“1933
Act”
means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
“1934
Act”
means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.
2. Registration.
(a) Registration
Statements.
(i) Promptly
following the Closing but no later than the earlier of (i) Five (5) Business
Days after the Company files its Annual Report on Form 10-K for the year ended
December 31, 2007 with the SEC or (ii) April 7, 2008 (the “Filing Deadline”),
the Company shall prepare and file with the SEC one Registration Statement
on
Form S-3 (or, if Form S-3 is not then available to the Company, on such form
of
registration statement as is then available to effect a registration for resale
of the Registrable Securities), covering the resale of the Shares (the
“Registrable Securities”). Subject to any SEC comments, such Registration
Statement shall include the plan of distribution attached hereto as Exhibit
A;
provided, however, that no Buyer shall be named as an “underwriter” in the
Registration Statement without the Buyer's ' prior written consent. Such
Registration Statement also shall cover, to the extent allowable under the
1933
Act and the rules promulgated thereunder (including Rule 416), such
indeterminate number of additional shares of Common Stock resulting from stock
splits, stock dividends or similar transactions with respect to the Registrable
Securities. Such Registration Statement shall not include any shares of Common
Stock or other securities for the account of any other holder without the prior
written consent of the Required Buyers; provided, however, that the Company
may
include in such Registration Statement the securities defined as "Registrable
Securities" under the Registration Rights Agreements dated February 29, 2008
between the Company and Laurus Master Fund, Ltd., Valens Offshore SPV I, Ltd.,
and Valens U.S. SPV I, LLC (the "Other Registrable Securities"). The
Registration Statement (and each amendment or supplement thereto, and each
request for acceleration of effectiveness thereof) shall be provided in
accordance with Section 3(c) to the Buyers prior to its filing or other
submission. If a Registration Statement covering the Registrable Securities
is
not filed with the SEC on or prior to the Filing Deadline, the Company will
make
pro rata payments to each Buyer (other than an
Insider),
as
liquidated damages and not as a penalty, in an amount equal to 1.5% of the
aggregate amount invested by such Buyer on the Closing Date for each 30-day
period or pro rata for any portion thereof following the Filing Deadline for
which no Registration Statement is filed with respect to the Registrable
Securities. Such payments shall constitute the Buyers' exclusive monetary remedy
for such events, but shall not affect the right of the Buyers to seek injunctive
relief. Such payments shall be made to each Buyer in cash within three Business
Days after the end of each calendar month.
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(b) Expenses.
The
Company will pay all expenses associated with each registration, including
filing and printing fees, the Company’s counsel and accounting fees and
expenses, costs associated with clearing the Registrable Securities for sale
under applicable state securities laws, listing fees, fees in connection with
the registration, but excluding discounts, commissions, fees of underwriters,
selling brokers, dealer managers or similar securities industry professionals
with respect to the Registrable Securities being sold.
(c) Effectiveness.
(i) The
Company shall use commercially reasonable efforts to have any Registration
Statement declared effective as soon as practicable. The Company shall notify
the Buyers by facsimile or e-mail as promptly as practicable, and in any event,
within twenty-four (24) hours, after any Registration Statement is declared
effective and shall simultaneously provide the Buyers with copies of any related
Prospectus to be used in connection with the sale or other disposition of the
securities covered thereby. If (A)(x) a Registration Statement covering the
Registrable Securities is not declared effective by the SEC prior to the earlier
of (i) five (5) Business Days after the SEC shall have informed the Company
that
no review of the Registration Statement will be made or that the SEC has no
further comments on the Registration Statement or (ii) the 60th
day
after the Filing Deadline or
(B)
after a Registration Statement has been declared effective by the SEC, sales
cannot be made pursuant to such Registration Statement for any reason (including
without limitation by reason of a stop order, or the Company’s failure to update
the Registration Statement), but excluding any Allowed Delay (as defined below)
or the inability of any Buyer to sell the Registrable Securities covered thereby
due to market conditions, then,
if
a Buyer cannot sell their Registrable
Securities without restriction pursuant to Rule 144 or otherwise, the
Company will make pro rata payments to each such Buyer (other
than an Insider)
as
liquidated damages and not as a penalty, in an amount equal to 1.5% of the
aggregate amount invested by such Buyer under the Subscription Agreement for
each 30-day period or pro rata for any portion thereof following the date by
which such Registration Statement should have been effective (the “Blackout
Period”). Such payments shall constitute the Buyers' exclusive monetary remedy
for such events, but shall not affect the right of the Buyers to seek injunctive
relief. The amounts payable as liquidated damages pursuant to this paragraph
shall be paid monthly within three (3) Business Days of the last day of each
month following the commencement of the Blackout Period until the termination
of
the Blackout Period. Such payments shall be made to each Buyer in cash.
(ii) For
not
more than twenty (20) consecutive days or for a total of not more than
forty-five (45) days in any twelve (12) month period, the Company may suspend
the use of any Prospectus included in any Registration Statement contemplated
by
this Section in the event that the Company determines in good faith that such
suspension is necessary to (A) delay the disclosure of material non-public
information concerning the Company, the disclosure of which at the time is
not,
in the good faith opinion of the Company, in the best interests of the Company
or (B) amend or supplement the affected Registration Statement or the related
Prospectus so that such Registration Statement or Prospectus shall not include
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in the case
of
the Prospectus in light of the circumstances under which they were made, not
misleading (an “Allowed Delay”); provided, that the Company shall promptly (a)
notify each Buyer
in
writing of the commencement of and the reasons for an Allowed Delay, but shall
not (without the prior written consent of a Buyer other than an Insider)
disclose to such Buyer any material non-public information giving rise to an
Allowed Delay, (b) advise the
Buyers
in
writing to cease all sales under the Registration Statement until the end of
the
Allowed Delay and (c) use commercially reasonable efforts to terminate an
Allowed Delay as promptly as practicable.
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(d) Rule
415; Cutbacks.
If at
any time the SEC takes the position that the offering of some or all of the
Registrable Securities or the Other Registrable Securities in a Registration
Statement is not eligible to be made on a delayed or continuous basis under
the
provisions of Rule 415 under the 1933 Act or requires any Buyer to be named
as
an “underwriter”, the Company shall use its commercially reasonable best efforts
to persuade the SEC that the offering contemplated by the Registration Statement
is a valid secondary offering and not an offering “by or on behalf of the
issuer” as defined in Rule 415 and that none of the Buyers is an “underwriter”.
The Buyers collectively (other than the Insiders) shall have the right to each
have a single counsel representing them participate in any meetings or
discussions with the SEC regarding the SEC’s position and to have their counsel
comment on any written submission made to the SEC with respect thereto. No
such
written submission shall be made to the SEC to which the Buyers' counsel
reasonably objects. In the event that, despite the Company’s commercially
reasonable efforts and compliance with the terms of this Section 2(e), the
SEC
refuses to alter its position, the Company shall (i) remove from the
Registration Statement such portion of the Registrable Securities (the “Cut Back
Shares”) and/or (ii) agree to such restrictions and limitations on the
registration and resale of the Registrable Securities as the SEC may require
to
assure the Company’s compliance with the requirements of Rule 415; provided,
however, that the Company shall not agree to name any Buyer as an “underwriter”
in such Registration Statement without the prior written consent of such Buyer
(collectively, the “SEC Restrictions”). Any cut-back imposed pursuant to this
Section 2(d) shall be allocated first,
to the
Insider Shares pro rata among the holders thereof, and second,
to the
remaining Registrable Securities held by Buyer's pro rata among them, unless
the
SEC Restrictions otherwise require or provide. No liquidated damages shall
accrue on or as to any Cut Back Shares. No cut-back will be imposed on the
Other
Registrable Securities.
3. Company
Obligations.
The
Company will use commercially reasonable efforts to effect the registration
of
the Registrable Securities in accordance with the terms hereof, and pursuant
thereto the Company will, as expeditiously as possible:
(a) use
commercially reasonable efforts to cause such Registration Statement to become
effective and to remain continuously effective for a period that will terminate
upon the earlier of (i) the date on which all Registrable Securities covered
by
such Registration Statement as amended from time to time, have been sold, and
(ii) the date on which all Registrable Securities covered by such Registration
Statement may be sold without restriction pursuant to Rule 144 (the
“Effectiveness Period”) and advise the Buyers writing when the Effectiveness
Period has expired. it being understood that the Effectiveness Period may expire
for some Buyers sooner than others;
(b) prepare
and file with the SEC such amendments and post-effective amendments to the
Registration Statement and the Prospectus as may be necessary to keep the
Registration Statement effective for the Effectiveness Period and to comply
with
the provisions of the 1933 Act and the 1934 Act with respect to the distribution
of all of the Registrable Securities covered thereby;
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(c) provide
copies to and permit a single counsel designated by the Buyers to review each
Registration Statement and all amendments and supplements thereto no fewer
than
three (3) Business Days prior to their filing with the SEC and not file any
document to which such counsel reasonably objects;
(d) furnish
to the Buyers (other than the Insiders) and the legal counsel of the Buyers,
if
any (i) promptly after the same is prepared and publicly distributed, filed
with
the SEC, or received by the Company (but not later than two (2) Business Days
after the filing date, receipt date or sending date, as the case may be) one
(1)
copy of any Registration Statement and any amendment thereto, each preliminary
prospectus and Prospectus and each amendment or supplement thereto, and each
letter written by or on behalf of the Company to the SEC or the staff of the
SEC, and each item of correspondence from the SEC or the staff of the SEC,
in
each case relating to such Registration Statement (other than any portion of
any
thereof which contains information for which the Company has sought confidential
treatment), and (ii) such number of copies of a Prospectus, including a
preliminary prospectus, and all amendments and supplements thereto and such
other documents as each Buyer may reasonably request in order to facilitate
the
disposition of the Registrable Securities owned by such Buyer that are covered
by the related Registration Statement;
(e) use
commercially reasonable efforts to (i) prevent the issuance of any stop order
or
other suspension of effectiveness and, (ii) if such order is issued, obtain
the
withdrawal of any such order at the earliest possible moment;
(f) prior
to
any public offering of Registrable Securities use commercially reasonable
efforts to register or qualify or cooperate with the Buyers and their respective
counsels, if any, in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky
laws
of such jurisdictions requested by the Buyers and do any and all other
commercially reasonable acts or things necessary or advisable to enable the
distribution in such jurisdictions of the Registrable Securities covered by
the
Registration Statement;
provided, however, that the Company shall not be required in connection
therewith or as a condition thereto to (i) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(f), (ii) subject itself to general taxation in any jurisdiction where
it would not otherwise be so subject but for this Section 3(f), or (iii) file
a
general consent to service of process in any such jurisdiction;
(g) use
commercially reasonable efforts to cause all Registrable Securities covered
by a
Registration Statement to be listed on each securities exchange, interdealer
quotation system or other market on which similar securities issued by the
Company are then listed;
(h) immediately
notify the Buyers, at any time prior to the end of the Effectiveness Period,
upon discovery that, or upon the happening of any event as a result of which,
the Prospectus includes an untrue statement of a material fact or omits to
state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing,
and promptly prepare, file with the SEC and furnish to such holder a supplement
to or an amendment of such Prospectus as may be necessary so that such
Prospectus shall not include an untrue statement of a material fact or omit
to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing;
and
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(i) otherwise
use commercially reasonable efforts to comply with all applicable rules and
regulations of the SEC under the 1933 Act and the 1934 Act, file any final
Prospectus, including any supplement or amendment thereof, with the SEC pursuant
to Rule 424 under the 1933 Act, and take such other actions as may be reasonably
necessary to facilitate the registration of the Registrable Securities
hereunder; and make available to its security holders, as soon as reasonably
practicable, but not later than the Availability Date (as defined below), an
earnings statement covering a period of at least twelve (12) months, beginning
after the effective date of each Registration Statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the 1933 Act,
including Rule 158 promulgated thereunder (for the purpose of this subsection
3(i), “Availability Date” means the 45th day following the end of the fourth
fiscal quarter that includes the effective date of such Registration Statement,
except that, if such fourth fiscal quarter is the last quarter of the Company’s
fiscal year, “Availability Date” means the 90th day after the end of such fourth
fiscal quarter).
(j) With
a
view to making available to the Buyers the benefits of Rule 144 (or its
successor rule) and any other rule or regulation of the SEC that may at any
time
permit the Buyers to sell shares of Common Stock to the public without
registration, the Company covenants and agrees to: (i) make and keep public
information available, as those terms are understood and defined in Rule 144,
until the earlier of (A) six months after such date as all of the Registrable
Securities may be sold without restriction by the holders thereof pursuant
to
Rule 144 or any other rule of similar effect or (B) such date as all of the
Registrable Securities shall have been resold; (ii) file with the SEC in a
timely manner all reports and other documents required of the Company under
the
1934 Act; and (iii) furnish to each Buyer upon request, as long as such Buyer
owns any Registrable Securities, (A) a written statement by the Company that
it
has complied with the reporting requirements of the 1934 Act, (B) a copy of
the
Company’s most recent Annual Report on Form 10-K or Quarterly Report on Form
10-Q, and (C) such other information as may be reasonably requested in order
to
avail such Buyer of any rule or regulation of the SEC that permits the selling
of any such Registrable Securities without registration.
5. Obligations
of the Buyers.
(a) Each
Buyer shall furnish in writing to the Company such information regarding itself,
the Registrable Securities held by it and the intended method of disposition
of
the Registrable Securities held by it, as shall be reasonably required to effect
the registration of such Registrable Securities and shall execute such documents
in connection with such registration as the Company may reasonably request.
At
least five (5) Business Days prior to the first anticipated filing date of
any
Registration Statement, the Company shall notify each Buyer of the information
the Company requires from them if they elect to have any of the Registrable
Securities included in the Registration Statement. Each Buyer shall provide
such
information to the Company at least two (2) Business Days prior to the first
anticipated filing date of such Registration Statement if they elect to have
any
of the Registrable Securities included in the Registration
Statement.
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(b) Each
Buyer, by their acceptance of the Registrable Securities agrees to cooperate
with the Company as reasonably requested by the Company in connection with
the
preparation and filing of a Registration Statement hereunder, unless they have
notified the Company in writing of their election to exclude all of their
Registrable Securities from such Registration Statement.
(c) Each
Buyer agrees that, upon receipt of any notice from the Company of either (i)
the
commencement of an Allowed Delay pursuant to Section 2(c)(ii) or (ii) the
happening of an event pursuant to Section 3(h) hereof, they will immediately
discontinue disposition of Registrable Securities pursuant to the Registration
Statement covering such Registrable Securities, until they are advised by the
Company that such dispositions may again be made.
6. Indemnification.
(a) Indemnification
by the Company.
The
Company will indemnify and hold harmless each Buyer and their respective
officers, directors, members, employees and agents, successors and assigns,
and
each other person, if any, who controls such Buyer within the meaning of the
1933 Act, against any losses, claims, damages or liabilities, joint or several,
to which they may become subject under the 1933 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 contained in any Registration Statement, any
preliminary Prospectus or final Prospectus, or any amendment or supplement
thereof; (ii) any blue sky application or other document executed by the Company
specifically for that purpose or based upon written information furnished by
the
Company filed in any state or other jurisdiction in order to qualify any or
all
of the Registrable Securities under the securities laws thereof (any such
application, document or information herein called a “Blue Sky Application”);
(iii) the omission or alleged omission to state in a Blue Sky Application a
material fact required to be stated therein or necessary to make the statements
therein not misleading; (iv) any violation by the Company or its agents of
any
rule or regulation promulgated under the 1933 Act applicable to the Company
or
its agents and relating to action or inaction required of the Company in
connection with such registration; or (v) any failure to register or qualify
the
Registrable Securities included in any such Registration Statement in any state
where the Company or its agents has affirmatively undertaken or agreed in
writing that the Company will undertake such registration or qualification
on
behalf of a Buyer and will reimburse such Buyer, and each of their respective
officers, directors or members and each of their controlling persons for any
legal or other expenses reasonably 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 an untrue
statement or alleged untrue statement or omission or alleged omission so made
in
conformity with information furnished by such Buyer or any such controlling
person in writing specifically for use in such Registration Statement or
Prospectus.
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(b) Indemnification
by the Buyers.
Each
Buyer agrees, severally but not jointly, to indemnify and hold harmless, to
the
fullest extent permitted by law, the Company, its directors, officers,
employees, stockholders and each person who controls the Company (within the
meaning of the 0000 Xxx) against any losses, claims, damages, liabilities and
expense (including reasonable attorney fees) resulting from (x) such Buyer’s
failure to deliver a Prospectus in connection with any sales under the
Registration Statement, if required, or (y) any untrue statement of a material
fact or any omission of a material fact required to be stated in the
Registration Statement or Prospectus or preliminary Prospectus or amendment
or
supplement thereto or necessary to make the statements therein not misleading,
to the extent, but only to the extent that such untrue statement or omission
is
contained (1) in any information furnished in writing by such Buyer to the
Company specifically for inclusion in such Registration Statement or Prospectus
or amendment or supplement thereto or (2) in an outdated or defective Prospectus
delivered by the Buyer in connection with any sales under the Registration
Statement after being notified by the Company that the Prospectus is outdated
or
defective, but only if and to the extent that following the receipt of the
amended or supplemented Prospectus the misstatement or omission giving rise
to
such loss, claim, damage or liability would have been corrected. In no event
shall the liability of a Buyer be greater in amount than the dollar amount
of
the proceeds (net of all expense paid by such Buyer in connection with any
claim
relating to this Section 6 and the amount of any damages such Buyer has
otherwise been required to pay by reason of such untrue statement or omission)
received by such Buyer upon the sale of the Registrable Securities included
in
the Registration Statement giving rise to such indemnification
obligation.
(c) Conduct
of Indemnification Proceedings.
Any
person entitled to indemnification hereunder shall (i) give prompt notice to
the
indemnifying party of any claim with respect to which it seeks indemnification
and (ii) permit such indemnifying party to assume the defense of such claim
with
counsel reasonably satisfactory to the indemnified party; provided
that any
person entitled to indemnification hereunder shall have the right to employ
separate counsel and to participate in the defense of such claim, but the fees
and expenses of such counsel shall be at the expense of such person unless
(a)
the indemnifying party has agreed to pay such fees or expenses, or (b) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such person or (c) in the reasonable
judgment of any such person, based upon written advice of its counsel, a
conflict of interest exists between such person and the indemnifying party
with
respect to such claims (in which case, if the person notifies the indemnifying
party in writing that such person elects to employ separate counsel at the
expense of the indemnifying party, the indemnifying party shall not have the
right to assume the defense of such claim on behalf of such person); and
provided,
further,
that
the failure of any indemnified party to give notice as provided herein shall
not
relieve the indemnifying party of its obligations hereunder, except to the
extent that such failure to give notice shall materially adversely affect the
indemnifying party in the defense of any such claim or litigation. It is
understood that the indemnifying party shall not, in connection with any
proceeding in the same jurisdiction, be liable for fees or expenses of more
than
one separate firm of attorneys at any time for all such indemnified parties.
No
indemnifying party will, except with the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect of such
claim or litigation.
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(d) Contribution.
If for
any reason the indemnification provided for in the preceding paragraphs (a),
(b)
and (c) is unavailable to an indemnified party or insufficient to hold it
harmless, other than as expressly specified therein, then the indemnifying
party
shall contribute to the amount paid or payable by the indemnified party as
a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnified party and the
indemnifying party, as well as any other relevant equitable considerations.
No
person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the 1933 Act shall be entitled to contribution from any person not
guilty of such fraudulent misrepresentation. In no event shall the contribution
obligation of a holder of Registrable Securities be greater in amount than
the
dollar amount of the proceeds (net of all expenses paid by such holder in
connection with any claim relating to this Section 6 and the amount of any
damages such holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission) received by it
upon
the sale of the Registrable Securities giving rise to such contribution
obligation.
7. Miscellaneous.
(a) Amendments
and Waivers.
This
Agreement may be amended only by a writing signed by the Company and the
Required Buyers. The Company may take any action herein prohibited, or omit
to
perform any act herein required to be performed by it, only if the Company
shall
have obtained the written consent to such amendment, action or omission to
act,
of the Required Buyers.
(b) Notices.
Unless
otherwise provided, any notice required or permitted under this Agreement shall
be given in writing and shall be deemed effectively given as hereinafter
described (i) if given by personal delivery, then such notice shall be deemed
given upon such delivery, (ii) if given by telex or telecopier, then such notice
shall be deemed given upon receipt of confirmation of complete transmittal,
(iii) if given by mail, then such notice shall be deemed given upon the earlier
of (A) receipt of such notice by the recipient or (B) three days after such
notice is deposited in first class mail, postage prepaid, and (iv) if given
by
an internationally recognized overnight air courier, then such notice shall
be
deemed given one business day after delivery to such carrier. All notices shall
be addressed to the party to be notified at the address as follows, or at such
other address as such party may designate by ten days’ advance written notice to
the other party:
If
to the
Company:
Modtech
Holdings, Inc.
0000
Xxxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxxx Xxxxxxx
If
to the
Buyers:
At
their
addresses reflected on the books and records of the Company.
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(c) Assignments
and Transfers by Buyers.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the Buyers, and their respective successors and assigns. A Buyer may transfer
or
assign, in whole or from time to time in part, to one or more persons its rights
hereunder in connection with the transfer of Registrable Securities by such
Buyer to such person, provided that such Buyer complies with all laws applicable
thereto and provides written notice of assignment to the Company promptly after
such assignment is effected.
(d) Assignments
and Transfers by the Company.
This
Agreement may not be assigned by the Company (whether by operation of law or
otherwise) without the prior written consent of the Required Buyers, provided,
however, that the Company may assign its rights and delegate its duties
hereunder to any surviving or successor corporation in connection with a merger
or consolidation of the Company with another corporation, or a sale, transfer
or
other disposition of all or substantially all of the Company’s assets to another
corporation, without the prior written consent of the Required Buyers, after
notice duly given by the Company to each Buyer.
(e) Benefits
of the Agreement.
The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective permitted successors and assigns of the parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
(f) Counterparts;
Faxes.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument. This Agreement may also be executed via facsimile, which shall
be
deemed an original.
(g) Titles
and Subtitles.
The
titles and subtitles used in this Agreement are used for convenience only and
are not to be considered in construing or interpreting this
Agreement.
(h) Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof but shall be interpreted as if it were written so as to be
enforceable to the maximum extent permitted by applicable law, and any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the parties hereby waive any provision of law
which
renders any provisions hereof prohibited or unenforceable in any
respect.
(i) Further
Assurances.
The
parties shall execute and deliver all such further instruments and documents
and
take all such other actions as may reasonably be required to carry out the
transactions contemplated hereby and to evidence the fulfillment of the
agreements herein contained.
-10-
(j) Entire
Agreement.
This
Agreement is intended by the parties as a final expression of their agreement
and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(k) Governing
Law; Consent to Jurisdiction; Waiver of Jury Trial.
This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of New York without regard to the choice of law principles
thereof. Each of the parties hereto irrevocably submits to the exclusive
jurisdiction of the courts of the State of New York located in New York County
and the United States District Court for the Southern District of New York
for
the purpose of any suit, action, proceeding or judgment relating to or arising
out of this Agreement and the transactions contemplated hereby. Service of
process in connection with any such suit, action or proceeding may be served
on
each party hereto anywhere in the world by the same methods as are specified
for
the giving of notices under this Agreement. Each of the parties hereto
irrevocably consents to the jurisdiction of any such court in any such suit,
action or proceeding and to the laying of venue in such court. Each party hereto
irrevocably waives any objection to the laying of venue of any such suit, action
or proceeding brought in such courts and irrevocably waives any claim that
any
such suit, action or proceeding brought in any such court has been brought
in an
inconvenient forum. EACH
OF THE PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY
LITIGATION WITH RESPECT TO THIS AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN
CONSULTED SPECIFICALLY AS TO THIS WAIVER.
-11-
IN
WITNESS WHEREOF, the parties have executed this Registration Rights Agreement
or
caused their duly authorized officers to execute this Agreement as of the date
first above written.
|
The
Company:
|
MODTECH
HOLDINGS, INC.
|
|
|
By:
|
/s/
Xxxxxx Xxxxxxx
|
|
| Name: Xxxxxx Xxxxxxx | ||
| Title: President and Chief Executive Officer | ||
-12-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
/s/
Xxxxxxx XxXxxxxxxx
|
|
|
Xxxxxxx
XxXxxxxxxx
|
-13-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
/s/
Xxxxxx Xxxxxxxx
|
|
|
Xxxxxx
Xxxxxxxx
|
-14-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
/s/
Xxxxxxx Xxxxxx
|
|
|
Xxxxxxx
Xxxxxx
|
-15-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Xxxxxx
Xxxxxxx
|
-16-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Xxxxxx
Xxxxxxx
|
|
|
/s/
Xxxxxxx Xxxxxx
|
|
|
Xxxxxxx
Xxxxxx
|
|
|
/s/
Xxxxxx Xxxxxx
|
|
|
Xxxxxx
Xxxxxx
|
|
|
/s/
Xxxxxxx Xxxxxxxxxx
|
|
|
Xxxxxxx
Xxxxxxxxxx
|
|
|
/s/
Xxxxxx Xxxxx
|
|
|
Xxxxxx
Xxxxx
|
|
|
/s/
Xxxxx Xxxxxxxxx
|
|
|
Xxxxx
Xxxxxxxxx
|
|
|
/s/
Xxxxxxx Von Hor
|
|
|
Xxxxxxx
Von Hor
|
|
|
/s/
Xxxxx Xxxxx
|
|
|
Xxxxx
Xxxxx
|
-17-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
/s/
Xxxxxx XxXxxxxx
|
|
|
Xxxxxx
XxXxxxxx
|
-18-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
/s/
Xxxxxxx Xxxxx
|
|
|
Xxxxxxx
Xxxxx
|
-19-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
R
& R Opportunity Fund
|
|
|
By:
/s/ Xxxx X. Xxxxx, III
|
|
|
Xxxx
X. Xxxxx, III
|
|
|
Authorized
Signatory
|
-20-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
Dolphin
Offshore Partners, L.P.
|
|
|
By:
/s/ Xxxxx X. Xxxxx
|
|
|
Xxxxx
X. Xxxxx
|
|
|
General
Partner
|
-21-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
/s/
Xxxxxx Xxxxxxx
|
|
|
Xxxxxx
Xxxxxxx
|
-22-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
/s/
Xxxxxxx X. Xxxxx
|
|
|
Xxxxxxx
X. Xxxxx
|
-23-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
/s/
Xxxxxxx Xxxxxxxxx
|
|
|
Xxxxxxx
Xxxxxxxxx
|
-24-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
GCA
Strategic Investment Fund Limited
|
|
|
By:
/s/ Xxxxx X. Xxxxxx
|
|
|
Xxxxx
X. Xxxxxx
|
|
|
Authorized
Signatory
|
-25-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
Maythorpe
Holdings Limited
|
|
|
By:
/s/ Xxxx Xxxxxx
|
|
|
Xxxx
Xxxxxx
|
|
|
Authorized
Signatory
|
-26-
IN
WITNESS WHEREOF,
the
parties have executed this Registration Rights Agreement or caused their duly
authorized officers to execute this Agreement as of the date first above
written.
|
BUYERS:
|
|
|
Xxxxx
Xxxx, III
|
-27-
Exhibit
A
Plan
of Distribution
The
selling stockholders, which as used herein includes donees, pledgees,
transferees or other successors-in-interest selling shares of common stock
or
interests in shares of common stock received after the date of this prospectus
from a selling stockholder as a gift, pledge, partnership distribution or other
transfer, may, from time to time, sell, transfer or otherwise dispose of any
or
all of their shares of common stock or interests in shares of common stock
on
any stock exchange, market or trading facility on which the shares are traded
or
in private transactions. These dispositions may be at fixed prices, at
prevailing market prices at the time of sale, at prices related to the
prevailing market price, at varying prices determined at the time of sale,
or at
negotiated prices.
The
selling stockholders may use any one or more of the following methods when
disposing of shares or interests therein:
-
ordinary brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
-
block
trades in which the broker-dealer will attempt to sell the shares as agent,
but
may position and resell a portion of the block as principal to facilitate the
transaction;
-
purchases by a broker-dealer as principal and resale by the broker-dealer for
its account;
-
an
exchange distribution in accordance with the rules of the applicable
exchange;
-
privately negotiated transactions;
-
short
sales effected after the date the registration statement of which this
Prospectus is a part is declared effective by the SEC;
-
through
the writing or settlement of options or other hedging transactions, whether
through an options exchange or otherwise;
-
broker-dealers may agree with the selling stockholders to sell a specified
number of such shares at a stipulated price per share; and
-
a
combination of any such methods of sale.
The
selling stockholders may, from time to time, pledge or grant a security interest
in some or all of the shares of common stock owned by them and, if they default
in the performance of their secured obligations, the pledgees or secured parties
may offer and sell the shares of common stock, from time to time, under this
prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or
other applicable provision of the Securities Act amending the list of selling
stockholders to include the pledgee, transferee or other successors in interest
as selling stockholders under this prospectus. The selling stockholders also
may
transfer the shares of common stock in other circumstances, in which case the
transferees, pledgees or other successors in interest will be the selling
beneficial owners for purposes of this prospectus.
In
connection with the sale of our common stock or interests therein, the selling
stockholders may enter into hedging transactions with broker-dealers or other
financial institutions, which may in turn engage in short sales of the common
stock in the course of hedging the positions they assume. The selling
stockholders may also sell shares of our common stock short and deliver these
securities to close out their short positions, or loan or pledge the common
stock to broker-dealers that in turn may sell these securities. The selling
stockholders may also enter into option or other transactions with
broker-dealers or other financial institutions or the creation of one or more
derivative securities which require the delivery to such broker-dealer or other
financial institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such
transaction).
The
aggregate proceeds to the selling stockholders from the sale of the common
stock
offered by them will be the purchase price of the common stock less discounts
or
commissions, if any. Each of the selling stockholders reserves the right to
accept and, together with their agents from time to time, to reject, in whole
or
in part, any proposed purchase of common stock to be made directly or through
agents. We will not receive any of the proceeds from this offering.
The
selling stockholders also may resell all or a portion of the shares in open
market transactions in reliance upon Rule 144 under the Securities Act of 1933,
provided that they meet the criteria and conform to the requirements of that
rule.
The
selling stockholders and any underwriters, broker-dealers or agents that
participate in the sale of the common stock or interests therein may be
"underwriters" within the meaning of Section 2(11) of the Securities Act. Any
discounts, commissions, concessions or profit they earn on any resale of the
shares may be underwriting discounts and commissions under the Securities Act.
Selling stockholders who are "underwriters" within the meaning of Section 2(11)
of the Securities Act will be subject to the prospectus delivery requirements
of
the Securities Act.
To
the
extent required, the shares of our common stock to be sold, the names of the
selling stockholders, the respective purchase prices and public offering prices,
the names of any agents, dealer or underwriter, any applicable commissions
or
discounts with respect to a particular offer will be set forth in an
accompanying prospectus supplement or, if appropriate, a post-effective
amendment to the registration statement that includes this
prospectus.
In
order
to comply with the securities laws of some states, if applicable, the common
stock may be sold in these jurisdictions only through registered or licensed
brokers or dealers. In addition, in some states the common stock may not be
sold
unless it has been registered or qualified for sale or an exemption from
registration or qualification requirements is available and is complied
with.
We
have
advised the selling stockholders that the anti-manipulation rules of Regulation
M under the Exchange Act may apply to sales of shares in the market and to
the
activities of the selling stockholders and their affiliates. In addition, to
the
extent applicable we will make copies of this prospectus (as it may be
supplemented or amended from time to time) available to the selling stockholders
for the purpose of satisfying the prospectus delivery requirements of the
Securities Act. The selling stockholders may indemnify any broker-dealer that
participates in transactions involving the sale of the shares against certain
liabilities, including liabilities arising under the Securities
Act.
We
have
agreed to indemnify the selling stockholders against liabilities, including
liabilities under the Securities Act and state securities laws, relating to
the
registration of the shares offered by this prospectus.
We
have
agreed with the selling stockholders to keep the registration statement of
which
this prospectus constitutes a part effective until the earlier of (1) such
time
as all of the shares covered by this prospectus have been disposed of pursuant
to and in accordance with the registration statement or (2) the date on which
the shares may be sold without restriction pursuant to Rule 144 of the
Securities Act.
