Exhibit 10.26
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is made as of May 28,
2004, by and between Standard Parking Corporation, a Delaware corporation (the
"COMPANY") and Steamboat Industries LLC, a limited liability company organized
under the laws of New York (the "INVESTOR").
RECITALS
WHEREAS, the Company and the Investor desire to enter into this Agreement,
which grants certain rights to register shares of the Company's common stock,
par value $.001 per share (the "COMMON STOCK") issuable upon conversion of the
Series C Preferred Stock (as defined below) held by such Investor and certain
rights to receive information pertaining to the Company.
WHEREAS, the Investor has entered into an Exchange Agreement (the "EXCHANGE
AGREEMENT") of even date herewith pursuant to which the Investor desires to
exchange 8.2561 shares of the Company's Series C Preferred Stock, par value
$.0001 per share (the "SERIES C PREFERRED STOCK") for [___] shares of the
Company's Common Stock, and the execution of this Agreement is a condition to
the Investor's obligations to exchange the Preferred Stock for the Common Stock
under the Exchange Agreement.
WHEREAS, the Company and the Investor desire that the transactions
contemplated by the Exchange Agreement be consummated.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration the receipt and
adequacy of which is hereby acknowledged, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. RESTRICTIONS ON TRANSFERABILITY; REGISTRATION RIGHTS.
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms have the following respective meanings:
"BOARD" means the board of directors of the Company.
"COMMISSION" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
or any similar successor federal statute, and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
"INITIATING HOLDERS" means any Holder or Holders who hold the
Registrable Securities then outstanding and who propose to register Registrable
Securities.
Registration Rights Agmt (SIL & SPC)
C-7
"HOLDER" means (i) each of the Investors and (ii) any person holding
Registrable Securities to whom the rights under this Agreement have been
transferred in accordance with Section 1.9 hereof.
"OTHER STOCKHOLDERS" means persons other than Holders who, by virtue
of agreements with the Company, are entitled to include their securities in
certain registrations hereunder.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in complying with Sections 1.3 and 1.4 hereof, including, without
limitation, all registration, qualification, listing and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, fees
and disbursements of one counsel for all of the Holders registering securities
in any given registration (not to exceed $25,000 per registration), blue sky
fees and expenses, and the expense of any special audits incident to or required
by any such registration (but excluding the compensation of regular employees of
the Company which shall be paid in any event by the Company), but shall not
include Selling Expenses.
"REGISTRABLE SECURITIES" shall mean (i) the shares of Common Stock
issued or issuable upon conversion of the Series C Preferred Stock and (ii) any
Common Stock of the Company issued as a dividend or other distribution with
respect to or in exchange for or in replacement of the shares referenced in
clause (i) above; PROVIDED, HOWEVER, that shares of Common Stock shall only be
treated as Registrable Securities if and so long as they have not been (A) sold
to or through a broker or dealer or underwriter in a public distribution or a
public securities transaction, (B) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Securities Act under
Section 4(1) thereof so that all transfer restrictions and restrictive legends
with respect thereto are removed upon the consummation of such sale, (C)
transferred in a transaction pursuant to which the registration rights are not
also assigned in accordance with Section 1.9 hereof or (D) with respect to each
Holder, when and after all such shares held by such Holder are eligible for sale
under Rule 144 of the Securities Act (or any similar or successor rule) during
any consecutive ninety (90) day period.
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear the legend set forth in Section 1.2 hereof.
"RULE 144" means Rule 144 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
"RULE 145" means Rule 145 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor rule that may be promulgated by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules
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and regulations promulgated thereunder or any similar federal statute and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and all fees and disbursements of counsel for any Holder, other than
the fees and disbursements of one counsel for all of the Holders registering
securities in any given registration as provided in the definition of
"Registration Expenses" above.
"SHARES" means the Company's Series C Preferred Stock.
"SUBSIDIARY" means any subsidiary now existing or hereafter created by
the Company pursuant to resolution of its board of directors.
1.2 RESTRICTIONS.
(a) Each Holder agrees not to make any disposition of all or
any portion of the Registrable Securities unless and until the transferee has
agreed in writing for the benefit of the Company to be bound by the terms of
this Agreement, and (i) there is then in effect a registration statement under
the Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement, or (ii) such Holder shall
have notified the Company of the proposed disposition and shall have furnished
the Company with a detailed statement of the circumstances surrounding the
proposed disposition, and, if reasonably requested by the Company, such Holder
shall have furnished the Company with an opinion of counsel, reasonably
satisfactory to the Company, that such disposition will not require registration
under the Securities Act; provided, however, that no opinion of counsel shall be
required with regard to dispositions pursuant to Rule 144(k) of the Securities
Act. Notwithstanding the foregoing, no such registration statement or opinion of
counsel shall be necessary for a transfer by a Holder which is (A) a partnership
to its partners or retired partners in accordance with partnership interests,
(B) a limited liability company to its members or former members in accordance
with their interest in the limited liability company, (C) a corporation to its
stockholders in accordance with their interests in the corporation, or (D) to
the Holder's family member or trust for the benefit of an individual Holder,
provided in all cases enumerated in clauses (A) - (D) that the transferee has
agreed in writing for the benefit of the Company to be bound by the terms of
this Agreement as if such transferee were an original Holder hereunder. Each
Holder consents to the Company making a notation on its records and giving
instructions to any transfer agent of the Restricted Securities in order to
implement the restrictions on transfer established in this Section 1.2.
(b) Each certificate representing the Registrable Securities
shall be stamped or otherwise imprinted with legends substantially in the
following forms (in addition to any legend required under applicable state
securities laws or the Company's charter documents):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED, OR ANY STATE
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SECURITIES LAWS. SUCH SHARES MAY NOT BE SOLD, TRANSFERRED, OR PLEDGED IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN OPINION
OF COUNSEL OR OTHER EVIDENCE SATISFACTORY TO THE COMPANY AND ITS COUNSEL
THAT SUCH REGISTRATION IS NOT REQUIRED."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE
STOCKHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE COMPANY."
(c) The Company shall promptly reissue unlegended
certificates at the request of any Holder thereof if the Holder shall have
obtained an opinion of counsel reasonably acceptable to the Company to the
effect that the securities proposed to be disposed of may lawfully be disposed
of without registration, qualification, or legend.
1.3 REGISTRATION.
(a) REQUEST FOR REGISTRATION. Subsequent to the expiration
of the lock-up period as provided for in the Lock-Up Agreement, dated May ___,
2004, between the Company, the Investor, Steamboat Industries N.V., Xxxx X.
Xxxxxx and Xxxxxxx Xxxxx as representative of the various underwriters, if the
Company shall receive from Initiating Holders a written request that the Company
effect a registration, the Company will:
(i) promptly deliver written notice of the proposed
registration to all other Holders and Other Stockholders; and
(ii) as soon as practicable, use best efforts to effect
such registration, qualification, or compliance (including, without limitation,
the execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws, and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request,
together with all or such portion of the Registrable Securities of any Holder or
Holders or securities of Other Stockholders joining in such request as are
specified in a written request delivered to the Company within twenty (20) days
after delivery of such written notice from the Company; PROVIDED, HOWEVER, that
the Company shall not be obligated to take any action to effect any such
registration, qualification, or compliance pursuant to this Section 1.3:
(A) During the period starting with the date sixty
(60) days prior to the Company's estimated date of filing of, and ending on a
date one hundred and eighty (180) days after the effective date of, a
registration initiated by the Company; provided that the Company is actively
employing in good faith all reasonable efforts to cause such registration
statement to become effective;
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(B) In any particular jurisdiction in which the
Company would be required to execute a general consent to service of process in
effecting such registration, qualification, or compliance unless the Company is
already subject to service in such jurisdiction and except as may be required by
the Securities Act;
(C) If in the good faith judgment of the Board,
such registration would be seriously detrimental to the Company and the Board
concludes, as a result, that it is essential to defer the filing of such
registration statement at such time, and the Company thereafter delivers to the
Initiating Holders a certificate, signed by the President or Chief Executive
Officer of the Company, stating that in the good faith judgment of the Board it
would be detrimental to the Company or its stockholders for a registration
statement to be filed in the near future, then the Company's obligation to
register, qualify, or comply under this Section 1.3 shall be deferred for a
period not to exceed the earlier of one hundred twenty (120) days after the
issuance of such certificate or the issuance of a subsequent certificate that
such information is no longer detrimental to the Company or its stockholders;
PROVIDED, HOWEVER, that the Company may not utilize this right more than once in
any twelve (12) month period; or
(D) If the Company has filed four registration
statements pursuant to Section 1.3 at the request of the Initiating Holders.
(b) UNDERWRITING. If the Initiating Holders intend to
distribute the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company as part of their request made
pursuant to Section 1.3(a), and the Company shall include such information in
the written notice referred to in Section 1.3(a)(i). In such event, the right of
any Holder or Other Stockholder to participate in the registration pursuant to
this Section 1.3 shall be conditioned upon such Holder's or Other Stockholder's
participation in such underwriting and the inclusion of such Holder's or Other
Stockholder's securities in the underwriting to the extent provided herein. A
Holder may elect to include in such underwriting all or part of the Registrable
Securities that such Holder holds.
(c) UNDERWRITING PROCEDURES. The Company shall (together
with all Holders or other persons proposing to distribute their securities
through such underwriting) enter into and perform its obligations under an
underwriting agreement in customary form with the managing underwriter(s)
selected for such underwriting by a majority in interest of the Initiating
Holders (which managing underwriter(s) shall be reasonably acceptable to the
Company). Notwithstanding any other provision of this Section 1.3, if the
managing underwriter(s) advises the Company in writing that marketing factors
require a limitation of the number of shares to be underwritten (including
Registrable Securities), the Company shall so advise all holders of the
Company's securities that would otherwise be entitled to be included in such
registration and the number of shares to be included in the underwriting or
registration shall be allocated in the following priority: first, among all
Holders of Registrable Securities having requested to be included in such
registration (pro rata among such Holders on the basis of the number of shares
of Registrable Securities held by all such Holders); second, among all Other
Stockholders having requested to be included in such registration (pro rata
among such Other Stockholders on the basis of the number of shares then held by
all such Other Stockholders); and third, any securities which the Company
desires to sell for its own account.
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The Company shall advise all holders of securities requested to be included in
such registration of the number of shares of securities of each such holder that
are entitled to be included in the registration. If any person who has requested
inclusion in such registration as provided above disapproves of the terms of the
underwriting, such person shall be excluded therefrom by written notice
delivered by the Company or the managing underwriter(s). Any Registrable
Securities and/or other securities so excluded or withdrawn shall also be
withdrawn from registration. The number of shares withdrawn shall be reallocated
in the manner set forth above. To facilitate the allocation of shares in
accordance with the above provisions, the Company or the managing underwriter(s)
may round the number of shares allocated to any holder to the nearest one
hundred (100) shares.
1.4 COMPANY REGISTRATION.
(a) NOTICE OF REGISTRATION. If the Company shall determine
to register any of its securities, either for its own account or the account of
a security holder or holders other than (A) a registration pursuant to Sections
1.3 hereof, (B) a registration relating solely to employee benefit plans, (C) a
registration relating solely to a Rule 145 transaction, or (D) a registration on
any registration form that does not permit secondary sales, the Company will:
(i) promptly deliver to all Holders and Other
Stockholders written notice thereof; and
(ii) use all commercially reasonable efforts to include
in such registration (and any related qualification under blue sky laws or other
compliance), except as set forth in Section 1.4(b) below, and in any
underwriting involved therein, all the Registrable Securities specified in a
written request or requests made by any Holder and securities specified in a
written request or requests by Other Stockholders and delivered to the Company
within ten (10) days after the written notice is delivered by the Company. Such
written request may include all or a portion of a Holder's Registrable
Securities.
(b) UNDERWRITING. If the registration of which the Company
gives notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders and Other Stockholders as a part of the
written notice given pursuant to Section 1.4(a)(i). In such event, the right of
any Holder or Other Stockholder to participate in the registration pursuant to
this Section 1.4 shall be conditioned upon such Holder's or Other Stockholder's
participation in such underwriting and the inclusion of such Holder's or Other
Stockholder's securities in the underwriting to the extent provided herein.
(c) UNDERWRITING PROCEDURES. The Company shall (together
with all Holders or other persons proposing to distribute their securities
through such underwriting) enter into and perform its obligations under an
underwriting agreement in customary form with the managing underwriter(s)
selected for such underwriting by the Company. Notwithstanding any other
provision of this Section 1.4, if the managing underwriter(s) advises the
Company in writing that marketing factors require a limitation of the number of
shares to be underwritten (including Registrable Securities), the Company shall
so advise all holders of the Company's securities that would otherwise be
entitled to be included in
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such registration and the number of shares to be included in the underwriting or
registration shall be allocated in the following priority:
(i) first, any securities which the Company desires to
sell for its own account;
(ii) second, among all Holders of Registrable
Securities having requested to be included in such registration (pro rata among
such Holders on the basis of the number of shares of Registrable Securities held
by all such Holders); and
(iii) third, among all Other Stockholders having
requested to be included in such registration (pro rata among such Other
Stockholders on the basis of the number of shares then held by all such Other
Stockholders).
(d) The Company shall advise all holders of securities
requested to be included in such registration of the number of shares of
securities of each such holder that are entitled to be included in the
registration. If any person who has requested inclusion in such registration as
provided above disapproves of the terms of the underwriting, such person shall
be excluded therefrom by written notice delivered by the Company or the managing
underwriter(s). Any Registrable Securities and/or other securities so excluded
or withdrawn shall also be withdrawn from registration. The number of shares
withdrawn shall be reallocated in the manner set forth above. To facilitate the
allocation of shares in accordance with the above provisions, the Company or the
managing underwriter(s) may round the number of shares allocated to any holder
to the nearest one hundred (100) shares.
(e) RIGHT TO TERMINATE REGISTRATION. The Company shall have
the right to terminate or withdraw any registration initiated by it under this
Section 1.4 prior to the effectiveness of such registration, whether or not any
Holder or Other Stockholder has elected to include securities in such
registration.
1.5 REGISTRATION PROCEDURES. In the case of each registration,
qualification, or compliance effected by the Company pursuant to this Section 1,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification, and compliance and as to the completion
thereof and, at its expense, the Company shall:
(a) Use best efforts to prepare and file with the Commission
a registration statement with respect to such securities and to cause such
registration statement to become and remain effective for at least ninety (90)
days or until the distribution described in the registration statement has been
completed, whichever occurs first; PROVIDED, HOWEVER, that (i) such 90-day
period shall be extended for a period of time equal to the period the Holder
refrains from selling any securities included in such registration at the
request of an underwriter of common stock or other securities of the Company;
(b) Furnish to the Holders participating in such
registration and to the underwriters of the securities being registered such
reasonable number of copies of the registration statement, preliminary
prospectus, final prospectus, and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of such
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securities;
(c) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statements as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
(d) Notify each seller of Registrable Securities covered by
such registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such seller, prepare and
furnish to such seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchaser of such shares, 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 or
incomplete in the light of the circumstances then existing;
(e) Use all commercially reasonable efforts to register and
qualify the securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be reasonably
requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions;
(f) Cause all such Registrable Securities to be listed on
each securities exchange on which similar securities issued by the Company are
then listed;
(g) Provide a transfer agent and registrar for all
Registrable Securities and a CUSIP number for all such Registrable Securities,
in each case not later than the effective date of such registration.
1.6 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them, and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration,
qualification, or compliance referred to in this Section 1, and the refusal to
furnish such information by any Holder or Holder shall relieve the Company of
its obligations in this Section 1 with respect to such Holder or Holders.
1.7 INDEMNIFICATION.
(a) To the extent permitted by law, the Company will
indemnify each Holder, each of its officers, directors, partners, legal counsel,
and accountants, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, with respect to which registration,
qualification, or compliance has been effected pursuant to this
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Section 1, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages, or liabilities (or actions, proceedings, or
settlements in respect thereof) arising out of or based on any untrue statement
(or alleged untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular, or other document (including any
related registration statement, notification, or the like), or any amendment or
supplement thereto, incident to any such registration, qualification, or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading,
or any violation by the Company of the Securities Act or any rule or regulation
promulgated under the Securities Act applicable to the Company in connection
with any such registration, qualification, or compliance, and the Company will
reimburse each such Holder, each of its officers, directors, partners, legal
counsel, and accountants, and each person controlling such Holder, each such
underwriter and each person who controls any such underwriter, for any legal and
any other expenses reasonably incurred in connection with investigating,
preparing, defending, or settling any such claim, loss, damage, liability, or
action, as such expenses are incurred, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability, or expense arises out of or is based on any untrue statement or
omission or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by such Holder,
controlling person, or underwriter and stated to be specifically for use
therein. It is agreed that the indemnity agreement contained in this Section 1.7
shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld).
(b) To the extent permitted by law, each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration, qualification, or compliance is being effected,
indemnify the Company, each of its directors, officers, partners, legal counsel,
and accountants, and each underwriter, if any, of the Company's securities
covered by such a registration statement, each person who controls the Company
or such underwriter within the meaning of Section 15 of the Securities Act, and
each other such Holder and Other Stockholder, each of their officers, directors,
and partners, and each person controlling such Holder or Other Stockholder
within the meaning of Section 15 of the Securities Act, against all claims,
losses, damages, and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering
circular, or other document, or any 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 such
Holders, Other Stockholders, directors, officers, partners, legal counsel, and
accountants, persons, underwriters, or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability, or action, as such expenses are
incurred, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular, or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder and stated to be specifically for use therein,
provided, however, that the obligations of such Holder hereunder
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shall not apply to amounts paid in settlement of any such claims, losses,
damages, or liabilities (or actions in respect thereof) if such settlement is
effected without the consent of such Holder (which consent shall not be
unreasonably withheld); and provided that that in no event shall any indemnity
under this Section 1.7 exceed the gross proceeds received by such Holder in such
offering.
(c) Each party entitled to indemnification under this
Section 1.7 (the "INDEMNIFIED PARTY") shall give notice to the party required to
provide indemnification (the "INDEMNIFYING PARTY") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, 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 under this Section 1 unless the failure to
give such notice is materially prejudicial to an Indemnifying Party's ability to
defend such action. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each Indemnified Party, consent to
entry of any judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation. Each Indemnified Party shall furnish such information regarding
itself or the claim in question as an Indemnifying Party may reasonably request
in writing and as shall be reasonably required in connection with the defense of
such claim and litigation resulting therefrom.
(d) If the indemnification provided for in this Section 1.7
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any claim, loss, damage, liability, or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such claim, loss, damage, liability, or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and the Indemnified party on the other in
connection with the statements or omissions that resulted in such claim, loss,
damage, liability, or expense, as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact related to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information, and opportunity to correct or prevent such
statement or omission. The Company and the Holders agree that it would not be
just and equitable if contribution pursuant to this Section 1.7 were based
solely upon the number of entities from whom contribution was requested or by
any other method of allocation which does not take account of the equitable
considerations referred to above. In no event shall any contribution by a Holder
under this Section 1.7 exceed the gross proceeds received by such Holder in such
offering.
(e) The amount paid or payable by an Indemnified Party as a
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result of the losses, claims, damages, and liabilities referred to above in this
Section 1.7 shall be deemed to include any legal or other expenses reasonably
incurred by such Indemnified Party in connection with investigating or defending
any such action or claim, subject to the provisions of Section 1.7(c). No person
guilty of fraudulent misrepresentation (within the meaning of the Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
(g) The obligations of the Company and Holders under this
Section 1.7 will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling person of such indemnified party and will survive the transfer of
Registrable Securities.
(h) The obligations of the Company and Holders under this
Section 1.7 shall survive the completion of any offering of Registrable
Securities in a registration statement.
1.8 EXPENSES OF REGISTRATION. All Registration Expenses incurred
in connection with any registration pursuant to Sections 1.3 and 1.4 shall be
borne by the Company. All Selling Expenses relating to securities registered on
behalf of the Holders shall be borne by the holders of the registered securities
included in such registration pro rata on the basis of the number of shares so
registered. The Company shall not, however, be required to pay for Registration
Expenses for any registration proceeding begun pursuant to Section 1.3, the
request of which has been subsequently withdrawn by the Initiating Holders
unless (a) the withdrawal is based upon material adverse information concerning
the Company of which the Initiating Holders were not aware at the time of such
request, or (b) the withdrawal is made during a deferral by the Company, or (c)
the Holders of a majority of Registrable Securities agree such withdrawn
registration shall count as a withdrawn registration under Section 1.3 above in
which event such agreement shall be binding on all Holders. If the Holders are
required to pay the Registration Expenses, such expenses shall be borne by the
holders of securities (including Registrable Securities) requesting such
registration pro rata on the basis of the number of shares for which
registration was requested. If the Company is required to pay the Registration
Expenses of a withdrawn offering pursuant to clause (a) or clause (b) above,
then the Holders shall not forfeit any of their rights pursuant to Section 1.3
to a demand registration.
1.9 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the
Company to register securities granted to any party hereto under Section 1 may
be assigned by a Holder only to a transferee or assignee of not less than one
hundred thousand (100,000) shares of Registrable Securities (as appropriately
adjusted for stock splits, combinations and the like), provided that the Company
is given written notice at the time of or within a reasonable time after said
assignment, stating the name and address of the transferee or assignee and
identifying the securities with respect to which such registration rights are
being assigned, and, provided further,
11
that the assignee of such rights assumes in writing the obligations of such
Holder under this Section 1. Notwithstanding the foregoing, no such minimum
share assignment requirement shall be necessary for an assignment by a Holder
which is (A) a partnership to its partners or retired partners in accordance
with partnership interests, (B) a limited liability company to its members or
former members in accordance with their interest in the limited liability
company, (C) a corporation to its stockholders in accordance with their
interests in the corporation, or (D) to the Holder's family member or trust for
the benefit of an individual Holder.
1.10 NO DELAY OF REGISTRATION BY HOLDER. No Holder shall have any
right to obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section.
1.11 TERMINATION OF RIGHTS. The rights of the Holders to cause
the Company to register securities under Section 1.3 shall terminate with
respect to all such Holders on the fifth (5th) year anniversary of the effective
date of the Company's IPO.
2. MISCELLANEOUS.
2.1 GOVERNING LAW. This Agreement shall be governed in all
respects by the laws of the State of New York without regard to choice of laws
or conflict of laws provisions thereof.
2.2 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties hereto.
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 by this Agreement.
2.3 ENTIRE AGREEMENT. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement among the parties with regard to the subjects hereof and thereof.
Subject to the provisions of Section 2.10 below, neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought, unless otherwise
provided.
2.4 NOTICES, ETC. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, return receipt requested, sent by facsimile
(with confirmation of receipt) or otherwise delivered by hand or by messenger,
addressed as follows:
(a) if to the Company:
Standard Parking, Inc.
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
12
Attention: Xxxxxx X. Xxxxx, Esq. (General Counsel)
Fax No.: (000) 000-0000
with a copy to:
White & Case
1155 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx Xxxxxxx, Esq.
Xxxxxxxx X Xxxx, Esq.
Fax No.: (000) 000-0000
(b) if to SIL:
Steamboat Industries LLC
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx (Manager)
Fax No.: (000) 000-0000
or in the case of any party, at such other address as such party may
notify the other parties hereto from time to time. Any notice, request or
communication hereunder shall be deemed to have been given when delivered by
hand or three (3) days after the date deposited in the mails, postage prepaid,
or in the case of telecopy notice, when sent, addressed as aforesaid. Any party
may, by notice given in accordance with the foregoing, change the person to
whom, or the address or telecopier number to which, notices are to be given
hereunder but any such notice shall be effective only when actually received by
the party to which it is addressed. Unless specifically stated otherwise, if
notice is provided by mail, it shall be deemed to be delivered upon proper
deposit in a mailbox, if notice is sent by facsimile, it shall be deemed to be
delivered when sent with confirmation of receipt and if notice is delivered by
hand or by messenger, it shall be deemed to be delivered upon actual delivery.
2.5 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power, or remedy accruing to the Investor upon any breach or default of
the Company under this Agreement shall impair any such right, power, or remedy
of such party, nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent, or approval of any kind or character on
the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing or as provided in this Agreement. All
remedies, either under this Agreement or by law or otherwise afforded to any
party, shall be cumulative and not alternative.
2.6 ATTORNEYS' FEES. If any action at law or in equity (including
arbitration) is necessary to enforce or interpret the terms of this Agreement,
the prevailing party
13
shall be entitled to reasonable attorney's fees, costs, and disbursements in
addition to any other relief to which such party may be entitled.
2.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and signatures may be delivered by facsimile, each of which may be
executed by less than all parties, each of which shall be enforceable against
the parties actually executing such counterparts, and all of which together
shall constitute one instrument. It is the express intent of the parties to
be bound by the exchange of signatures on this Agreement via telecopy.
2.8 SEVERABILITY. If any provision of this Agreement becomes or
is declared by a court of competent jurisdiction to be illegal, unenforceable,
or void, portions of such provision, or such provision in its entirety, to the
extent necessary, shall be severed from this Agreement and the balance of this
Agreement shall be enforceable in accordance with its terms.
2.9 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.
2.10 AMENDMENT AND WAIVER. Any provision of this Agreement may be
amended or waived (either generally or in a particular instance and either
retroactively or prospectively) with the written consent of the Company and any
Holder holding, in the aggregate, more than fifty percent (50%) of the
outstanding shares of the Registrable Securities; provided that (i) no such
amendment shall impose or increase any liability or obligation on a Holder
without the consent of such Holder, and (ii) no such amendment has a
disproportionately adverse effect on any Holder in relation to the other Holders
without the consent of such Holder. Any amendment or waiver effected in
accordance with this paragraph shall be binding upon each Holder and the
Company. In addition, the Company may waive performance of any obligation owing
to it, as to some or all of the Holders, or agree to accept alternatives to such
performance, without obtaining the consent of any Holder.
2.11 RIGHTS OF INVESTOR. The Investor and any Holder that becomes
a party hereto shall have the absolute right to exercise or refrain from
exercising any right or rights that such Investor or Holder may have by reason
of this Agreement, including, without limitation, the right to consent to the
waiver or modification of any obligation under this Agreement, and the Investor
or Holder shall not incur any liability to any other party or other holder of
any securities of the Company as a result of exercising or refraining from
exercising any such right or rights.
2.12 AGGREGATION OF STOCK. All shares of Common Stock of the
Company held or acquired by affiliated entities or persons shall be aggregated
for the purpose of determining the availability of any rights under this
Agreement.
[THIS SPACE LEFT BLANK INTENTIONALLY]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
STANDARD PARKING CORPORATION, a
Delaware corporation
By:
--------------------------------------
Name:
Title:
Address for Notice:
Standard Parking Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx, Esq.
STEAMBOAT INDUSTRIES LLC, a New
York limited liability company
By:
--------------------------------------
Name: Xxxx X. Xxxxxx
Title: Manager
Address for Notice:
Steamboat Industries LLC
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
