EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of March 23, 2005, by and between Vintage Wine Trust Inc., a Maryland
corporation (together with any successor entity thereto, the "Company"), and
Friedman, Billings, Xxxxxx & Co., Inc., a Delaware corporation (including its
successors and assigns, "FBR"), for the benefit of FBR and the Holders (as
defined below) and the direct and indirect transferees of FBR and each of the
Holders.
This Agreement is made pursuant to the Purchase/Placement Agreement (the
"Purchase/Placement Agreement"), dated as of March 23, 2005, by and among the
Company, Vintage Wine Trust LP and FBR. In order to induce the investors who are
purchasing the Common Stock in the Private Placement to purchase such Common
Stock and FBR to enter into the Purchase/Placement Agreement, the Company has
agreed to provide the rights provided for in this Agreement to FBR and the
Holders. The execution and delivery of this Agreement is a condition to the
closing of the transactions contemplated by the Purchase/Placement Agreement.
The parties hereto hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
Accredited Investor Shares: The shares of Common Stock initially sold by
the Company to "accredited investors" (within the meaning of Rule 501(a)
promulgated under the Securities Act) on March 23, 2005.
Additional Shares: Common Stock. or other securities of the Company issued
in respect of the Shares by reason of or in connection with any stock dividend,
stock distribution, stock split, purchase in any rights offering or in
connection with any exchange for or replacement of such shares or any
combination of shares, recapitalization, merger or consolidation, or any other
equity securities issued pursuant to any other pro rata distribution with
respect to the Common Stock.
Agreement: As defined in the preamble hereof.
Affiliate: As to any specified Person, (i) any Person directly or
indirectly owning, controlling or holding, with power to vote, ten percent or
more of the outstanding voting securities of such other Person, (ii) any Person
ten percent or more of whose outstanding voting securities are directly or
indirectly owned, controlled or held, with power to vote, by such other Person,
(iii) any Person directly or indirectly controlling, controlled by or under
common control with such other Person, (iv) any executive officer, director,
trustee, managing member or general partner of such Person and (v) any legal
entity for which such Person acts as an executive officer, director, trustee,
managing member or general partner. For purposes of this definition, "control"
(including the correlative meanings of the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly, or indirectly through one or more intermediaries or
relationships, of the power to direct or cause the direction of the management
and policies of such Person, whether by contract, through the ownership of
voting securities, partnership or member interests or other equity interests or
otherwise. An indirect
relationship shall include, without limitation, circumstances in which a
Person's spouse, children, parents, siblings or mother-, father-, sister- or
brother-in-law is or has been associated with a Person.
Business Day: With respect to any act to be performed hereunder, each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York, New York are authorized or obligated by
applicable law, regulation or executive order to close.
Closing Time: March 23, 2005.
Commission: The Securities and Exchange Commission.
Common Stock: The common stock, par value $0.01 per share, of the Company.
Company: As defined in the preamble hereof.
Controlling Person: As defined in Section 6(a) hereof.
End of Suspension Notice: As defined in Section 5(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission thereunder.
Executive Officers: The Chief Executive Officer, the Chief Financial
Officer and the Chief Operating Officer.
FBR: As defined in the preamble hereof.
Holder: Each record and beneficial owner of any Registrable Shares from
time to time, including FBR and its Affiliates, and each such owner's direct and
indirect transferees.
Indemnified Party: As defined in Section 6(c) hereof.
Indemnifying Party: As defined in Section 6(c) hereof
IPO Registration Statement: As defined in Section 2(b) hereof.
Liabilities: As defined in Section 6(a) hereof.
NASD: The National Association of Securities Dealers, Inc.
Offering Memorandum: The Offering Memorandum of the Company dated March 16,
2005 pursuant to which the Shares are offered and sold.
Person: An individual, partnership, limited liability company, corporation,
trust, unincorporated organization, government or agency or political
subdivision thereof, or any other legal entity.
Private Placement: The private placement of the Rule 144A Shares and the
Regulation S Shares to FBR, as initial purchaser, and the Accredited Investor
Shares on March 23, 2005 as more particularly described in the Offering
Memorandum.
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Proceeding: An action (including a class action), claim, suit, demand,
arbitration or other proceeding (including without limitation, an investigation
or partial proceeding, such as a deposition), whether commenced or, to the
knowledge of the Person subject thereto, threatened, by any Person.
Prospectus: The prospectus included in any Registration Statement,
including any preliminary prospectus, and all other amendments and supplements
to any such prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such prospectus.
Purchase/Placement Agreement: As defined in the preamble, as amended from
time to time in accordance with the terms thereof.
Purchaser Indemnitee: As defined in Section 6(a) hereof.
Registrable Shares: The Shares, upon original issuance thereof, and at all
times subsequent thereto, including upon the transfer thereof by the original
Holder or any subsequent Holder and any Additional Shares, until the earliest to
occur of (i) the date on which all such shares have been sold pursuant to an
effective Registration Statement, (ii) the date on which all such shares are
sold, transferred or otherwise disposed of pursuant to Rule 144, (iii) the date
on which, in the opinion of counsel to the Company, all such shares not held by
Affiliates of the Company are eligible for sale without registration under the
Securities Act pursuant to subparagraph (k) of Rule 144 and any applicable
legend restricting further transfer of such shares has been removed, or (iv) the
second anniversary of the initial effective date of the Shelf Registration
Statement or, in the case of any Additional Shares for which tacking under Rule
144A is not available and which are not included in the Shelf Registration
Statement, until the second anniversary of the issuance of the Additional Shares
(subject to extension pursuant to Section 5(c) hereof), if later.
Registration Default: As defined in Section 2(e) hereof.
Registration Expenses: Any and all fees and expenses incident to the
Company's performance of, or compliance with its obligations under this
Agreement, including, without limitation: (i) all Commission, securities
exchange, NASD or other registration, listing, inclusion and filing fees, (ii)
all fees and expenses incurred in connection with compliance with applicable
international, federal or state securities or blue sky laws (including, without
limitation, any registration, listing and filing fees and reasonable fees and
disbursements of counsel in connection with blue sky qualification of any of the
Registrable Shares and the preparation of a blue sky memorandum and compliance
with the rules of the NASD), (iii) all expenses of any Person in preparing or
assisting in preparing, word processing, duplicating, printing, delivering and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, agreements among underwriters,
securities sales agreements, certificates and any other documents relating to
the performance by the Company under, and compliance by the Company with, this
Agreement, (iv) all fees and expenses incurred in connection with the listing or
inclusion of any of the Registrable Shares on any securities exchange or
national quotation system pursuant to Section 4(n) of this Agreement or
otherwise, (v) the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company (including, without limitation,
the expenses of any special audit and "cold comfort" letters required by or
incident to such performance), (vi) reasonable fees and disbursements of one
Selling Holders' Counsel for each Registration Statement, (vii) the amounts set
forth in Section 4(m), and (viii) any fees and expenses customarily paid by
issuers in connection with issues and sales of securities (including the fees
and expenses of any experts retained by the Company in connection with any
Registration Statement) and the satisfaction of the Company's obligations set
forth herein; provided, however, that Registration Expenses shall exclude
brokers' or underwriters' discounts and commissions
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and any transfer taxes or transfer fees, if any, relating to the sale or
disposition of Registrable Shares by a Holder, and the fees and expenses of any
counsel to the Holders, except as provided for in clause (vi) above.
Registration Statement: Any Shelf Registration Statement, Subsequent Shelf
Registration Statement or IPO Registration Statement (to the extent it covers
the resale of any Registrable Shares) or other registration statement of the
Company that covers the resale of any Registrable Shares, including the
Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto
and all material incorporated by reference or deemed to be incorporated by
reference, if any, in such registration statement.
Regulation S: Regulation S (Rules 901-905) promulgated by the Commission
under the Securities Act, as such rules may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission as a replacement
thereto having substantially the same effect as such regulation.
Regulation S Shares: The shares of Common Stock initially sold by the
Company to FBR and resold by FBR pursuant to the Purchase/Placement Agreement to
"non-U.S. persons" (in accordance with Regulation S) in an "offshore
transaction" (in accordance with Regulation S).
Rule 144: Rule 144 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
Rule 144A: Rule 144A promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
Rule 144A Shares: The shares of Common Stock initially sold by the Company
to FBR and resold by FBR pursuant to the Purchase/Placement Agreement to
"qualified institutional buyers" (as such term is defined in Rule 144A) in
accordance with Rule 144A.
Rule 158: Rule 158 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
Rule 415: Rule 415 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
Rule 424: Rule 424 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
Rule 429: Rule 429 promulgated by the Commission pursuant to the Securities
Act, as such rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission as a replacement thereto having
substantially the same effect as such rule.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder.
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Selling Holders' Counsel: Counsel for the Holders that is selected by the
Holders holding a majority of the Registrable Shares included in any
Registration Statement, with such selection being effective by written consent
of Holders holding a majority of the Registrable Shares, whether record or
beneficial Holders.
Shares: The Rule 144A Shares, the Accredited Investor Shares and the
Regulation S Shares.
Shelf Registration Statement: As defined in Section 2(a) hereof.
Subsequent Shelf Registration Statement: As defined in Section 2(c) hereof.
Suspension Event: As defined in Section 5(b) hereof.
Suspension Notice: As defined in Section 5(b) hereof.
Underwritten Offering: A sale of securities of the Company to an
underwriter or underwriters for reoffering to the public.
2. REGISTRATION RIGHTS
(a) Mandatory Shelf Registration. As set forth in Section 4 hereof, the
Company agrees to file with the Commission as soon as reasonably practicable
following the date of this Agreement (but in no event later than the date that
is 240 days after the date of the Offering Memorandum) a shelf Registration
Statement on Form S-1l or such other form under the Securities Act then
available to the Company providing for the resale of the Registrable Shares
pursuant to Rule 415 from time to time by the Holders, including for the
avoidance of doubt, any Additional Shares that are issued prior to the
effectiveness of such Shelf Registration Statement (such registration statement,
including the Prospectus, amendments and supplements to such registration
statement or Prospectus, including pre- and post-effective amendments, all
exhibits thereto and all material incorporated by reference or deemed to be
incorporated by reference, if any, in such registration statement, the "Shelf
Registration Statement"). The Company shall use its commercially reasonable
efforts to cause such Shelf Registration Statement to be declared effective by
the Commission as soon as practicable following such filing and for this
purpose, for a period of one year from the date hereof or for so long as FBR is
the managing or co-lead underwriter of such initial public offering, the Company
shall be entitled to consider the advice of the managing or co-lead underwriter
or underwriters of an initial public offering of the Common Stock which is then
pending as to the effect that the effectiveness of the Shelf Registration
Statement could reasonably be expected to have on the initial public offering.
Any Shelf Registration Statement shall provide for the resale from time to time,
and pursuant to any method or combination of methods legally available
(including, without limitation, an Underwritten Offering, a direct sale to
purchasers, a sale through brokers or agents, or sale over the Internet) by the
Holders of any and all Registrable Shares.
(b) IPO Registration. If the Company proposes to file with the Commission a
registration statement on Form S-11 or such other form under the Securities Act
providing for the initial public offering of shares of Common Stock (such
registration statement, including the Prospectus, amendments and supplements to
such registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement,
the "IPO Registration Statement"), the Company will notify in writing each
Holder of the filing, within the 20 Business Days after the filing thereof, and
afford each Holder an opportunity by the time designated in the notice to
include in such IPO Registration Statement all or any part of the Registrable
Shares then held by such Holder. Each Holder desiring to include in any such IPO
Registration Statement all or part of the Registrable Shares then held by such
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Holder shall, within 15 Business Days after delivery of the above-described
written notice by the Company, so notify the Company in writing, and in such
notice shall inform the Company of the number of Registrable Shares such Holder
wishes to include in such IPO Registration Statement. Any election by any Holder
to include any Registrable Shares in the IPO Registration Statement will not
affect the inclusion of such Registrable Shares in the Shelf Registration
Statement or any Subsequent Shelf Registration Statement until such Registrable
Shares have been sold under the IPO Registration Statement; provided, however,
that at such time of sale, the Company shall have the right to remove from the
Shelf Registration Statement or any Subsequent Shelf Registration Statement the
Registrable Shares sold pursuant to the IPO Registration Statement.
(i) Right to Terminate IPO Registration. At any time, the Company
shall have the right to terminate or withdraw any IPO Registration
Statement referred to in this Section 2(b) whether or not any Holder has
elected to include Registrable Shares in such IPO Registration Statement;
provided, however, that the Company must provide each Holder that elected
to include any Registrable Shares in such IPO Registration Statement prompt
written notice of such termination. Furthermore, in the event the IPO
Registration Statement is not declared effective by the Commission within
150 Business Days following delivery by the Company of notice to the
Holders of their initial opportunity to include all or any part of the
Registrable Shares then held by such Holders in the IPO Registration
Statement, unless a road show for the Underwritten Offering pursuant to the
IPO Registration Statement is in progress at such time, the Company shall
promptly provide a new written notice to all Holders giving them another
opportunity to elect to include Registrable Shares in the pending IPO
Registration Statement. Each Holder desiring to include in any such IPO
Registration Statement all or part of the Registrable Shares held by such
Holder shall, within ten (10) business days after receipt of the
above-described written notice by the Company, so notify the Company in
writing, and in such notice shall inform the Company of the number of
Registrable Shares such Holder wishes to include in such IPO Registration
Statement.
(ii) Selection of Underwriter. Subject to external contractual
obligations the Company owes to FBR, the Company shall have the sole right
to select the managing or co-lead underwriters) for its initial public
offering, regardless of whether any Registrable Securities are included in
the IPO Registration' Statement or otherwise.
(iii) Shelf Registration not Impacted by IPO Registration Statement.
The Company's obligation to file the Shelf Registration Statement or any
Subsequent Shelf Registration Statement pursuant to Sections 2(a) and 2(c)
hereof and keep effective such Shelf Registration Statement or any
subsequent Shelf Registration Statement shall not be affected by the filing
or effectiveness of the IPO Registration Statement, except to the extent
Registrable Shares are sold pursuant to the IPO Registration Statement, in
which case, the Company shall have the right to remove from the Shelf
Registration Statement or any Subsequent Shelf Registration Statement, as
applicable, the Registrable Shares sold pursuant to the IPO Registration
Statement; provided, however, if the Company files an IPO Registration
Statement before or after the Company files a Shelf Registration Statement
or Subsequent Shelf Registration Statement but before the effectiveness of
the Shelf Registration Statement or such Subsequent Shelf Registration
Statement, the Company shall have the right to defer causing the Commission
to declare the Shelf Registration Statement or such Subsequent Shelf
Registration Statement effective until 75 days after the closing date of
the underwritten offering pursuant to the IPO Registration Statement;
provided further that the Company shall have the right, for a period of one
year from the date hereof or such longer time as FBR may be acting as the
managing or co-lead underwriter of such initial public offering, to further
defer causing the Commission to declare the Shelf Registration Statement or
such Subsequent Shelf Registration Statement effective if the Company is
advised by the managing or
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co-lead underwriter or underwriters of an initial public offering of the
Common Stock which is then pending that such effectiveness could materially
adversely affect such initial public offering.
(iv) Underwriting. The Company shall give written notice to the
Holders who elected to be included in the IPO Registration Statement of the
identity of the managing or co-lead underwriters for the Underwritten.
Offering proposed under the IPO Registration Statement. The right of any
such Holder's Registrable Shares to be included in any IPO Registration
Statement pursuant to this Section 2(b) shall be conditioned upon such
Holder's participation in such Underwritten Offering and the inclusion of
such Holder's Registrable Shares in the Underwritten Offering to the extent
provided herein. All Holders proposing to distribute their Registrable
Shares through such Underwritten Offering shall enter into an underwriting
agreement in customary form with the managing or co-lead underwriters
selected by the Company for such underwriting and complete and execute any
questionnaires, powers of attorney, indemnities, securities escrow
agreements, custody agreements, lock-up agreements and other documents
reasonably required under the terms of such underwriting, and furnish to
the Company such information in writing as the Company may reasonably
request for inclusion in the IPO Registration Statement; provided, however,
that no Holder shall be required to make any representations or warranties
to or agreements (including indemnities) with the Company or the
underwriters other than representations, warranties or agreements
(including indemnities) as are customary and reasonably requested by the
underwriters with the understanding that the foregoing shall be several,
not joint and several, and no such agreement (including indemnities) shall
require any Holder to be liable for an amount in excess of the gross
proceeds received by such Holder through such Underwritten Offering.
Notwithstanding any other provision of this Agreement, if at any time the
managing or co-lead underwriters and the Company mutually agree and
determine in good faith that marketing factors require a limitation on the
number of shares to be included, then the managing or co-lead underwriters
may exclude shares (including Registrable Shares) from the IPO Registration
Statement and the Underwritten Offering, and any shares of Common Stock
included in the IPO Registration Statement and the Underwritten Offering
shall be allocated, first, to the Company, and second, to each of the
Holders requesting inclusion of their Registrable Shares in the IPO
Registration Statement (on a pro rata basis based on the total number of
Registrable Shares then requested for inclusion by each such Holder);
provided, however, that the number of Registrable Shares to be included in
the IPO Registration Statement shall not be reduced unless all other
securities of the Company and its subsidiaries held by (i) the Company's
directors, officers, other employees and consultants; and (ii) other
holders of the Company's and its subsidiaries' capital stock with
registration rights that are inferior (with respect to such reduction) to
the registration rights of the Holders set forth herein, are first entirely
excluded from the underwriting and registration.
If any Holder disapproves of the terms of any Underwritten Offering
that is undertaken in compliance with the terms hereof, such Holder may
elect to withdraw therefrom by providing written notice to the Company and
the managing or co-lead underwriters, delivered not later than 10 Business
Days prior to the effective date of the IPO Registration Statement;
provided, however, no holder may elect to withdraw if, in the opinion of
the Company, after advise of counsel, such withdrawal would cause the
Company to recirculate a preliminary prospectus; provided further, however,
in the event the IPO Registration Statement is not declared effective by
the Commission within 150 Business Days following delivery by the Company
of notice to the Holders of their initial opportunity to include all or any
part of the Registrable Shares then held by such Holders in the IPO
Registration Statement, unless a road show for the Underwritten Offering
pursuant to the IPO Registration Statement is in progress at such time, the
Company shall promptly provide written notice to all Holders who have
elected to be included in the IPO Registration Statement giving them
another opportunity to elect to withdraw from the pending
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IPO Registration Statement, and each Holder desiring to withdraw from such
IPO Registration Statement shall, within 10 Business Days after receipt of
the above-described written notice by the Company, provide notice to the
Company and the managing or co-lead underwriters of such election. Any
Registrable Shares excluded or withdrawn from such Underwritten Offering
shall be excluded and withdrawn from the IPO Registration Statement.
(v) Hold-back Agreement. By electing to include Registrable Shares in
the IPO Registration Statement, if any, the Holder shall be deemed to have
agreed not to effect any sale or distribution of securities of the Company
of the same or similar class or classes of the securities included in the
IPO Registration Statement or any securities convertible into or
exchangeable or exercisable for such securities, including a sale pursuant
to Rule 144 or Rule 144A under the Securities Act, during such periods as
may be requested by the managing or co-lead underwriter (but in no event
for a period longer than 60 days prior to and 180 days following the
effective date of the IPO Registration Statement), if an Underwritten
Offering, or by the Company in any other registration; provided that each
of the Executive Officers and directors of the Company that hold shares of
Common Stock or securities convertible into or exchangeable or exercisable
for shares of Common Stock are subject to restrictions at least as
burdensome as those applicable to the Holders for not less than the entire
time period required of the Holders hereunder.
(c) Subsequent Shelf Registration for Additional Shares Issued after
Effectiveness of the Mandatory Shelf Registration Statement. If any Additional
Shares are issued or distributed to Holders after the effectiveness of the Shelf
Registration Statement, or such Additional Shares were otherwise not included in
a prior Shelf Registration Statement, then the Company shall as soon as
practicable, but in no event later than 90 days after the issuance of such
Additional Shares, file an additional Shelf Registration Statement on Form S-11
or such other form under the Securities Act then available to the Company
providing for the resale of the Additional Shares pursuant to Rule 415 from time
to time by the Holders (such registration statement, including the Prospectus,
amendments and supplements to such registration statement or Prospectus,
including pre- and post-effective amendments, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference, if
any, in such registration statement, a "Subsequent Shelf Registration
Statement") in the same manner, and subject to the same provisions in this
Agreement as the Shelf Registration Statement, provided that the provisions of
Section 2(e) shall be modified so that it shall apply to a Subsequent Shelf
Registration Statement within 90 days after the existence of any Additional
Shares, if later, rather than within 240 days after the date of the Offering
Memorandum.
(d) Expenses. The Company shall pay all Registration Expenses in connection
with the registration of the Registrable Shares pursuant to this Agreement. Each
Holder participating in a registration pursuant to this Section 2 shall bear
such Holder's proportionate share (based on the total number of Registrable
Shares sold in such registration) of all discounts and commissions payable to
underwriters or brokers and all transfer taxes and transfer fees in connection
with a registration of Registrable Shares pursuant to this Agreement and any
other expense of the Holders not specifically allocated to the Company pursuant
to this Agreement relating to the sale or disposition of such Holder's
Registrable Shares pursuant to any Registration Statement.
(e) Executive Bonuses and Equity Awards. If (i) the Company does not file a
Shelf Registration Statement registering the resale of the Shares within 240
days after the date of the Offering Memorandum or, if later, 90 days after the
existence of any Additional Shares, other than as a result of the Commission
being unable to accept such filings; (ii) the Company fails to use commercially
reasonable efforts to have the Commission declare such Shelf Registration
Statement effective; or (iii) the Company fails to comply with its obligations
set forth in Section 2 and 4 to file, when and as required, any documents or
other materials necessary to effect, or to otherwise maintain the effectiveness
of any, Shelf
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Registration Statement (each a "Registration Default"), then, for each day the
Registration Default continues, each Executive Officer of the Company shall
forfeit (A) 2.0% of any cash bonus to which he or she became or becomes entitled
or earned or earns as a result of performance during the 2005 and 2006 fiscal
years (whether payable during or after the 2005 or the 2006 fiscal year, as
applicable), whether under an employment agreement with the Company, a bonus
plan or any other bonus or compensation arrangement or benefit plan, including
any bonus compensation for which payment would otherwise be deferred until after
2005 or 2006 and (B) 2.0% of all awards granted to the Executive Officer by the
Company pursuant to the Company's 2005 Equity Incentive Plan or other equity
incentive plan, up to 100% of any such bonuses or awards, and no bonuses,
compensation, awards, equity compensation or other amounts shall be payable or
granted in lieu of or to make such Executive Officer whole for any such
forfeited bonuses or awards.
3. RULES 144 AND 144A REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission that may permit the sale of the Registrable Shares
to the public without registration, until such date as no Holder owns any
Registrable Shares, the Company agrees to:
(a) use its commercially reasonable efforts to make and keep public
information available, as those terms are understood and defined in Rule 144(c)
under the Securities Act, at all times after the effective date of the first
registration statement under the Securities Act filed by the Company for an
offering of its securities to the general public;
(b) use its commercially reasonable efforts to timely file with the
Commission all reports and other documents required to be filed by the Company
under the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements);
(c) if the Company is not required to file reports and other documents
under the Securities Act and the Exchange Act, make available other information
as required by, and so long as necessary to permit sales of Registrable Shares
pursuant to, Rule 144 and Rule 144A; and
(d) to furnish to any Holder promptly upon written request (i) a written
statement by the Company as to its compliance with the reporting requirements of
Rule 144 (at any time after 90 days after the effective date of the first
registration statement under the Securities Act filed by the Company for an
offering of its securities to the general public), and of the Securities Act and
the Exchange Act (at any time after it has become subject to the reporting
requirements of the Exchange Act), (ii) a copy of the most recent annual and
quarterly report(s) of the Company, and (iii) such other reports, documents or
shareholder communications of the Company, and take such further actions
consistent with this Section 3, as a Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing a Holder to sell any
such Registrable Shares without registration.
4. REGISTRATION PROCEDURES
In connection with the obligations of the Company with respect to any
registration pursuant to this Agreement, the Company shall use its commercially
reasonable efforts to effect or cause to be effected the registration of the
Registrable Shares under the Securities Act to permit the public resale of such
Registrable Shares by the Holder or Holders in accordance with the Holders'
intended method or methods of resale and distribution, and the Company (and,
with respect to Sections 4(k) and 4(l) hereof, the Partnership) shall, without
limitation:
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(a) notify FBR and Selling Holders' Counsel, if any, in writing, at least
15 Business Days prior to filing a Registration Statement (other than an IPO
Registration Statement), of its intention to file a Registration Statement with
the Commission and, at least 10 Business Days prior to filing, provide a copy of
the Registration Statement to FBR, its counsel and Selling Holders' Counsel, if
any, for review and comment, which comments shall be provided within 5 Business
Days of delivering such Registration Statement; prepare and file with the
Commission, as specified in this Agreement, a Registration Statement(s), which
Registration Statement(s) (x) shall comply in all material respects as to form
with the requirements of the applicable form and include all financial
statements required by the Commission to be filed therewith and (y) shall be
reasonably acceptable to FBR and the Selling Holders' Counsel, if any; notify
FBR and Selling Holders' Counsel, if any, in writing, at least 5 Business Days
prior to filing of any amendment or supplement to such Registration Statement
and, at least 3 Business Days prior to filing, provide a copy of such amendment
or supplement to FBR, its counsel and Selling Holders' Counsel, if any, for
review and comment; promptly following receipt from the Commission, provide to
FBR, its counsel and Selling Holders' Counsel, if any, copies of any comments
made by the staff of the Commission relating to such Registration Statement
(whether pre-effective or post-effective) and of the Company's responses thereto
for review and comment; and use its commercially reasonable efforts to cause
such Registration Statement to become effective as soon as practicable after
filing and to remain effective, subject to Section 5 hereof, until the earlier
of (i) such time as all Registrable Shares covered thereby have been sold in
accordance with the intended methods of distribution of such Registrable Shares,
and (ii) there are no Registrable Shares outstanding; provided, however, that
the Company shall not be required to cause any IPO Registration Statement to
become effective; provided, further, that if the Company has an effective Shelf
Registration Statement or Subsequent Shelf Registration Statement on Form S-11
under the Securities Act and becomes eligible to use Form S-3 or such other
short-form registration statement form under the Securities Act, the Company
may, upon 30 Business Days prior written notice to FBR and all Holders, register
any Registrable Shares registered but not yet distributed under the effective
Shelf Registration Statement or Subsequent Shelf Registration Statement on such
a short-form Shelf Registration Statement and, once the short-form Shelf
Registration Statement is declared effective, de-register such shares under the
previous Shelf Registration Statement or any Subsequent Shelf Registration
Statement or transfer the filing fees from the previous Shelf Registration
Statement (such transfer pursuant to Rule 429), if applicable) unless the
Holders holding at least a majority of the shares registered by the Holders
under the initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement notify the Company within 10 Business Days of receipt of
the Company notice that such a registration under a new Registration Statement
and de-registration of the initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement would materially interfere with such
Holders' distribution of Registrable Shares already in progress, in which case
the Company shall delay the effectiveness of the short-form Shelf Registration
Statement and de-registration for a period of not less than 20 Business Days
from the date that the Company receives the notice from such Holders requesting
a delay;
(b) subject to Section 4(i) hereof, (i) prepare and file with the
Commission such amendments and post-effective amendments to each such
Registration Statement as maybe necessary to keep such Registration Statement
effective for the period described in Section 4(a) hereof; (ii) cause each
Prospectus contained therein to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 or any
similar rule that may be adopted under the Securities Act; and (iii) comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by each Registration Statement during the applicable period
in accordance with the intended method or methods of distribution;
(c) furnish to FBR and the Holders, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as FBR or such Holder may reasonably
request, in order to facilitate the public sale or other
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disposition of the Registrable Shares; the Company consents, subject to Section
5, to the lawful use of such Prospectus, including each preliminary Prospectus,
by FBR and the Holders, if any, in connection with the offering and sale of the
Registrable Shares covered by any such Prospectus;
(d) use its commercially reasonable efforts to register or qualify, or
obtain exemption from registration or qualification for, all Registrable Shares
by the time the applicable Registration Statement is declared effective by the
Commission under all applicable state securities or "blue sky" laws of such
United States jurisdictions as FBR or any Holder with Registrable Shares covered
by a Registration Statement shall reasonably request in writing, keep each such
registration or qualification or exemption effective during the period such
Registration Statement is required to be kept effective pursuant to Section 4(a)
and do any and all other acts and things that may be reasonably necessary or
advisable to enable such Holder to consummate the disposition in each such
jurisdiction of such Registrable Shares covered by the Registration Statement;
provided, however, that the Company shall not be required to take any action to
comply with this Section 4(d) if it would require the Company or any of its
subsidiaries to (i) qualify generally to do business in any jurisdiction or to
register as a broker or dealer in such jurisdiction where it would not otherwise
be required to qualify but for this Section 4(d), (ii) subject itself to
taxation in any such jurisdiction, or (iii) submit to the general service of
process in any such jurisdiction;
(e) use its commercially reasonable efforts to cause all Registrable Shares
covered by such Registration Statement to be registered and approved by such
other governmental agencies or authorities in the United States, if any, as may
be necessary to enable the Holders thereof to consummate the disposition of such
Registrable Shares; provided, however, that the Company shall not be required to
take any action to comply with this Section 4(e) if it would require the Company
or any of its subsidiaries to (i) qualify generally to do business in any
jurisdiction or to register as a broker or dealer in such jurisdiction where it
would not otherwise be required to qualify but for this Section 4(e) and except
as may be required by the Securities Act, (ii) subject itself to taxation in any
such jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;
(f) notify FBR, Selling Holders' Counsel, if any, and each Holder with
Registrable Shares covered by a Registration Statement promptly and, if
requested by FBR, Selling Holders' Counsel, if any, or any such Holder, promptly
confirm such advice in writing at the address determined in accordance with
Section 10(c), (i) when such Registration Statement has become effective and
when any post-effective amendments thereto become effective or upon the filing
of a supplement to any Prospectus, (ii) of the issuance by the Commission or any
state securities authority of any stop order suspending the effectiveness of
such Registration Statement or the initiation, assertion or threat of any
Proceedings for that purpose, (iii) of any request by the Commission or any
other federal, state or foreign governmental authority for amendments or
supplements to such Registration Statement or related Prospectus or for
additional information, and (iv) of any reason, including without limitation,
the happening of any event during the period such Registration Statement is
effective, as a result of which such Registration Statement or the related
Prospectus or any document incorporated by reference therein, in any case,
contains any 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,
in light of the circumstances under which they were made, riot misleading (which
information shall be accompanied by an instruction to suspend the use of the
Registration Statement and the related Prospectus until the requisite changes
have been made);
(g) during the period of time referred to in Section 4(a) above, use its
commercially reasonable efforts to avoid the issuance of, or if issued, to
obtain the withdrawal of, any order enjoining or suspending the use or
effectiveness of a Registration Statement or suspending of the qualification (or
exemption from qualification) of any of the Registrable Shares for sale in any
jurisdiction, as promptly as practicable;
-11-
(h) upon request, promptly furnish to FBR, Selling Holders' Counsel, if
any, and each requesting Holder with Registrable Shares covered by a
Registration Statement, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment or supplement thereto
(without documents incorporated therein by reference or exhibits thereto, unless
requested);
(i) except as provided in Section 5, upon the occurrence of any event
contemplated by Section 4(f)(iv) hereof, use its commercially reasonable efforts
to promptly prepare a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Shares, such Prospectus will not contain
any 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 light of the circumstances under which they were made, not misleading; and
promptly furnish to FBR, Selling Holders' Counsel, if any, and each requesting
Holder, without charge, a reasonable number of copies of such Prospectus and any
supplement or post-effective amendment to the Registration Statement or
Prospectus and any document incorporated therein by reference or so filed, as
FBR, Selling Holders' Counsel, if any, or such Holder may reasonably request;
(j) if requested by FBR, Selling Holders' Counsel, if any, the
representative of the underwriters (in an Underwritten Offering), if any, or any
Holder of Registrable Shares being sold in connection with a Registration
Statement, (i) promptly incorporate in a Prospectus supplement or post-effective
amendment such material information as FBR, Selling Holders' Counsel, if any,
the representative of the underwriters, if any, or such Holder indicates in
writing relates to them, and (ii) use its commercially reasonable efforts to
make all required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received written
notification of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(k) in the case of an Underwritten Offering, use its commercially
reasonable efforts to furnish or cause to be furnished to the underwriters a
signed counterpart, addressed to the underwriters, of: (i) an opinion of counsel
for the Company, dated the date of each closing under the underwriting
agreement, reasonably satisfactory to the underwriters (an "Opinion"); and a
copy of such Opinion shall be provided to FBR; and (ii) a "comfort" letter,
dated the effective date of such Registration Statement and the date of each
closing under the underwriting agreement, signed by the independent public
accountants who have certified the Company's financial statements included in
such Registration Statement, covering substantially the same matters with
respect to such Registration Statement (and the Prospectus included therein) and
with respect to events subsequent to the date of such financial statements, as
are customarily covered in accountants' letters delivered to underwriters in
underwritten public offerings of securities and such other financial matters as
FBR and the underwriters may reasonably request (a "Comfort Letter"); and a copy
of any such Comfort Letter shall be delivered to FBR; in the case of a
Registration Statement that does not involve an Underwritten Offering, use its
commercially reasonable efforts to furnish to FBR a signed counterpart,
addressed to FBR, of a Comfort Letter, dated the initial effective date of such
Registration Statement and on the date of each quarterly or year-end
post-effective amendment thereto, in form and substance reasonably satisfactory
to FBR and a copy of any Opinion delivered in connection with such Registration
Statement;
(l) enter into customary agreements (including in the case of an
Underwritten Offering, an underwriting agreement in customary form and
reasonably satisfactory to the Company) and take all other reasonable action in
connection therewith in order to expedite or facilitate the distribution of the
Registrable Shares included in such Registration Statement and, in the case of
an Underwritten Offering, make representations, warranties and agreements
(including indemnities) to FBR, the Holders of Registrable Shares covered by
such Registration Statement and to the underwriters in such form and
-12-
scope as are customarily made by issuers to selling stockholders and
underwriters in underwritten offerings, respectively, and confirm the same in
writing to the extent customary if and when requested;
(m) make available for inspection by FBR, Selling Holders' Counsel, if any,
and the representatives of any underwriters participating in any disposition
pursuant to a Registration Statement and any one counsel and accounting firm
retained by each of FBR, the Holders and the underwriters, respectively, during
normal business hours and upon reasonable notice, all financial and other
records, pertinent corporate documents and properties of the Company and
cooperate with, and cause the respective officers, directors, employees and
agents of the Company to supply all information reasonably requested by such
parties in connection with a Registration Statement and the due diligence review
of the Registration Statement and the information contained or incorporated
therein; provided, however, that such records, documents or information that the
Company determines, in good faith, to be confidential and with respect to which
the Company notifies the foregoing parties in advance of such confidential
nature, shall not be disclosed by the foregoing parties unless (i) the
disclosure of such records, documents or information is necessary to avoid or
correct a material misstatement or omission in a Registration Statement or
Prospectus, (ii) the release of such records, documents or information is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, or (iii) such records,, documents or information have been
generally made available to the public; concurrent with the initial filing of a
Registration Statement with the Commission, pay the sum of up to $50,000 to FBR,
by wire transfer of immediately available funds, to reimburse FBR's fees and
expenses associated with its due diligence review of the Registration Statement
and the information contained or incorporated therein;
(n) use its commercially reasonable efforts to satisfy the criteria for
listing and list or include (if the Company satisfies the criteria for listing
or inclusion on such exchange or market) or include all Registrable Shares on
the New York Stock Exchange or The Nasdaq Stock Market as soon as practicable
(including, without limitation, seeking to cure in the Company's listing or
inclusion application any deficiencies cited by the exchange or market) and
thereafter use commercially reasonable efforts to maintain such listing;
(o) use its commercially reasonable efforts to prepare and timely file all
documents, reports and certifications required by the Securities Act and the
Exchange Act at all times beginning from the date the Company is first subject
to such filing, reporting or certification requirements through the date no
Holders hold Registrable Shares;
(p) provide a CUSIP number for all Registrable Shares, not later than the
effective date of the Registration Statement;
(q) (i) otherwise use its commercially reasonable efforts to comply with
all applicable rules and regulations of the Commission and, as applicable, the
New York Stock Exchange, The Nasdaq Stock Market or other listing standard, (ii)
to make generally available to its security holders, and to deliver to you, an
earnings statement of the Company (which will satisfy the provisions of Section
11(a) of the Securities Act) covering a period of twelve months beginning after
the effective date of the Registration Statement (as defined in Rule 158(c) of
the Securities Act) as soon as is reasonably practicable after the termination
of such twelve-month period but not later 60 days following such twelve-month
period; and (iii) not file any Registration Statement or Prospectus or amendment
or supplement to such Registration Statement or Prospectus to which FBR, Selling
Holders' Counsel, if any, or any Holder of Registrable Shares covered by such
Registration Statement shall have, upon advice of counsel, reasonably objected
on the grounds that such Registration Statement or Prospectus or amendment or
supplement does not comply in all material respects with the requirements of the
Securities Act, provided that the Company may file and request effectiveness of
such Registration Statement following such time as the Company shall have used
its commercially reasonable efforts to resolve any such issue with the objecting
Holder and shall
-13-
have advised the Holder in writing of its reasonable belief, upon advice of
counsel, that such filing complies with the requirements of the Securities Act;
(r) provide and cause to be maintained a registrar and transfer agent for
all Registrable Shares covered by any Registration Statement from and after a
date not later than the effective date of such Registration Statement;
(s) in connection with any sale or transfer of the Registrable Shares
(whether or not pursuant to a Registration Statement) that will result in the
security being delivered no longer being Registrable Shares, cooperate with the
Holders and the representative of the underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing the Registrable
Shares to be sold, which certificates shall not bear any transfer restrictive
legends (other than as required by the Company's Charter) and to enable such
Registrable Shares to be in such denominations and registered in such names as
the representative of the underwriters, if any, or the Holders may reasonably
request at least 3 Business Days prior to any sale of the Registrable Shares;
(t) in connection with the initial filing of a Shelf Registration Statement
or any Subsequent Shelf Registration Statement and each amendment thereto with
the Commission, prepare and timely file with the NASD all forms and information
required or requested by the NASD which are required to be prepared and filed by
the Company or its representatives or as may be reasonably requested by FBR or
the underwriters;
(u) upon effectiveness of the first Registration Statement filed by the
Company under this Agreement, take such actions and make such filings as are
necessary to effect the registration of the Common Stock under the Exchange Act
simultaneously with or as soon as practicable following the effectiveness of the
Registration Statement.
The Company may require the Holders to furnish to the Company such
information regarding the proposed distribution by such Holder of such
Registrable Shares as the Company may from time to time reasonably request in
writing or as shall be required to effect the registration of the Registrable
Shares and no Holder shall be entitled to be named as a selling stockholder in
any Registration Statement and no Holder shall be entitled to use the Prospectus
forming; a part thereof if such Holder does not provide such reasonable
information to the Company. Any Holder that sells Registrable Shares pursuant to
a Registration Statement shall be required to be named as a selling stockholder
in the related Prospectus and to deliver or cause to be delivered a Prospectus
to purchasers. Each Holder further agrees to furnish promptly to the Company in
writing all information required from time to time to make the information
previously furnished by such Holder not misleading.
Each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(f)(ii), 4(f)(iii) or
4(f)(iv) hereof, such Holder will immediately discontinue disposition of
Registrable Shares pursuant to a Registration Statement until such Holder's
receipt of copies of the supplemented or amended Prospectus. If so directed by
the Company, such Holder will deliver to the Company (at the reasonable expense
of the Company) all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Registrable
Shares current at the time of receipt of such notice.
5. BLACK-OUT PERIOD
(a) Subject to the provisions of this Section 5 and a good faith
determination by a majority of the independent members of the Board of Directors
of the Company that it is in compliance with the terms hereof and that it is in
the best interests of the Company to suspend the use of the Registration
-14-
Statement, following the effectiveness of a Registration Statement (and the
filings with any international, federal or state securities commissions), the
Company, by written notice to FBR, Selling Holders' Counsel, if any, and the
Holders, may direct the Holders to suspend sales of the Registrable Shares
pursuant to a Registration Statement for such times as the Company reasonably
may determine is necessary and advisable (but in no event for more than an
aggregate of 90 days in any rolling 12 month period commencing on the closing
date of the transactions contemplated by the Purchase/Placement Agreement), if
any of the following events shall occur: (i) the representative of the
underwriters of an Underwritten Offering of Common Stock by the Company has
advised the Company that the offer or sale of Registrable Shares pursuant to the
Registration Statement would have a material adverse effect on the Company's
Underwritten Offering; (ii) a majority of the independent directors of the Board
of Directors of the Company determines in good faith that the offer or sale of
any Registrable Shares would materially impede, delay or interfere with any
proposed financing, offer or sale of securities, acquisition, merger, business
combination, corporate reorganization or other similar material transaction
involving the Company; or (iii) a majority of the independent directors of the
Board of Directors of the Company determines in good faith that it is required
by law, rule or regulation to supplement the Registration Statement or file a
post-effective amendment to the Registration Statement in order to incorporate
information into the Registration Statement for the purpose of (1) including in
the Registration Statement any financial information required under Section
10(a)(3) of the Securities Act; (2) reflecting in the Prospectus included in the
Registration Statement any facts or events arising after the effective date of
the Registration Statement (or of the most-recent post-effective amendment)
that, individually or in the aggregate, represents a fundamental change in the
information set forth therein; or (3) including in the Prospectus included in
the Registration Statement any material information with respect to the plan of
distribution not disclosed in the Registration Statement or any material change
to such information. Upon the occurrence of any such suspension, the Company
shall use every reasonable effort to cause the Registration Statement to become
effective or to promptly amend or supplement the Registration Statement on a
post-effective basis or to take such action as is necessary to make resumed use
of the Registration Statement as soon as possible.
(b) In the case of an event that causes the Company to suspend the use of a
Registration Statement (a "Suspension Event"), the Company shall-give written
notice (a "Suspension Notice") to FBR and the Holders to suspend sales of the
Registrable Shares and such notice shall state generally the basis for the
notice and that such suspension shall continue only for so long as the
Suspension Event or its effect is continuing and the Company is using every
reasonable effort and taking all reasonable steps to terminate suspension of the
use of the Registration Statement as promptly as possible. The Holders shall not
effect any sales of the Registrable Shares pursuant to such Registration
Statement (or such filings) at any time after it has received a Suspension
Notice from the Company and prior to receipt of an End of Suspension Notice (as
defined below). If so directed by the Company, each Holder will deliver to the
Company (at the expense of the Company) all copies other than permanent file
copies then in such Holder's possession of the Prospectus covering the
Registrable Shares at the time of receipt of the Suspension Notice. The Holders
may recommence effecting sales of the Registrable Shares pursuant to the
Registration Statement (or such filings) following further written notice to
such effect (an "End of Suspension Notice") from the Company, which End of
Suspension Notice shall be given by the Company to the Holders and FBR in the
manner described above promptly following the conclusion of any Suspension Event
and its effect.
(c) Notwithstanding any provision herein to the contrary, if the Company
shall give a Suspension Notice with respect to any Registration Statement
pursuant to this Section 5, the Company agrees that it shall extend the period
of time during which such Registration Statement shall be maintained effective
pursuant to this Agreement by one times the number of days during the period
from the date of receipt by the Holders of the Suspension Notice to and
including the date of receipt by the Holders of the End of Suspension Notice and
provide copies of the supplemented or amended Prospectus
-15-
necessary to resume sales, with respect to each Suspension Event; and, if
applicable, the period for which the shares of Common Stock covered by such
Registration Statement remain Registrable Shares shall be commensurately
extended.
6. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless (i) each Holder and
FBR, (ii) each Affiliate and other Person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act), any such Person described in clause (i) (any of the Persons referred to in
this clause (ii) being hereinafter referred to as a "Controlling Person"), and
(iii) the respective officers, directors, partners, members, managers,
employees, representatives and agents of any such Person or any Controlling
Person (any Person referred to in clause (i), (ii) or (iii) may hereinafter be
referred to as a "Purchaser Indemnitee"), from and against any and all losses,
claims, damages, judgments, Proceedings, out-of-pocket expenses, and other
liabilities (collectively, the "Liabilities"), including without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any Proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of counsel
to any Purchaser Indemnitee, joint or several, directly or indirectly related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (as amended or supplemented if the Company shall have
furnished to such Purchaser Indemnitee any amendments or supplements thereto),
or any preliminary Prospectus or any other document prepared in part by the
Company used to sell the Registrable Shares, or 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 under which they were
made, not misleading, except to the extent such Liabilities arise out of or are
based upon (i) any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Purchaser Indemnitee furnished to the Company or any underwriter in writing
by such Purchaser Indemnitee expressly for use therein, (ii) any untrue
statement contained in or omission from a preliminary Prospectus if a copy of
the Prospectus (as then amended or supplemented, if the Company shall have
furnished to or on behalf of the Holder participating in the distribution
relating to the relevant Registration Statement any such amendments or
supplements thereto) was not sent or given by or on behalf of such Holder after
having been received by such Holder to the Person asserting any such Liabilities
who purchased Registrable Shares, if such Prospectus (or Prospectus as amended
or supplemented) is required by law to be sent or given at or prior to the
written confirmation of the sale of such Registrable Shares to such Person and
the untrue statement contained in or omission from such preliminary Prospectus
was corrected in the Prospectus (or the Prospectus as amended or supplemented),
or (iii) use by a Holder participating in the distribution relating to the
relevant Registration Statement of such Registration Statement or the related
Prospectus during a period when a stop order has been issued in respect thereof
or any motion or proceeding for that purpose have been initiated or use of such
Registration Statement or Prospectus has been suspended pursuant to Section
4(f)(ii), 4(f)(iii) or 4(f)(iv) and notice thereof has been given by the Company
to, and received by, such Holder prior to such use pursuant to Section 4(f). The
Company shall notify FBR and the Holders promptly of the institution, threat or
assertion of any Proceedings of which it shall become aware in connection with
the matters addressed in this Section of the Agreement which involves a
Purchaser Indemnitee. The indemnity provided for herein shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Purchaser Indemnitee.
(b) In connection with any Registration Statement in which a Holder is
participating and as a condition to such participation, such Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, each
Person who signs the Registration Statement or controls the Company within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act, FBR and its Affiliates and the respective partners, directors, officers,
members, managers, trustees, representatives,
-16-
employees and agents of the Company or any of its subsidiaries and each such
Person to the same extent as the foregoing indemnity from the Company to each
Purchaser Indemnitee, but only with reference to untrue statements or omissions
or alleged untrue statements or omissions made in reliance upon and in strict
conformity with information relating to such Purchaser Indemnitee furnished to
the Company in writing by such Purchaser Indemnitee or its representatives
expressly for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary Prospectus. The liability of any
Purchaser Indemnitee pursuant to this paragraph shall in no event exceed the
gross proceeds received by such Purchaser Indemnitee from sales of Registrable
Shares giving rise to such obligations. If the Holder elects to include
Registrable Shares in the Underwritten Offering pursuant to the IPO Registration
Statement, the Holder shall be required to agree to such customary
indemnification provisions as may be reasonably required by the underwriters in
connection with such Underwritten Offering.
(c) If any Proceeding (including any governmental or regulatory
investigation) shall be brought or asserted against any Person in respect of
which indemnity may be sought pursuant to paragraph (a) or (b) above, such
Person (the "Indemnified Party," or if more than one Indemnified Party, the
"Indemnified Parties"), shall promptly notify the Person against whom such
indemnity may be sought (the "Indemnifying Party"), in writing of the
commencement thereof (but the failure to so notify an Indemnifying Party shall
not relieve it from any liability which it may have under this Section 6, except
to the extent the Indemnifying Party is actually and materially prejudiced by
the failure to give notice and then only to the extent of such prejudice), and
the Indemnifying Party, upon request of the Indemnified Party, shall assume the
defense of such Proceeding and retain counsel chosen by the Indemnifying Party
and approved by the Indemnified Party, which approval shall not be unreasonably
withheld, to represent the Indemnified Party and any others the Indemnifying
Party may reasonably designate in such Proceeding and shall pay the reasonable
fees and expenses actually incurred by such counsel related to such Proceeding.
Notwithstanding the foregoing, in any such Proceeding, any Indemnified Party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party, unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed in
writing to the contrary, (ii) the Indemnifying Party failed within a reasonable
time (which shall not be longer than 30 days) after notice of commencement of
the Proceeding to assume the defense and engage counsel approved by the
Indemnified Party (such approval not to be unreasonably withheld) as hereinabove
provided, (iii) the Indemnifying Party and its counsel do not in a reasonable
manner pursue the defense of such Proceeding, (iv) the named parties to any such
Proceeding (including any impleaded parties), include both such Indemnified
Party and the Indemnifying Party, or any Affiliate of the Indemnifying Party,
and such Indemnified Party shall have been reasonably advised by counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the Indemnifying Party or such Affiliate of
the Indemnifying Party or (v) a conflict may exist between such Indemnified
Party and the Indemnifying Party or such Affiliate of the Indemnifying Party (in
which case the Indemnifying Party shall not have the right to assume nor direct
the defense of such Proceeding on behalf of such Indemnified Party, it being
understood, however, that the Indemnifying Party shall not, in connection with
any one such Proceeding or separate but substantially similar or related
Proceedings arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel), for all such Indemnified Parties involved in the
same matter, which firm shall be designated in writing by those Indemnified
Parties who sold a majority of the Registrable Shares sold by all such
Indemnified Parties (excluding Registrable Shares sold by the Company or any of
their Affiliates) and any such separate firm for the Company, the directors, the
officers and such control Persons of the Company as shall be designated in
writing by the Company). The Indemnifying Party shall not be liable for any
settlement of any Proceeding effected without its written consent, which consent
shall not be unreasonably withheld, but if settled with such consent or if there
is a final judgment for the plaintiff, the Indemnifying Party agrees to
indemnify any Indemnified Party from and against any loss or Liability resulting
from such
-17-
settlement or judgment. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement of any pending or
threatened Proceeding in respect of which any Indemnified Party is or could have
been a party or the subject thereof and indemnity could have been sought
hereunder by such Indemnified Party, unless (i) such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject matter of such Proceeding in a form reasonably satisfactory
to the Indemnified Party and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of the
Indemnified Party.
(d) If the indemnification provided for in paragraphs (a) and (b) of this
Section 6 is for any reason held to be unavailable to an Indemnified Party in
respect of any Liabilities referred to therein (other than by reason of the
exceptions provided therein) or is insufficient to hold harmless a party
indemnified thereunder, then each Indemnifying Party under such paragraphs, in
lieu of indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such Liabilities
(i) in such proportion as is appropriate to reflect the relative benefits of the
Indemnified Party on the one hand and the Indemnifying Party(ies) on the other
in connection with the statements or omissions that resulted in such
Liabilities, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Indemnifying Party(ies) and the Indemnified Party, as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand and any Purchaser Indemnitees on the other hand shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or by such
Purchaser Indemnitees and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
(even if such Indemnified Parties were treated as one entity for such purpose),
or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph 6(d) above. The amount paid or payable
by an Indemnified Party as a result of any Liabilities referred to in paragraph
6(d) shall be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses actually incurred by such Indemnified Party
in connection with investigating or defending any such Proceeding.
Notwithstanding the provisions of this Section 6, in no event shall a Purchaser
Indemnitee be required to contribute any amount in excess of the amount by which
proceeds (net of any discounts or commissions) received by such Purchaser
Indemnitee from sales of Registrable Shares exceeds the amount of any damages
that such Purchaser Indemnitee has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. For
purposes of this Section 6, each Person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) or is an Affiliate of FBR or a Holder shall have the same rights to
contribution as FBR or such Holder, as the case may be, and each Person, if any,
who controls (within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act) the Company, and each officer, director, partner,
member, manager, employee, representative or agent of the Company shall have the
same rights to contribution as the Company. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any Proceeding against
such party in respect of which a claim for contribution may be made against
another party or parties, notify each party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any
obligation it or they may have under this Section 6 or otherwise, except to the
extent that any party is actually and materially prejudiced by the failure to
give notice and then only to the extent of such prejudice. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act), shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
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(f) The indemnity and contribution agreements contained in this Section 6
will be in addition to any liability which the Indemnifying Parties may
otherwise have to the Indemnified Parties referred to above. The Purchaser
Indemnitee's obligations to contribute pursuant to this Section 6 are several in
proportion to the respective number of Registrable Shares sold by each of the
Purchaser Indemnitees hereunder and not joint.
7. MARKET STAND-OFF AGREEMENT
Each Holder hereby agrees that it shall not, to the extent requested in
writing by the Company or a managing or co-lead underwriter of securities of the
Company, directly or indirectly sell, offer to sell (including without
limitation any short sale), pledge, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of or otherwise dispose of or transfer any
Registrable Shares or other shares of Common Stock or any securities convertible
into or exchangeable or exercisable for shares of Common Stock then owned by
such Holder (other than to donees or partners of the Holder who agree to be
similarly bound) for a period commencing 30 days prior to the effective date of
the IPO Registration Statement of the Company filed under the Securities Act and
ending 60 days following such effective date; provided, however, that:
(a) the restrictions above shall not apply to Registrable Shares sold
pursuant to the IPO Registration Statement;
(b) all executive officers and directors of the Company then holding shares
of Common Stock or securities convertible into or exchangeable or exercisable
for shares of Common Stock enter into similar agreements for not less than the
entire time period required of the Holders hereunder; and
(c) the Holders shall be allowed any concession or proportionate release
allowed to any executive officer or director of the Company that entered into
similar agreements (with such proportion being determined by dividing the number
of shares being released with respect to such executive officer or director by
the total number of issued and outstanding shares held by such executive officer
or director).
In order to enforce the foregoing covenant, the Company shall have the
right to place restrictive legends on the certificates representing the
securities subject to this Section 7 and to impose stop transfer instructions
with respect to the Registrable Shares and such other securities of each Holder
(and the securities of every other Person subject to the foregoing restriction)
until the end of such period.
8. TERMINATION OF THE COMPANY'S OBLIGATION
Subject to Section 10(m), the Company shall have no further obligations
pursuant to this Agreement at such time as no Registrable Shares are
outstanding.
9. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
From and after the date of this Agreement, the Company shall not, without
the prior written consent of the Holders (other than Affiliates of the Company,
excluding FBR, if applicable) beneficially owning not less than a majority of
the then outstanding Registrable Shares (excluding Registrable Shares held by
Affiliates of the Company, other than FBR, if applicable), enter into any
agreement with any holder or prospective holder of any securities of the Company
that would allow such holder or prospective holder (a) to include such
securities in any Registration Statement filed pursuant to the terms hereof,
unless under the terms of such agreement, such Holder or prospective Holder may
include such securities in any such registration only to the extent that the
inclusion of such holder's or prospective
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holder's securities will not reduce the amount of Registrable Shares of the
Holders included in the Registration Statement, or (b) to have such Holder's or
prospective Holder's securities registered on a registration statement that
could be declared effective prior to the effective date of any Registration
Statement filed pursuant to this Agreement.
10. MISCELLANEOUS
(a) Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement, each Holder, in addition to being entitled to
exercise all rights provided herein or, in the case of FBR, in the
Purchase/Placement Agreement, or granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Even upon satisfaction of all obligations set forth in Section 6, the Company
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of any of the provisions of this Agreement
and hereby further agree that, in the event of any action for specific
performance in respect of such breach, it shall waive the defense that a remedy
at law would be adequate and shall not request or require any posting of a bond
by the plaintiff in connection therewith.
(b) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof may not be
given, without the written consent of the Company, FBR and Holders beneficially
owning not less than a majority of the then outstanding Registrable Shares;
provided, however, that for purposes of this Section 10(b), Registrable Shares
that are owned, directly or indirectly, by an Affiliate of the Company,
excluding FBR, if applicable, shall not be deemed to be outstanding. No
amendment shall be deemed effective unless it applies uniformly to all Holders.
Notwithstanding the foregoing, a waiver or consent to or departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of a Holder whose securities are being sold pursuant to a Registration
Statement or FBR and that does not directly or indirectly affect, impair, limit
or compromise the rights of any other Holder may be given by such Holder or FBR,
as the case may be; provided that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(c) Notices. All notices and other communications, provided for or
permitted hereunder shall be made in writing and delivered by facsimile (with
receipt confirmed), overnight courier or registered or certified mail, return
receipt requested, or by telegram:
(i) if to a Holder, at the most current address given by the transfer
agent and registrar of the Common Stock;
(ii) if to the Company at the offices of the Company at 0000 Xxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx Xxxxx,
(facsimile (000) 000-0000); with a copy (which shall not constitute notice)
to Xxxxxxxx Chance US LLP, 00 X. 00xx Xxxxxx, Xxx Xxxx, XX 00000,
Attention: Xxx Xxxxxxxxx, Esq. (facsimile (000) 000-0000); and
(iii) if to FBR, at the officers of FBR at 0000 Xxxxxxxxxx Xxxxxx
Xxxxx, Xxxxxxxxx, XX 00000, Attention: Xxxxx Xxxxxxxx, (facsimile (703)
312-9501).
Receipt of any notice sent pursuant to this Agreement shall be deemed to be
delivered (x) one Business Day after sending by facsimile (with receipt
confirmed), (y) two Business Days after sending by overnight courier or (z) five
days after mailing by first class mail by the party giving such notice. The
Company shall cause the transfer agent to use commercially reasonable efforts to
maintain current addresses of the Holders.
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(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and permitted assigns of each of the parties
hereto, including, without limitation and without the need for an express
assignment or assumption, subsequent Holders. The Company agrees that the
Holders shall be third party beneficiaries to the agreements made hereunder by
FBR and the Company and shall be entitled to the benefits and subject to the
obligations hereof, and each Holder shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder, provided, that such Holder fulfills
all of its obligations hereunder.
(e) Stock Legend. In addition to any other legend that may appear on the
stock certificates evidencing the Registrable Shares, for so long as any Shares
remain Registrable Shares each stock certificate evidencing such Registrable
Shares shall contain a legend to the following effect: "THE SHARES EVIDENCED BY
THIS CERTIFICATE ARE SUBJECT IPO AND ENTITLED IPO THE OBLIGATIONS AND BENEFITS
OF A CERTAIN REGISTRATION RIGHTS AGREEMENT, DATED MARCH 23, 2005."
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE (INCLUDING SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF
LAWS RULES). EACH OF THE PARTIES HEREIPO HEREBY IRREVOCABLY SUBMITS IPO THE
NON-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN
DISTRICT OF NEW YORK OR ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW YORK
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING IPO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH OF
THE PARTIES HEREIPO IRREVOCABLY WAIVES, IPO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE IPO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(i) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their commercially reasonable efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties hereto that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
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(j) Entire Agreement. This Agreement, together with the Purchase/Placement
Agreement, is intended by the parties hereto as a final expression of their
agreement, and is 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 and therein. Without limiting the foregoing, this
Agreement supersedes, terminates and replaces all existing stockholders'
agreements and registration rights agreements among the parties hereto relating
to the equity securities of the Company, other than the registration rights
agreement relating to the limited partnership interests of Vintage Wine Trust
LP.
(k) Registrable Shares Held by the Company or its Affiliates. Whenever the
consent or approval of, or a selection by, the Holders of a specified percentage
of Registrable Shares is required hereunder, Registrable Shares held by the
Company or their Affiliates (excluding, if necessary, FBR) shall not be counted
in determining the number of then outstanding Registrable Shares or the number
of Registrable Shares providing such consent, approval or selection.
(l) Survival. This Agreement is intended to survive the consummation of the
transactions contemplated by the Purchase/Placement Agreement. The
indemnification and contribution obligations under Section 6 and the Company's
obligations under this Section 10 shall survive the termination of this
Agreement.
(m) Attorneys' Fees. In any Proceeding brought to enforce any provision of
this Agreement, or where any provision hereof is validly asserted as a defense,
the prevailing party, as determined by the court, shall be entitled to recover
its reasonable attorneys' fees from the losing party in addition to any other
available remedy.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
VINTAGE WINE TRUST INC.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Financial Officer
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.,
for itself and for the benefit of the Holders
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Senior Managing Director
