Exhibit 10.1.3
GULF ATLANTIC PUBLISHING, INC. AGREEMENT
This GULF ATLANTIC PUBLISHING, INC, Agreement (the "Agreement") is entered
into on this 21 day of Apri1, 2000, between Gulf Atlantic Publishing, Inc., a
Florida corporation ("GAP"), and Xxxxxxxx.xxx, a Pennsylvania corporation
("Client").
Whereas, GAP is in the business of planning, developing and implementing
advertising, marketing and promotional campaigns for corporations and other
business entities ("Advertising and Promotional Services");
Whereas, the Client desires to retain GAP to provide the Advertising and
Promotional Services, and GAP desires to provide such Advertising and
Promotional Services to Client, pursuant to the terms, conditions and
provisions contained in this Agreement;
Now, therefore, in consideration of the mutual promises contained herein
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Advertising and Promotional Services. Subject to Client's
compliance with each of the representations, warranties and covenants and
agreements made by Client in this Agreement, GAP agrees to provide to Client
the Advertising and Promotional Services identified on Exhibit A which is
attached hereto and incorporated herein by reference, for the period
commencing on the latter of (the "Effective Date") the date that this
Agreement is executed and delivered by Client or the date that GAP receives
payment of its fees as herein provided.
2. Obligations and Responsibilities of Client. As of the date hereof
and during the Term of this Agreement, Client agrees as follows.
1. Representation and Warranties.
Client represents and warrants to GAP that:
(1) Organization. Client is a corporation duly organized,
validly existing and in good standing under the laws of the State of its
incorporation and it is duly qualified to do business as a foreign corporation
in each jurisdiction in which it owns or leases property or engages in
business.
(2) Formal Action. Client has the corporate power and
authority to execute and deliver this Agreement and to perform each of its
obligations hereunder and this Agreement has been duly approved by Client's
Board of Directors.
Initial /s/GAP
(3) Valid and Binding Agreement. This Agreement has been
duly executed and delivered by Client and is the valid and binding obligation
of Client enforceable against it in accordance with its terms.
(4) No Violation. The execution, delivery and performance
of this Agreement does not and will not violate any provisions of the charter
or bylaws of Client or any agreement to which Client is a party or any
applicable law or regulation or order or decree of any court, arbitrator or
agency of government and no action of or filing with; any governmental or
public body or authority is required in connection with the execution,
delivery or performance of this Agreement.
(5) Litigation. No action, suit or proceeding is pending
against or affecting the Client or any of its properties before any court,
arbitrator or governmental body or administrative agency and none of the
persons owning beneficially or of record more than 10% of the outstanding
capital stock of the Client or any of the directors or officers of Client is a
party to any action, suit or proceeding before any federal or state court,
arbitrator or governmental body or administrative agency (other than routine
traffic violations) and no such person has been a party to any such
proceedings for more than the past five years. SEE 1999 10K attached./s/GAP
4-21-2000
(6) Accuracy of Information. The information furnished by
Client to GAP regarding the business, operations, financial condition,
including financial statements, business plans and biographical information
regarding the Client's directors and officers (collectively referred to as the
"Information Package") is complete and accurate in all material respects and
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made
not misleading.
2.Covenants and Agreements.
Client covenants and agrees to comply with the following covenants:
(1) Client Certification. Client acknowledges that it is
responsible for the accuracy and completeness of the Information Package and
for all other information furnished to GAP and for the accuracy and
completeness of the contents of all materials prepared by GAP for and on
behalf of Client. The Client hereby designates the individuals listed on
Exhibit B attached hereto and incorporated herein by reference as the duly
authorized representatives of Client for purposes of certifying to GAP the
accuracy of all documents, advertisements or other materials prepared by GAP
for and on behalf of Client. The Client agrees to promptly advise GAP in
writing of any condition, event, circumstance or act that would constitute a
material adverse change in the business, properties, financial condition or
business prospects of the Client or which would make any of the information
contained in the Information Package or in any report, advertorial or other
document prepared by GAP for and on behalf of Client misleading in any
material respect. Client hereby agrees that GAP and its directors, officers,
agents and employees may rely on the Information Package and on all other
information furnished by Client, and on each and every certification provided
by an authorized representative of Client, until GAP is advised in writing by
an authorized representative of Client that the information previously
furnished to GAP is inaccurate or incomplete in any material respect. Client
acknowledges that GAP shall have no obligation to provide services hereunder
until it has received a written certificate from an authorized representative
of Client as follows: GAP shall prepare proofs and/or tapes of the agreed upon
materials and information, as set for dissemination, for the Client's review
and approval and Client shall sign and return such materials marking all
corrections and changes that the Client believes appropriate. Client
acknowledges that GAP will make oral representations based on the information
furnished hereunder and the Client authorizes such representations.
(2) Books and Records. Client shall maintain true and
complete books, records and accounts in which true and correct entries shall
be made of its transactions in accordance with generally accepted accounting
principles consistently applied ("GAP").
(3)Financial and Other Information. Client agrees to
furnish to GAP the following information:
(i) Annual Financial Statements As soon as
practicable, and in any event within 90 days after the close of the Client's
fiscal year, annual financial statements including a balance sheet, an income
statement, a statement of cash flows, and a statement of stockholder's equity,
and all notes thereto prepared in accordance with GAP and audited by an
independent certified public accountant.
(ii) Quarterly Financial Statements. As soon as
practicable, and in any event within 45 days after the end of each fiscal
quarter, quarterly financial statements, including a balance sheet, a
quarterly and year-to-date income statement, a statement of cash flows, and a
statement of stockholder's equity, prepared by Client in accordance with GAP
and certified by the chief financial officer and chief executive officer of
Client as fairly presenting, subject to normal year-end audit adjustments, the
Client's financial position as of and for the periods indicated.
(4) GAP Reliance on Client's Full Disclosure. Client will
provide, or cause to be provided, to GAP all financial and other information
requested by GAP for the purpose of rendering its services pursuant to this
Agreement. Client recognizes and confirms that GAP will use such information
in performing the services contemplated by this Agreement without
independently verifying such information and that GAP does not assume any
responsibility for the accuracy or completeness of such information. The
persons executing this Agreement on behalf of Client certify that there is no
fact known to them which materially adversely affects or may (so far as the
Client's senior management can now reasonably foresee) materially adversely
affect the business, properties, condition (financial or other) or operations
(present or prospective) of the Client which has not been set forth in written
form delivered by Client to GAP. The persons executing this Agreement on
behalf of Client agree to keep GAP promptly informed of any facts hereafter
know to Client which materially adversely affects or may (so far as the
Client's senior management can now reasonably foresee) materially adversely
affect the business, properties, condition (financial or other) or operations
(present or prospective) of Client.
(5) Legal Representation. Client acknowledges and agrees
that it has been and will continue to be, represented by legal counsel
experienced in corporate and securities laws and Client acknowledges that it
has been advised as to the obligations imposed on it pursuant to such laws and
understands that it will have the obligation and responsibility to see that
all such laws are complied with at all times during the Term of this
Agreement.
3. Compensation. In consideration of the Advertising and
Promotional Services to be performed by GAP hereunder, Client hereby agrees to
compensate GAP in the manner and in the amount specified in Exhibit C which is
attached hereto and incorporated herein by reference thereto. In addition to
the compensation to be paid to GAP as provided in Exhibit C, Client shall
reimburse GAP promptly after a written request therefore accompanied by
appropriate documentation, for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of GAP's counsel, if any)
incurred in connection with providing services hereunder or to the extent
provided in Exhibit C.
4. Indemnity. Client acknowledges that it is responsible
for the accuracy of the Information Package and all other information provided
to GAP and for the contents of all materials, advertorials and other
information prepared by GAP for an on behalf of Client as provided herein and
Client agrees to indemnify CAP in accordance with the Indemnification
Agreement set forth in Exhibit D, which is attached hereto and incorporated
herein by reference.
5. Relationship of the Parties. This Agreement provides
for the providing of marketing, promotional and advertising services by GAP to
Client and the provisions herein for compliance with financial covenants,
delivery of financial statements, and similar provisions are intended solely
for the benefit of GAP to provide it with information on which it may rely in
providing services hereunder and nothing contained in this Agreement shall be
construed as permitting or obligating GAP to act as a financial or business
advisor or consultant to Client, as permitting or obligating GAP to
participate in the management of client's business, as creating or imposing
any fiduciary obligation on the part of GAP with respect to the provisions of
services hereunder and GAP shall have no such duty or obligation to client, as
providing or counseling Client as to the compliance by Client with any federal
or state securities or other laws effecting the services to be provided
hereunder, or as creating any joint venture, agency, or other relationship
between the parties other than as explicitly and specifically stated in this
Agreement. The Client acknowledges that it has had the opportunity to obtain
the advice of experienced counsel of its own choosing in connection with the
negotiation and execution of this Agreement, the provision of services
hereunder and with respect to all matters contained herein, including, without
limitation, the provisions of Section 4 hereof..
6. Survival of Certain Provisions. The Client's
obligations to pay the fees and expenses of GAP pursuant to Section 3 of this
Agreement and to comply with the indemnification provisions pursuant to
Section 4 shall remain operative and in full force and effect regardless of
any termination of this Agreement and shall be binding upon, and shall inure
to the benefit of, GAP and, in the case of the indemnity agreement, the
persons, agents, employees, officers, directors and controlling persons
referred to in the Indemnification Agreement, and their respective successors
and assigns and heirs, and no other person shall acquire or have any right
under or by virtue of this Agreement. All amounts paid or required to be paid
under Sections 3 and 4 of this Agreement shall be fully earned on the
Effective Date of this Agreement notwithstanding prior termination of this
Agreement.
7. Termination. GAP shall have the right in its sole and
absolute discretion to terminate its obligations hereunder and to immediately
cease providing Advertising and Promotional Services pursuant to this
Agreement if GAP, in the exercise of its reasonable judgment, believes that
the representations and warranties made by Client hereunder are inaccurate in
any material respect or if Client breaches any of its covenants and agreements
contained herein or if any federal or state governmental agency or
instrumentality institutes an investigation or suit against Client or
pertaining to the services hereunder.
8. Non-Solicitation Covenant. Client agrees that it will
not directly or indirectly during the term of this Agreement or for three
years following the termination or expiration of this Agreement, either
voluntarily or involuntarily, for any reason whatsoever, recruit or hire or
attempt to recruit or hire any employee of GAP or of any of its affiliates or
subsidiaries, or otherwise induce any such employees to leave the employment
of GAP or of any of its affiliates or subsidiaries or to become an employee of
or otherwise be associated with Client or any affiliate or subsidiary of
Client. Client acknowledges that GAP and its affiliates and subsidiaries have
invested a significant amount of time, energy and expertise in the training of
their employees to be able to provide Advertising and Promotional Services and
Client therefore agrees that this covenant is reasonable and agrees that the
breach of such covenant is very likely to result in irreparable injury to GAP,
which is unlikely to be adequately compensated by damages. Accordingly, in the
event of a breach or threatened breach by Client of this Section 8, GAP shall
be entitled to an injunction restraining Client and any affiliate, subsidiary
or director or officer thereof from recruiting, or hiring or attempting to
recruit or hire any employee of GAP or of any affiliate or subsidiary of GAP.
Nothing herein shall be construed as prohibiting GAP from pursuing any other
remedies available to GAP for such breach or threatened breach, including
recovery of damages from Client. The undertakings herein shall survive the
termination or cancellation of the Agreement for three years.
9.Miscellaneous.
A. Governing Law. This Agreement shall be governed by
the laws of the State of Florida applicable to contracts executed and
performed in the Circuit Court, Orange County, in the State of Florida
(without regard to the principles of conflicts of laws).
B. Entire Agreement. This Agreement and the Exhibits
hereto embody the entire agreement of the parties with respect to its subject
matter. There are no restrictions, promises, representations, warranties,
covenants, or undertakings other than those expressly set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter.
C. Amendments to be in Writing. This Agreement may be
amended only in a writing signed by all of the parties.
D. No Waivers by Course of Dealing; Limited Effect of
Waivers. No waiver shall be effective against any party unless it is in a
writing signed by that party. No course of dealing and no delay on the part of
GAP in exercising its rights shall operate as a waiver of that right or
otherwise prejudice GAP. GAP's failure to insist upon the strict performance
of any provision of this Agreement, or to exercise any, right or remedy
available to GAP, shall not constitute a waiver by GAP of such provision. No
specific waiver by GAP of any specific breach of any provision of this
Agreement shall operate as a general waiver of the provision or of any other
breach of the provision. Client shall have no right to cure any breach except
as specifically provided herein.
E. Counterparts. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
F. Cumulation of Rights and Remedies No right or
remedy of GAP under this Agreement is intended to preclude any other right or
remedy and every right and remedy shall coexist with every other right and
remedy now or hereafter existing, whether by contract, at law, or in equity.
G. Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the parties and their successors and
assigns. Client shall not have any right to assign any of its rights or
delegate any of its obligations or responsibilities under this Agreement
except as expressly stated herein.
H. Payment of Fees and Expenses on Enforcing Agreement
In the event of any dispute between the parties arising out of or related to
this Agreement or the interpretation thereof, at the trial level or appellate
level, the prevailing party shall be entitled to recover from the
non-prevailing party all costs and expenses, including reasonable fees and
disbursements of counsel which may be incurred in connection with such
proceeding, without limitation, including any costs and expenses of experts,
witnesses, depositions and other costs.
I. Notices. Any notice or other communication required
or permitted to be given hereunder shall be in writing, and shall be delivered
to the parties at the addresses set forth below (or to such other addresses as
the parties may specify by due notice to the others). Notices or other
communications shall be effective when received at the recipient's location
(or when delivered to that location if receipt is refused). Notices or other
communications given by facsimile transmission shall be presumed received at
the time indicated in the recipient's automatic acknowledgment. Notices or
other communications given by Federal Express or other recognized overnight
courier service shall be presumed received on the following business day.
Notices or other communications given by certified mail, return receipt
requested, postage prepaid, shall be presumed received 3 business days after
the date of mailing.
Client: Xxxxxxxx.xxx
000 Xxxx Xxxxxx Xx. Xxxxx 000
Xxxx Xxxxxxxxxxx. Xxxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxx, President
Telephone: 000-000-0000 Ext. 6733
Fax: 000-000-0000
GAP: Gulf Atlantic Publishing, Inc.
0000 Xxx Xxxx
Xxxxxx Xxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx, President
Fax: 000-000-0000
J.Headings. The headings in this Agreement are intended
solely for convenience of reference. They shall be given no effect in the
,construction or interpretation of this Agreement.
K. Severability. The invalidity or unenforceability of
any provision of this
Agreement shall not impair the validity or enforceability of any other
provision.
In Witness Whereof, the parties have executed this Agreement as of the date
first above written.
Attest: xxxxxxxx.xxx
By: /s/ Xxxxxxx Xxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------- ---------------------
Secretary Xxxxxx Xxxxxx, President
[Corporate Seal}
Attest: Gulf Atlantic Publishing, Inc
By: By: /s/Xxxxxxx Xxxxxxxx
---------------- --------------------
Secretary Xxxxxxx Dotzaur, President
[Corporate Seal}
EXHIBIT A
Advertising and Promotional Services
The services to be provided are as follows:
A. A Four-Color Financial Sentinel - Featured advertorial mailing of
300,000, (for a total of three (3) issues) will be created of which a two (2)
page advertorial will be dedicated to the Client.
B. A Four-Color Project "Z" Magazine - Featured advertorial mailing
of 100,000 will be created of which a 100,000 four (4) page advertorial will
be dedicated to the Client.
C. Any other mutually agreed to promotional AD campaign in writing.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement regarding the service to be provided by GAP under the
Agreement.
Xxxxxxxx.xxx
By:/s/Xxxxxx X Xxxxxx, CEO/Pres
----------------------------
, President
Gulf Atlantic Publishing,Inc.
By:/s/Xxxxxxx Xxxxxxxx
----------------------------
Xxxxxxx Xxxxxxxx, President
EXHIBIT B
Client hereby designates the following person or persons to act on its behalf
for the purposes set forth in Section 2 of the Agreement.
---------------------------- -----------------------------
DIRECTOR (PLEASE SIGN) DIRECTOR (PLEASE PRINT)
/s/Xxxxxx X. Xxxxxx /p/Xxxxxx X Xxxxxx
---------------------------- -----------------------------
PRESIDENT (PLEASE SIGN) PRESIDENT (PLEASE PRINT)
---------------------------- -----------------------------
VICE PRESIDENT (PLEASE SIGN) VICE PRESIDENT (PLEASE PRINT)
EXHIBIT C
COMPENSATION
1. Client agrees to pay to GAP Seventy-five Thousand and 00/100
Dollars ($75,000.00) in cash on execution and delivery of the Agreement or, at
the option of Client, to issue to GAP 67,000 shares of Restricted Common Stock
in Client (the "Shares"), which Shares shall be duly and validly issued, fully
paid and nonassessable and shall not be issued in violation of any preemptive
right of any stockholders of client. The Shares shall be issued in compliance
with the exemption from the registration requirements of the Securities Act of
1933 (the "Act") provided by Section 4(2) of the Act and/or pursuant to Rules
505 or 506 of the General Rules and Regulation under the Securities Act of
1933.
2. Concurrently with the payment of cash or the issuance of the
Shares, Client will execute and deliver the Registration Rights Agreement
attached hereto as Exhibit E under which the Client agrees to register the
Shares for sale in compliance with the Act as therein provided and to comply
with all conditions necessary or required to enable the Shares to be sold
pursuant to Rule 144 of the General Rules and Regulation under the Securities
Act of 1933.
3. The Shares, if any, to be issued to GAP shall be approved for
issuance in accordance with the rules and regulations of any stock exchange on
which the Shares are listed for trading or by the NASDAQ if the shares are
listed for trading thereon and shall be issued in compliance with all
appropriate federal or state governmental rules and regulations.
4. Client acknowledges that the consideration to be paid to GAP shall
be fully earned on the date that GAP commences providing services under the
Agreement. regardless of whether the Agreement is terminated as provided in
the Agreement prior to completion of all services.
5. Client agrees to pay or reimburse GAP for all expenses arising out
of or related to the provision of services by GAP under the Agreement to the
extent provided in the Agreement and/or in Exhibit A thereto.
The parties hereto by signing this Exhibit in the space provided below signify
their agreement to the compensation provisions contained herein.
Xxxxxxxx.xxx
By:/s/Xxxxxx X Xxxxxx
------------------
Xxxxxx Xxxxxx, President .
GULF ATLANTIC PUBLISHING, INC.
By:/s/Xxxxxxx Xxxxxxxx
-------------------
Xxxxxxx Xxxxxxxx, President
EXHIBIT D
INDEMNIFICATION
This Indemnification Agreement constitutes part of the Gulf Atlantic
Publishing, Inc. (the Agreement) dated the 21st day of April, 2000, between
Client (as defined in the Agreement) and GAP.
Client acknowledges and agrees that if~ in connection with the services or
matters that are the subject of or arise out of such Agreement, GAP becomes
involved (whether or not as a named party) in any action, claim or legal
proceeding (including any governmental inquiry or investigation), Client
agrees to reimburse GAP for its reasonable legal fees, disbursements of
counsel and other expenses (including the cost of investigation and
preparation) as they are incurred by GAP. Client also agrees to indemnify and
hold GAP harmless against any losses, claims, damages or liabilities, joint or
several, as incurred, to which GAP may become subject in connection with the
services or matters which are the subject of or arise out of the Agreement;
provided, however, that Client shall not be liable under the foregoing
indemnity in respect of any loss, claim, damage or liability to the extent
that a court having jurisdiction shall have determined by a final judgment
that such loss, claim, damage or liability is a consequence of intentional
fraudulent acts committed by GAP without the knowledge and/or consent of
Client. In the event that the foregoing indemnity is unavailable by operation
of law, then Client shall contribute to amounts paid or payable by GAP in
respect of such losses, claims, damages and liabilities in the proportion that
Client's interest bears to GAP's interest in the matters contemplated by the
Agreement. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law, or otherwise, then Client shall
contribute to such amount paid or payable by GAP in such proportion as is
appropriate to reflect not only such relative interests but also the relative
fault of Client on the one hand and GAP on the other hand in connection with
the matters as to which such losses, claims, damages or liabilities relate and
other equitable considerations.
Promptly after GAP's receipt of notice of the commencement of any action or of
any claim, GAP will, if a claim in respect thereof is to be made against
Client-under this Indemnity Agreement, notify Client of the commencement
thereof. In case any such action or claim is brought against GAP, Client will
be entitled to participate therein and, to the extent that Client may wish, to
assume the defense thereof, with counsel satisfactory to GAP. After notice
from Client to GAP of Client's election to so assume the defense thereof,
Client will not be liable to GAP for indemnification as provided in the
preceding paragraph for any legal fees, disbursements of counsel or other
expenses subsequently incurred by GAP in connection with the defense thereof
other than reasonable costs of investigation; provided that GAP shall have the
right to employ separate counsel if, in the reasonable judgment of GAP's
counsel, it is advisable for GAP to be represented by separate counsel or if
in the reasonable judgment of GAP's counsel, Client is not vigorously and
actively defending against any such claim or claims, and in either such event
the reasonable legal fees and disbursements of such separate counsel shall be
paid by Client.
The foregoing agreements shall apply to any modification of the
Agreement, shall remain in full force and effect following the completion or
termination of GAP's engagement under the Agreement and shall be in addition
to any rights that GAP may have at common law or otherwise. The agreements in
this Indemnification Agreement shall extend to and inure to the benefit of
each person, if any, who may be deemed to control GAP, be controlled by GAP or
be under common control with GAP and to GAP's; and to each such other person's
respective affiliates, directors, officers, employees and agents. This
Indemnification Agreement shall be binding on any successor of Client.
Client represents that the Indemnification Agreement contained herein is
the legal, valid, binding and enforceable obligation of Client, enforceable
against Client according to its terms.
This Indemnification Agreement shall be governed by, and construed in
accordance with, the laws of the State of Florida without regard to principles
of conflicts of law, and the forum for resolution of legal and interpretative
issues shall be the Federal District courts in the State of Florida.
The parties hereto by signing this Exhibit in the space provided below
signify their agreement to the indemnification provisions contained herein.
Thatlook. com
By:/s/Xxxxxx X. Xxxxxx
-------------------
Xxxxxx Xxxxxx, President
Gulf Atlantic Publishing Inc.
.
By:/s/Xxxxxxx Xxxxxxxx
-------------------
Xxxxxxx Xxxxxxxx,
President
EXHIBIT E
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Registration Agreement") is
made and entered into as of 4-21,2000 by and between Gulf Atlantic Publishing,
Inc., a Florida corporation (GAP), and Xxxxxxxx.xxx, a Pennsylvania
corporation (the Client).
WHEREAS, GAP concurrently with the execution of this Registration
Agreement is acquiring shares of the Client's common stock, par value $ per
share ("Common Stock") and/or options to purchase shares of Common Stock; and
WHEREAS, as a condition to such acquisition, the parties are willing to
enter into the agreements contained herein.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Definitions
"Affiliate" means, with respect to any Person, any other Person which,
directly or indirectly, controls, is controlled by or is under common control
with such Person.
"Agreement" means the Public Relations and Advertising Agreement dated as
of the date of this Registration Agreement between GAP and Client.
"Client" is defined in the Preamble to this Registration Agreement.
"Common Stock" is defined in the Recitals to this Registration Agreement.
"GAP" is defined in the Preamble to this Registration Agreement.
"Holder" is defined in Section 2.1 hereof.
"Lock-Up Period" is defined in Section 2.1 hereof.
"Options" mean the Options issuable, in certain circumstances, pursuant to
the Agreement, which are exercisable for Common Stock.
"Other Holders" is defined in Section 4.3 hereof.
"Permitted Transfer" is defined in Section 2.2 hereof.
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and government or any
department or agency thereof.
"Piggyback Notice" is defined in Section 4.1 hereof.
"Piggyback Registration" is defined in Section 4.1 hereof.
"Registrable Securities" means (i) the Common Stock issued to GAP
pursuant to the Agreement, (ii) any. Common Stock issued to GAP pursuant to
the exercise of Options, and (iii) any securities issued or issuable with
respect to the Common Stock referred to in clauses (i) or (ii) by way of
replacement, share dividend, share split or in connection with a combination
of shares, recapitalization, merger, consolidation or other reorganization.
"Registration Agreement" is defined in the Preamble to this Registration
Agreement.
"Registration Expenses" is defined in Section 6.1 hereof.
"Restricted Securities" is defined in Section 2.1 hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act"means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Transfer"is defined in Section 2.1 hereof.
Section 2. Restrictions on Transfer
2.1 Lock-Up Period. Without the express prior written consent of the
Client, GAP agrees that, except as set forth in Section 2.2 below, it
will-not, directly or indirectly, offer, sell, contract to sell or otherwise
dispose of (or announce any offer, sale, contract of sale or other disposition
of) ("Transfer") any Registrable Securities or Options (collectively,
"Restricted Securities") prior to the first anniversary following the date of
this Registration Agreement.
2.2 Permitted Transfers. The restrictions contained in this Section 2
will not apply with respect to any of the following transactions (each, a
"Permitted Transfer"):
2.2.1 a natural person may Transfer Restricted Securities to his or her
spouse, siblings, parents or any natural or adopted children or other
descendants or to any personal trust in which such family members or such
transferee retains the entire beneficial interest
2.2.2 GAP may (A) Transfer Restricted Securities to one or more other
entities that are wholly owned and controlled, legally and beneficially, by
GAP or an Affiliate, or (B) Transfer Restricted Securities by distributing
such Restricted Securities in a liquidation, winding up or otherwise without
consideration to the equity owners of such corporation, partnership or
business entity or to any other corporation, partnership or business entity
that is wholly owned by such equity owners; or (C) Transfer Restricted
Securities to a director, officer or key employee of GAP or an Affiliate;
2.2.3 a transferee acquiring Restricted Securities in a Permitted
Transfer may Transfer Restricted Securities on his or her death or mental
incapacity to such Person's estate, executor, administrator or personal
representative or to such Person's beneficiaries pursuant to a devise or
bequest or by the laws of descent and distribution; or
2.2.4 GAP or any transferee acquiring Restricted Securities in a
Permitted Transfer may Transfer Restricted Securities pursuant to an effective
Registration Statement as provided herein or pursuant to an exemption from the
registration requirements of the Securities Act.
If any Person Transfers Restricted Securities as described in this Section
2.2, such Restricted Securities shall remain subject to this Registration
Agreement and, as a condition of the validity of such Transfer, the transferee
shall be required to execute and deliver a counterpart of this Registration
Agreement. Thereafter, such transferee shall be deemed to be a Holder for
purposes of this Registration Agreement.
2.3 Rights of Subsequent Holder. Subject to the foregoing restrictions,
the Client and GAP hereby agree that any subsequent holder of Registrable
Securities shall be entitled to all benefits hereunder as a holder of such
securities.
Section 3. Demands for Registration.
3. omitted
3.2 omitted
3.2.2 omitted
3.2.3 omitted
3.2.4 omitted
3.2.5 omitted
3.2.6 omitted
3.3 omitted
Section 4. Piggyback Registrations
4.1 Right to Piggback. If the Client proposes to undertake an offering
ofshares of Common Stock for its account or for the account of other
stockholders and the registration form to be used for 'such offering may be
used for the registration of Registrable Securities (a "Piggyback
Registration"), each such time the Client will give prompt written notice to
all Holders of Registrable Securities of its intention to effect such a
registration (each, a "Piggyback Notice") and, subject to Sections 4.3 and 4.4
hereof, the Client will use its best efforts to cause to be included in such
registration all Registrable Securities with respect to which the Client has
received written requests for inclusion therein within 20 days after the date
of sending the Piggyback Notice.
4.2 Priority on Primary Registrations. If a Piggyback Registration is an
underwritten primary registration on behalf of the Client, and the managing
underwriters advise the Client in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
that can be sold in an orderly manner within a price range acceptable to the
Client, the .Client will include in such registration (a) first, the
securities the Client proposes to sell and (b) second, the Registrable
Securities requested to be included in such registration and any other
securities requested to be included:in such registration that are held by
Persons other than the Holders of Registrable Securities pursuant to
registration rights, pro rata among the holders of Registrable Securities and
the holders of such other securities requesting such registration on the basis
of the number of shares of such securities owned by each such holder.
4.3 Priority on Secondary. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Client's
securities other than the Holders of Registrable Securities (the "Other
Holders"), and the managing underwriters advise the Client in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in an orderly manner in such
offering within a price range acceptable to the Other Holders requesting such
registration, the Client will include in such registration (a) first, the
securities requested to be included therein by the Other Holders requesting
such registration and (b) second, the Registrable Securities requested to be
included in such registration hereunder, pro rata among the Holders of
Registrable Securities requesting such registration on the basis of the number
of shares of such securities owned by each such Holder.
4.4 Selection of Underwriters4. In the case of an underwritten Piggyback
Registration, the Client will have the right to select the investment
banker(s) and manager(s) to administer the offering.
Section 5. Registration Procedures Section. Whenever the Holders of
Registrable Securities have requested that any Registrable Securities be sold
pursuant to this Registration Agreement, the Client will use its reasonable
best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof, and
pursuant thereto the Client will as expeditiously as possible:
5.1.1 Registration Statement. Prepare and file with the SEC a
registration statement with respect to such Registrable Securities and use its
reasonable best efforts to cause such registration statement to become
effective.
5.1.2 Amendments and Supplements. Promptly prepare and file with the SEC
such amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep such
registration statement effective for the period required by the intended
method of disposition and the terms of this Registration Agreement and comply
with the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement.
5.1.3 Provision of Copies. Promptly furnish to each seller of Registrable
Securities the number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such
seller may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller.
5.1.4 Blue Sky Laws. Use its reasonable best efforts to register or
qualify such Registrable Securities under the securities or blue sky laws of
such jurisdictions as any seller reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller, provided, that the Client will not be
required to (a) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 5.1.4, (b)
subject itself to taxation in any such jurisdiction or (c) consent to general
service of process in any such jurisdiction.
5.1.5 Anti-fraud Rules.. Promptly notify each seller of such Registrable
Securities 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 contains an untrue
statement of a material fact or omits any material fact necessary to make the
statements therein not misleading, and in such event, at the request of any
such seller, the Client will promptly prepare a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading, provided, that the Client will not take any
action which causes the prospectus included in such registration statement to
contain an untrue statement of material fact or omit any material fact
necessary to make the statements therein not misleading, except as permitted
by Section 5.5.
5.1.6 Securities Exchange Listings.. Use its reasonable best efforts to
cause all such Registrable Securities to be listed on each securities exchange
on which securities of the same class issued by the Client are then listed and
use its reasonable best efforts to qualify such Registrable Securities for
trading on each system on which securities of the same class issued by the
Client are then qualified.
5.1.7 Underwriting Agreements. Enter into such customary agreements
(including underwriting agreements in customary form) and take all such other
actions as the holders of a majority of the shares of Registrable Securities
being sold or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities.
5.1.8 Due Diligence. Make available for inspection by any underwriter
participating in any disposition pursuant to such registration statement and
any attorney, accountant or other agent retained by any such underwriter, all
financial and other records, pertinent corporate documents and properties of
the Client, and cause the Client's officers, directors, employees and
independent accountants to supply all information reasonably requested by any
such underwriter, attorney, accountant or agent in connection with such
registration statement.
5.1.9 Earning Statement. Otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earning statement
covering the period of at least twelve months beginning with the first day of
the Client's first full calendar quarter after the effective date of the
registration statement, which earning statement shall satisfy the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder.
5.1.10 Deemed Underwriters or Controlling Persons. Permit any Holder of
Registrable Securities which Holder, in such Holder's reasonable judgment,
might be deemed to be an underwriter or a controlling person of the Client, to
participate in the preparation of such registration or comparable statement
and to require the insertion-therein of material in form and substance
satisfactory to such Holder and- to the Client and furnished to the Client in
writing, which in the reasonable judgment of such Holder and its counsel
should be included.
5.1.11 Management Availability.. In connection with underwritten
offerings, make available appropriate management personnel for participation
in the preparation and drafting of such registration or comparable statement,
for due diligence meetings and for "road show" meetings.
5.1.12 Stop Orders. Promptly notify Holders of the Registrable
Securities of the threat of issuance by the SEC of any stop order suspending
the effectiveness of the registration statement or the initiation of any
proceeding for that purpose, and make every reasonable effort to prevent the
entry of any order suspending the effectiveness of the registration statement.
In the event of the issuance of any stop order suspending the effectiveness of
a registration statement, or of any order suspending or preventing the use of
any related prospectus or suspending the qualification of any Registrable
Securities included in such registration statement for sale in any
jurisdiction, the Client will use its reasonable best efforts promptly to
obtain the withdrawal of such order.
5.1.13 Opinions. At each closing of an underwritten offering, request
opinions of counsel to the Client and updates thereof (which opinions and
updates shall be reasonably satisfactory to the underwriters of the
Registrable Securities being sold) addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Holders or their
counsel.
5.1.14 Comfort Letter.. Obtain a cold comfort letter and related bring
down letters from the Client's independent public accountants addressed to the
selling Holders of Registrable Securities in customary form and covering such
matters of the type customarily covered by cold comfort letters as the Holders
of a majority of the Registrable Securities being sold reasonably request.
5.2 Further Information. The Client may require each Holder of
Registrable Securities to furnish to the Client in writing such information
regarding the proposed distribution by such Holder of such Registrable
Securities as the Client may from time to time reasonably request.
5.3 Notice to Suspend Offers and Sales. Each Investor severally agrees
that, upon receipt of any notice from the Client of the happening of any event
of the kind described in Sections 5.1.5 or 5.1.12 hereof, such Investor will
forthwith discontinue disposition of shares of Common Stock pursuant to a
registration hereunder until receipt of the copies of an appropriate
supplement or amendment to the prospectus under Section 5.1.5 or until the
withdrawal of such order under Section 5.1.12.
5.4 Reference to Holders. If any such registration or comparable
statement refers to any Holder by name or otherwise as the holder of any
securities of the Client and if, in the Holder's reasonable judgment, such
Holder is or might be deemed to be a controlling person of the Client, such
Holder shall have the right to require (a) the insertion therein of language
in form and substance satisfactory to such Holder and the Client and presented
to the Client in writing, to the effect that the holding by such Holder of
such securities is not to be construed as a recommendation by such Holder of
the investment quality of the Client's securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Client, or (b) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or
any similar Federal statute then in force, the deletion of the reference to
such Holder; provided that with respect to this clause (b) such Holder shall
furnish to the Client an opinion of counsel to such effect, which opinion and
counsel shall be reasonably satisfactory to the Client.
5.5 omitted
6.1 Expenses Borne by Client. Except as specifically otherwise provided
in Section 6.2 hereof, the Client will be responsible for payment of all
expenses incident to any registration hereunder, including, without
limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, road show expenses, advertising expenses and fees and disbursements
of counsel for the Client and all independent certified public accountants and
other Persons retained by the Client in connection with such registration (all
such expenses borne by the Client being herein called the "Registration
Expenses").
6.2 Expenses Borne by Selling Securityholders.. The selling
securityholders will be responsible for payment of their own legal fees (if
they retain legal counsel separate from that of the Client), underwriting fees
and brokerage discounts, commissions and other sales expenses incident to any
registration hereunder, with any such expenses which are common to the selling
securityholders divided among such securityholders (including the Client and
holders of the Client's securities other than Registrable Securities, to the
extent that securities are being registered on behalf of such Persons) pro
rata on the basis of the dumber of shares being registered on behalf of each
such securityholder, or as such securityholders may otherwise agree.
Section 7. Indemnification Section.
7.1 Indemnification by Client.. The Client agrees to indemnify, to the
fullest extent permitted by law, each Holder of Registrable Securities and
each Person who controls (within the meaning of the Securities Act) such
Holder against all losses, claims, damages, liabilities and expenses in
connection with defending against any such losses, claims, damages and
liabilities or in connection with any investigation or inquiry, in each case
caused by or based on any untrue or alleged untrue statement of material fact
contained in any registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading or arise out of any violation by the
Client of any rules or regulation promulgated under the Securities Act
applicable to the Client and relating to action or inaction required of the
Client in connection with such registration, except insofar as the same are
(i) contained in any information furnished in writing to the Client by such
Holder expressly for use therein, (ii) caused by such Holder's failure to
deliver a copy of the registration statement or prospectus or any amendments
or supplements thereto, or (iii) caused by such Holder's failure to
discontinue disposition of shares after receiving notice from the Client
pursuant to Section 5.3 hereof. In connection with an underwritten offering,
the Client will indemnify such underwriters, their officers and directors and
each Person who controls .(within the meaning of the Securities Act) such
underwriters at least to the same extent as provided above with respect to the
indemnification of the Holders of Registrable Securities.
7.2 Indemnification by Holder. In connection with any registration
statement in which a Holder of Registrable Securities is participating, each
such Holder will furnish to the Client in writing such information as the
Client reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, will indemnify
the Client, its directors and officers and each Person who controls (within
the meaning of the Securities Act) the Client against any losses, claims,
damages, liabilities and expenses resulting from any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto or
any omission or alleged omission of a material fact requited to be stated
therein or necessary to make the statements therein not misleading, but only
to the extent that such untrue statement or omission is contained in any
information so furnished in writing by such Holder expressly for use in
connection with such registration; provided that the obligation to indemnify
will be individual to each Holder and will be limited to the net amount of
proceeds received by such Holder from the sale of Registrable Securities
pursuant to such registration statement. In connection with an underwritten
offering, each such Holder will indemnify such underwriters, their officers
and directors and each Person who controls (within the meaning of the
Securities Act) such underwriters at least to the same extent as provided
above with respect to the indemnification of the Client.
7.3 Assumption of Defense by Indemnifying Party. Any Person entitled to
indemnification hereunder will (a) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld). An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim will
not be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
7.4 Binding Effect. The indemnification provided for under this
Registration Agreement 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 securities. The Client also agrees to make such provisions, as are
reasonably requested by any indemnified party, for contribution to such party
in the event the Client's indemnification is unavailable for any reason. Each
Holder of Registrable Securities also agrees to make such provisions, as are
reasonably requested by any indemnified party, for contribution to such party
in the event such Holder's indemnification is unavailable for any reason.
Section 8. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
Section 9. Miscellaneous.
9.1 No Inconsistent Agreements. The Client will not hereafter enter into
any agreement with respect to its securities which violates the rights granted
to the Holders of Registrable Securities in this Registration Agreement.
9.2 Remedies. Any Person having rights under any provision of this
Registration Agreement will be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any provision of this
Registration Agreement and to exercise all other rights granted by law. The
parties hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Registration Agreement and
that any party may in its sole discretion apply to any court of law or equity
of competent jurisdiction (without posting any bond or other security) for
specific performance and for other injunctive relief in order to enforce or
prevent violation of the provisions of this Registration Agreement.
9.3 Term. Except for the provisions of Section 7 or as specifically
otherwise provided herein, the provisions of this Registration Agreement shall
apply until such time as all Registrable Securities have ceased to be
Registrable Securities hereunder but in no event later than three years from
the date of this Registration Agreement.
9.4 Amendments and Waivers. Except as otherwise specifically provided
herein, this Registration Agreement may be amended or waived only upon the
prior written consent of the Client and of the Holders of a majority of the
then outstanding shares of Registrable Securities.
9.5 Successors and Assigns. Subject to Section 2 hereof, all covenants
and agreements in this Registration Agreement by or on behalf of any of the
parties hereto will bind and inure to the benefit of (i) the respective
successors and assigns of ~the parties hereto whether so expressed or not and
(ii) the persons referred to in clause (iv) of the definition of Registrable
Securities. In addition, whether or not any express assignment has been made
but subject in any case to Section 2 hereof, the provisions of this
Registration Agreement which are for the benefit of GAP or Holders of
Registrable Securities are also for the benefit of, and enforceable by, any
subsequent holder of such securities so long as such securities continue to be
restricted securities, as that term is defined in Securities Act Rule 144.
9.6 Severabilitv. Whenever possible, each provision of this Registration
Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Registration Agreement is
held to be prohibited by or invalid under applicable law, such provision will
be ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Registration Agreement.
9.7 Counterparts. This Registration Agreement may be executed
simultaneously in multiple counterparts, any one of which need not contain the
signatures of more than one party, but all such counterparts taken together
will constitute one and the same Registration Agreement.
9.8 Descriptive Headings. The descriptive headings of this Registration
Agreement are inserted for convenience only and do not constitute a part of
this Registration Agreement.
9.9 Governing. Law. All questions concerning the construction, validity
and interpretation of this Registration Agreement will be governed by and
construed in accordance with the domestic laws of the State of Florida,
without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of Florida or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Florida.
9.10 Entire Agreement.. This Registration Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto with respect of the subject matter contained herein. This Registration
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
9.11 Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Registration
Agreement shall be in writing and shall be deemed to have been.given when
delivered personally to the recipient, sent to the recipient by facsimile
transmission, sent to the recipient by reputable express courier service
(charges prepaid) or three business days after being mailed to the recipient
by certified or registered mail, return receipt requested and postage prepaid.
Such notices, demands and other communications will be sent to each Holder at
the address indicated on the records of the Client and to the Client at the
address set forth in the Agreement or to such other address or to the
attention of such other person as the recipient party has specified by prior
written notice to the sending party.
9.12 Confidentiality. The Client shall hold in strict confidence and
shall not disclose information with respect to sales of Common Stock by any
Holder, including the fact of such sales, the amount of such sales and the
timing of such sales, except as such information shall become public without
violation of this Section 9.12, as may be required by applicable law, rules or
regulations or with the express written consent of such Investor.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Agreement as of the date first above written.
Thatlook. com
By:/s/ Xxxxxx X. Xxxxxx
--------------------
Xxxxxx Xxxxxx, President
GULF ATLANTIC PUBLISHING, INC.
By:/s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
