Exhibit 10.12
AMERICAN LEISURE HOLDINGS, INC.
A NEVADA CORPORATION
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT, dated as of December 28, 2005 (the
"AGREEMENT"), is entered into by and among American Leisure Holdings, Inc., a
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Nevada corporation (the "COMPANY"), and the holders (the "INVESTORS") of the
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Company's Warrants set forth on the signature page hereof. Capitalized terms not
defined herein shall have the meanings ascribed to them in the Credit Agreement
(as hereinafter defined).
WHEREAS, simultaneously with the execution and delivery of this Agreement,
pursuant to the Credit Agreement dated as of December 28, 2005 between the
Company's subsidiary TIERRA DEL SOL RESORT, INC., and STANFORD INTERNATIONAL
BANK LTD., an Antiguan banking corporation (the "CREDIT AGREEMENT") the Company
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is required to issue to the Investors Warrants to purchase up to 462,000 shares
of the Company's common stock, par value $.001 (the "Common Stock"); and
WHEREAS, the Company desires to grant to the Investors the registration
rights set forth herein with respect to the shares of Common Stock issuable upon
exercise of the Warrants (the "WARRANT SHARES"), the shares of Common Stock
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issuable upon the exercise of the warrants issuable in the event of a
registration default pursuant to Section 4(e) (the "DEFAULT WARRANT SHARES") and
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the shares of Common Stock issued as a dividend or other distribution with
respect to the Warrant Shares or Default Warrant Shares (the "DISTRIBUTION
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SHARES") (all of the Warrant Shares, the Default Warrant Shares and the
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Distribution Shares, collectively and interchangeably, are referred to herein as
the "SECURITIES").
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NOW, THEREFORE, the parties hereto mutually agree as follows:
1. CERTAIN DEFINITIONS
As used herein the term "REGISTRABLE SECURITY" means the Warrant Shares,
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Default Warrant Shares and the Distribution Shares, until (i) the Registration
Statement (as defined below) has been declared effective by the Securities and
Exchange Commission (the "COMMISSION"), and all Securities have been disposed of
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pursuant to the Registration Statement, (ii) all Securities have been sold under
circumstances under which all of the applicable conditions of Rule 144 ("RULE
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144") (or any similar provision then in force) under the Securities Act of 1933,
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as amended (the "SECURITIES ACT") are met, or (iii) such time as, in the opinion
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of counsel to the Company reasonably satisfactory to the Investors and upon
delivery to the Investors of such executed opinion, all Securities may be sold
without any time, volume or manner limitations pursuant to Rule 144 (or any
similar provision then in effect). In the event of any merger, reorganization,
consolidation, recapitalization or other change in corporate structure affecting
the Common Stock, such adjustment shall be deemed to be made in the definition
of "Registrable Security" as is appropriate in order to prevent any dilution or
enlargement of the rights granted pursuant to this Agreement. As used herein the
term "HOLDER" means any Person owning or having the right to acquire Registrable
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Securities or any assignee thereof in accordance with Section 10 hereof. As used
herein "TRADING DAY" shall mean any business day on which the market on which
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the Common Stock trades is open for business.
2. RESTRICTIONS ON TRANSFER
Each of the Investors acknowledges and understands that prior to the
registration of the Securities as provided herein, the Securities are
"restricted securities" as defined in Rule 144. Each of the Investors
understands that no disposition or transfer of the Securities may be made by any
of the Investors in the absence of (i) an opinion of counsel to such Investor,
in form and substance reasonably satisfactory to the Company, that such transfer
may be made without registration under the Securities Act or (ii) such
registration.
3. COMPLIANCE WITH REPORTING REQUIREMENTS
With a view to making available to the Investors the benefits of Rule 144
or any other similar rule or regulation of the Commission that may at any time
permit the holders of the Securities to sell securities of the Company to the
public pursuant to Rule 144, the Company agrees to:
(a) comply with the provisions of paragraph (c)(1) of Rule 144;
(b) file with the Commission in a timely manner all reports and other
documents required to be filed with the Commission pursuant to Section 13
or 15(d) under the Securities Exchange Act of 1934 (the "EXCHANGE ACT") by
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companies subject to either of such sections, irrespective of whether the
Company is then subject to such reporting requirements; and
(c) Upon request by any Holder or the Company's transfer agent, the
Company shall provide an opinion of counsel, which opinion shall be
reasonably acceptable to the Holder and/or the Company's transfer agent
that the such Holder has complied with the applicable conditions of Rule
144 (or any similar provision then in force).
4. REGISTRATION RIGHTS WITH RESPECT TO THE REGISTRABLE SECURITIES
(a) The Company agrees that it will prepare and file with the
Commission, (i) within 180 calendar days from the date of demand, a
registration statement (on Form S-1 or SB-2, or other appropriate
registration statement form) under the Securities Act (the "REGISTRATION
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STATEMENT"), and (ii) if at least 20% of the Registrable Securities covered
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under the Registration Statement filed under (i) remain unsold during the
effective period of such Registration Statement, then within 20 days
following receipt of a written notice from the holders representing a
majority of such unsold Registrable Securities, another Registration
Statement so as to permit a resale of the Securities under the Securities
Act by the Holders as selling stockholders and not as underwriters.
The Company shall use diligent best efforts to cause the Registration
Statement to become effective as soon as practical following the filing of
the Registration Statement. The Company will notify the Holders and its
transfer agent of the effectiveness of the Registration Statement within
one Trading Day of such event.
(b) The Company will maintain the Registration Statement or
post-effective amendment filed under this Section 4 effective under the
Securities Act until the earlier of (i) the date that none of the
Registrable Securities covered by such Registration Statement are or may
become issued and outstanding, (ii) the date that all of the Registrable
Securities have been sold pursuant to such Registration Statement, (iii)
the date all the Holders receive an opinion of counsel to the Company,
which counsel shall be reasonably acceptable to the Holders, that the
Registrable Securities may be sold under the provisions of Rule 144 without
limitation as to volume, (iv) all Registrable Securities have been
otherwise transferred to persons who may trade such shares without
restriction under the Securities Act, and the Company has delivered a new
certificate or other evidence of ownership for such securities not bearing
a restrictive legend, or (v) two years from the Effective Date.
(c) All fees, disbursements and out-of-pocket expenses and costs
incurred by the Company in connection with the preparation and filing of
the Registration Statement under this Section 4 and in complying with
applicable securities and blue sky laws (including, without limitation, all
attorneys' fees of the Company) shall be borne by the Company. The Company
shall also reimburse the fees and expenses of counsel to the Holders
incurred in connection with such counsel's review of the Registration
Statement and advice concerning the Registration Statement and its filing
subject to a cap of $15,000. The Holders shall bear the cost of
underwriting and/or brokerage discounts, fees and commissions, if any,
applicable to the Registrable Securities being registered. The Holders and
their counsel shall have a reasonable period, not to exceed 15 Trading
Days, to review the proposed Registration Statement or any amendment
thereto, prior to filing with the Commission, and the Company shall provide
the Holders with copies of any comment letters received from the Commission
with respect thereto within two Trading Days of receipt thereof. The
Company shall qualify any of the Registrable Securities for sale in such
states as the Holders reasonably designate and shall furnish
indemnification in the manner provided in Section 7 hereof. However, the
Company shall not be required to qualify in any state which will require an
escrow or other restriction relating to the Company and/or the Holders, or
which will require the Company to qualify to do business in such state or
require the Company to file therein any general consent to service of
process. The Company at its expense will supply each of the Investors with
copies of the applicable Registration Statement and the prospectus included
therein and other related documents in such quantities as may be reasonably
requested by any of the Investors.
(d) The Company shall not be required by this Section 4 to include the
Registrable Securities in any Registration Statement which is to be filed
if, in the opinion of counsel for both the Holders and the Company (or,
should they not agree, in the opinion of another counsel experienced in
securities law matters acceptable to counsel for the Holders and the
Company) the proposed offering or other transfer as to which such
registration is requested is exempt from applicable federal and state
securities laws and would result in all purchasers or transferees obtaining
securities which are not "restricted securities," as defined in Rule 144.
(e) In the event that (i) the Registration Statement is not filed by
the Company in a timely manner as set forth in Section 4(a); or (ii) such
Registration Statement is not maintained as effective by the Company for
the period set forth in Section 4(b) above (each a "REGISTRATION DEFAULT"),
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then the Company will issue to each of the Holders as of the first day of
such Registration Default and for every consecutive quarter in which such
Registration Default is occurring, as liquidated damages, and not as a
penalty, warrants to purchase 10% of the Warrants originally issued to the
Holders pursuant to the Credit Agreement upon the same terms and conditions
therein stated ("DEFAULT WARRANTS") until such corresponding Registration
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Default no longer exists ("LIQUIDATED DAMAGES"); provided, however, that
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the issuance of such Default Warrants shall not relieve the Company from
its obligations to register the Registrable Securities pursuant to this
Section.
If the Company does not issue the Default Warrants to the Holders as
set forth above, the Company will pay any Holder's reasonable costs of any
action in a court of law to cause compliance with this Section 4(e),
including reasonable attorneys' fees, in addition to the Default Warrants.
The registration of the Registrable Securities pursuant to this Section
shall not affect or limit a Holder's other rights or remedies as set forth
in this Agreement.
(f) The Company shall be precluded from including in any Registration
Statement which it is required to file pursuant to this Section 4 any other
securities apart from the Registrable Securities, without the prior written
consent of the Holders.
(g) If, at any time any Registrable Securities are not at the time
covered by any effective Registration Statement, the Company shall
determine to register under the Securities Act (including pursuant to a
demand of any stockholder of the Company exercising registration rights)
any of its shares of the Common Stock (other than in connection with a
merger or other business combination transaction or pursuant to Form (S-8),
it shall send to each Holder written notice of such determination and, if
within 20 days after receipt of such notice, such Holder shall so request
in writing, the Company shall its best efforts to include in such
registration statement all or any part of the Registrable Securities that
such Holder requests to be registered. Notwithstanding the foregoing, if,
in connection with any offering involving an underwriting of the Common
Stock to by issued by the Company, the managing underwriter shall impose a
limitation on the number of shares of the Common Stock included in any such
registration statement because, in such underwriter's judgment, such
limitation is necessary based on market conditions: (a) if the registration
statement is for a public offering of common stock on a "firm commitment"
basis with gross proceeds to the Company of at least $30,000,000 (a
"QUALIFIED PUBLIC OFFERING"), the Company may exclude, to the extent so
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advised by the underwriters, the Registrable Securities from the
underwriting; provided, however, that if the underwriters do not entirely
exclude the Registrable Securities from such Qualified Public Offering, the
Company shall be obligated to include in such registration statement, with
respect to the requesting Holder, only an amount of Registrable Securities
equal to the product of (i) the number of Registrable Securities that
remain available for registration after the underwriter's cutback and (ii)
such Holder's percentage of ownership of all the Registrable Securities
then outstanding (on an as-converted basis) (the "REGISTRABLE PERCENTAGE");
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and (b) if the registration statement is not for a Qualified Public
Offering, the Company shall be obligated to include in such registration
statement, with respect to the requesting Holder, only an amount of
Registrable Securities equal to the product of (i) the number of
Registrable Securities that remain available for registration after the
underwriter's cutback and (ii) such Holder's Registrable Percentage;
provided, however, that the aggregate value of the Registrable Securities
to be included in such registration may not be so reduced to less than 30%
of the total value of all securities included in such registration. If any
Holder disapproves of the terms of any underwriting referred to in this
paragraph, it may elect to withdraw therefrom by written notice to the
Company and the underwriter. No incidental right under this paragraph shall
be construed to limit any registration required under the other provisions
of this Agreement.
5. COOPERATION WITH COMPANY
Each Holder will cooperate with the Company in all respects in connection
with this Agreement, including timely supplying all information reasonably
requested by the Company (which shall include all information regarding such
Holder and proposed manner of sale of the Registrable Securities required to be
disclosed in any Registration Statement) and executing and returning all
documents reasonably requested in connection with the registration and sale of
the Registrable Securities and entering into and performing its obligations
under any underwriting agreement, if the offering is an underwritten offering,
in usual and customary form, with the managing underwriter or underwriters of
such underwritten offering. Nothing in this Agreement shall obligate any Holder
to consent to be named as an underwriter in any Registration Statement. The
obligation of the Company to register the Registrable Securities shall be
absolute and unconditional as to those Registrable Securities which the
Commission will permit to be registered without naming any Holder as
underwriters. Any delay or delays caused by a Holder by failure to cooperate as
required hereunder shall not constitute a Registration Default as to such
Holder.
6. REGISTRATION PROCEDURES
If and whenever the Company is required by any of the provisions of this
Agreement to effect the registration of any of the Registrable Securities under
the Securities Act, the Company shall (except as otherwise provided in this
Agreement), as expeditiously as possible, subject to the Holders' assistance and
cooperation as reasonably required with respect to each Registration Statement:
(a) prepare and file with the Commission such amendments and
supplements to the Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration
Statement effective and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all Registrable Securities
covered by such Registration Statement whenever any of the Holder shall
desire to sell or otherwise dispose of the same (including prospectus
supplements with respect to the sales of Registrable Securities from time
to time in connection with a registration statement pursuant to Rule 415
promulgated under the Securities Act) and (ii) take all lawful action such
that each of (A) the Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading and (B) the prospectus forming
part of the Registration Statement, and any amendment or supplement
thereto, does not at any time during the Registration Period include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(b) prior to the filing with the Commission of any Registration
Statement (including any amendments thereto) and the distribution or
delivery of any prospectus (including any supplements thereto), provide
draft copies thereof to the Holders as required by Section 4(c) and reflect
in such documents all such comments as the Holders (and their counsel)
reasonably may propose; (ii) furnish to each of the Holders such numbers of
copies of a prospectus including a preliminary prospectus or any amendment
or supplement to any prospectus, as applicable, in conformity with the
requirements of the Securities Act, and such other documents, as any of the
Holders may reasonably request in order to facilitate the public sale or
other disposition of the Registrable Securities owned by such Holder; and
(iii) provide to the Holders copies of any comments and communications from
the Commission relating to the Registration Statement, if lawful to do so;
(c) register and qualify the Registrable Securities covered by the
Registration Statement under such other securities or blue sky laws of such
jurisdictions as any of the Holders shall reasonably request (subject to
the limitations set forth in Section 4(c) above), and do any and all other
acts and things which may be necessary or advisable to enable such Holder
to consummate the public sale or other disposition in such jurisdiction of
the Registrable Securities owned by such Holder;
(d) list such Registrable Securities on the markets where the Common
Stock of the Company is listed as of the effective date of the Registration
Statement, if the listing of such Registrable Securities is then permitted
under the rules of such markets;
(e) notify the Holders at any time when a prospectus relating thereto
covered by the Registration Statement is required to be delivered under the
Securities Act, of the happening of any event of which it has knowledge as
a result of which the prospectus included in the Registration Statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances
then existing, and the Company shall prepare and file a curative amendment
under Section 6(a) as quickly as reasonably possible and during such
period, the Holders shall not make any sales of Registrable Securities
pursuant to the Registration Statement;
(f) after becoming aware of such event, notify each of the Holders who
holds Registrable Securities being sold (or, in the event of an
underwritten offering, the managing underwriters) of the issuance by the
Commission of any stop order or other suspension of the effectiveness of
the Registration Statement at the earliest possible time and take all
lawful action to effect the withdrawal, rescission or removal of such stop
order or other suspension;
(g) cooperate with the Holders to facilitate the timely preparation
and delivery of certificates for the Registrable Securities to be offered
pursuant to the Registration Statement and enable such certificates for the
Registrable Securities to be in such denominations or amounts, as the case
may be, as any of the Holders reasonably may request and registered in such
names as any of the Holders may request; and, within three Trading Days
after a Registration Statement which includes Registrable Securities is
declared effective by the Commission, deliver and cause legal counsel
selected by the Company to deliver to the transfer agent for the
Registrable Securities (with copies to the Holders) an appropriate
instruction and, to the extent necessary, an opinion of such counsel;
(h) take all such other lawful actions reasonably necessary to
expedite and facilitate the disposition by the Holders of their Registrable
Securities in accordance with the intended methods therefor provided in the
prospectus which are customary for issuers to perform under the
circumstances;
(i) in the event of an underwritten offering, promptly include or
incorporate in a prospectus supplement or post-effective amendment to the
Registration Statement such information as the managers reasonably agree
should be included therein and to which the Company does not reasonably
object and make all required filings of such prospectus supplement or
post-effective amendment as soon as practicable after it is notified of the
matters to be included or incorporated in such prospectus supplement or
post-effective amendment; and
(j) maintain a transfer agent and registrar for the Common Stock.
7. INDEMNIFICATION
(a) To the maximum extent permitted by law, the Company agrees to
indemnify and hold harmless each of the Holders, each person, if any, who
controls any of the Holders within the meaning of the Securities Act, and
each director, officer, shareholder, employee, agent, representative,
accountant or attorney of the foregoing (each of such indemnified parties,
a "DISTRIBUTING INVESTOR") against any losses, claims, damages or
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liabilities, joint or several (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense
and investigation and all reasonable attorneys' fees and expenses), to
which the Distributing Investor may become subject, under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, or any related final prospectus or amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided, however, that the Company will not be liable in any such case to
the extent, and only to the extent, that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement, preliminary prospectus, final prospectus or amendment or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company by the Distributing Investor, its
counsel, or affiliates, specifically for use in the preparation thereof or
(ii) by such Distributing Investor's failure to deliver to the purchaser a
copy of the most recent prospectus (including any amendments or supplements
thereto). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) To the maximum extent permitted by law, each Distributing Investor
agrees that it will indemnify and hold harmless the Company, and each
officer and director of the Company or person, if any, who controls the
Company within the meaning of the Securities Act, against any losses,
claims, damages or liabilities (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense
and investigation and all reasonable attorneys' fees and expenses) to which
the Company or any such officer, director or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, or any related final
prospectus or amendment or supplement thereto, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in such Registration Statement, final prospectus or amendment or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company by such Distributing Investor, its
counsel or affiliates, specifically for use in the preparation thereof.
This indemnity agreement will be in addition to any liability which the
Distributing Investor may otherwise have under this Agreement.
Notwithstanding anything to the contrary herein, the Distributing Investor
shall be liable under this Section 7(b) for only that amount as does not
exceed the net proceeds to such Distributing Investor as a result of the
sale of Registrable Securities pursuant to the Registration Statement.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action against such indemnified
party, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 7, notify the
indemnifying party in writing of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve the indemnifying party
from any liability which it may have to any indemnified party except to the
extent the failure of the indemnified party to provide such written
notification actually prejudices the ability of the indemnifying party to
defend such action. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate in, and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, assume the defense thereof, subject
to the provisions herein stated and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section 7 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation, unless the indemnifying party
shall not pursue the action to its final conclusion. The indemnified
parties shall have the right to employ one or more separate counsel in any
such action and to participate in the defense thereof, but the fees and
expenses of such counsel shall not be at the expense of the indemnifying
party if the indemnifying party has assumed the defense of the action with
counsel reasonably satisfactory to the indemnified party unless (i) the
employment of such counsel has been specifically authorized in writing by
the indemnifying party, or (ii) the named parties to any such action
(including any interpleaded parties) include both the indemnified party and
the indemnifying party and the indemnified party shall have been advised by
its counsel that there may be one or more legal defenses available to the
indemnifying party different from or in conflict with any legal defenses
which may be available to the indemnified party or any other indemnified
party (in which case the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable only for the reasonable fees and
expenses of one separate firm of attorneys for the indemnified party, which
firm shall be designated in writing by the indemnified party). No
settlement of any action against an indemnified party shall be made without
the prior written consent of the indemnified party, which consent shall not
be unreasonably withheld so long as such settlement includes a full release
of claims against the indemnified party.
All fees and expenses of the indemnified party (including reasonable
costs of defense and investigation in a manner not inconsistent with this
Section and all reasonable attorneys' fees and expenses) shall be paid to
the indemnified party, as incurred, within 10 Trading Days of written
notice thereof to the indemnifying party; provided, that the indemnifying
party may require such indemnified party to undertake to reimburse all such
fees and expenses to the extent it is finally judicially determined that
such indemnified party is not entitled to indemnification hereunder.
8. CONTRIBUTION
In order to provide for just and equitable contribution under the
Securities Act in any case in which (i) the indemnified party makes a claim for
indemnification pursuant to Section 7 hereof but is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding the fact
that the express provisions of Section 7 hereof provide for indemnification in
such case, or (ii) contribution under the Securities Act may be required on the
part of any indemnified party, then the Company and the applicable Distributing
Investor shall contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees and expenses), in either such
case (after contribution from others) on the basis of relative fault as well as
any other relevant equitable considerations. The relative fault 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 on the one hand
or the applicable Distributing Investor on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Distributing Investor
agree that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 8. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this Section 8 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. 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.
Notwithstanding any other provision of this Section 8, in no event shall
(i) any of the Distributing Investors be required to undertake liability to any
person under this Section 8 for any amounts in excess of the dollar amount of
the proceeds received by such Distributing Investor from the sale of such
Distributing Investor's Registrable Securities (after deducting any fees,
discounts and commissions applicable thereto) pursuant to any Registration
Statement under which such Registrable Securities are
registered under the Securities Act and (ii) any underwriter be required to
undertake liability to any person hereunder for any amounts in excess of the
aggregate discount, commission or other compensation payable to such underwriter
with respect to the Registrable Securities underwritten by it and distributed
pursuant to such Registration Statement.
9. NOTICES
Any notice required or permitted hereunder shall be given in writing
(unless otherwise specified herein) and shall be effective upon personal
delivery, via facsimile (upon receipt of confirmation of error-free transmission
and mailing a copy of such confirmation, postage prepaid by certified mail,
return receipt requested) or two business days following deposit of such notice
with an internationally recognized courier service, with postage prepaid and
addressed to each of the other parties thereunto entitled at the following
addresses, or at such other addresses as a party may designate by five days
advance written notice to each of the other parties hereto.
COMPANY: American Leisure Holdings.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx, President
Telephone: 000-000-0000
Facsimile: 000-000-0000
WITH A COPY TO: Xxxxxx & Xxxxx LLP
0000 X. Xxxxxxxx Xxxxxxxxx
0000 Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxx XX
Telephone: 000-000-0000
Fax: 000-000-0000
INVESTORS: At the address and facsimile set forth
on the signature page hereof
WITH A COPY TO: Xxxxxx & Xxxx LLP
0000 Xxxxx xx Xxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
10. ASSIGNMENT
The registration rights granted to any Holder under this Agreement may be
transferred or assigned provided the transferee is bound by the terms of this
Agreement and the Company is given written notice of such transfer or
assignment.
11. ADDITIONAL COVENANTS OF THE COMPANY
For so long as it shall be required to maintain the effectiveness of the
Registration Statement, it shall file all reports and information required to be
filed by it with the Commission in a timely manner and take all such other
action so as to maintain such eligibility for the use of the applicable form.
10. CONFLICTING AGREEMENTS
The Company shall not enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise prevents the Company from complying with all of its
obligations hereunder.
11. GOVERNING LAW; JURISDICTION
This Agreement shall be governed by and interpreted in accordance with the
laws of the State of Florida, without regard to its principles of conflict of
laws. Any action or proceeding seeking to enforce any provision of, or based on
any right arising out of, this Agreement may be brought against any party in the
federal courts of Florida or the state courts of the State of Florida, and each
of the parties consents to the jurisdiction of such courts and hereby waives, to
the maximum extent permitted by law, any objection, including any objections
based on forum non conveniens, to the bringing of any such proceeding in such
jurisdictions.
12. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement supersedes all prior agreements
and understandings among the parties hereto with respect to the subject
matter hereof. This Agreement, together with the other Primary Documents,
including any certificate, schedule, exhibit or other document delivered
pursuant to their terms, constitutes the entire agreement among the parties
hereto with respect to the subject matters hereof and thereof, and
supersedes all prior agreements and understandings, whether written or
oral, among the parties with respect to such subject matters.
(b) AMENDMENTS. This Agreement may not be amended except by an
instrument in writing signed by the party to be charged with enforcement.
(c) WAIVER. No waiver of any provision of this Agreement shall be
deemed a waiver of any other provisions or shall a waiver of the
performance of a provision in one or more instances be deemed a waiver of
future performance thereof.
(d) CONSTRUCTION. This Agreement and each of the Primary Documents
have been entered into freely by each of the parties, following
consultation with their respective counsel, and shall be interpreted fairly
in accordance with its respective terms, without any construction in favor
of or against either party.
(e) BINDING EFFECT OF AGREEMENT. This Agreement shall inure to the
benefit of, and be binding upon the successors and assigns of each of the
parties hereto, including any transferees of the Securities.
(f) SEVERABILITY. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability
shall not affect the validity or enforceability of the remainder of this
Agreement or the validity or unenforceability of this Agreement in any
other jurisdiction.
(g) ATTORNEYS' FEES. If any action should arise between the parties
hereto to enforce or interpret the provisions of this Agreement, the
prevailing party in such action shall be reimbursed for all reasonable
expenses incurred in connection with such action, including reasonable
attorneys' fees.
(h) HEADINGS. The headings of this Agreement are for convenience of
reference only and shall not form part of, or affect the interpretation of
this Agreement.
(i) COUNTERPARTS. This Agreement may be signed in one or more
counterparts, each of which shall be deemed an original and all of which,
when taken together, will be deemed to constitute one and the same
agreement.
[Signatures on the following page]
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed, on this 28th day of December, 2005.
AMERICAN LEISURE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Chief Executive Officer
INVESTORS:
STANFORD INTERNATIONAL BANK LTD
By:
------------------------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
