EXHIBIT 10.13
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of November 4, 2002, by and between FRANKLIN BANK CORP., a Delaware
corporation (the "Company"), and FRIEDMAN, BILLINGS, XXXXXX & CO., INC., a
Delaware corporation ("FBR"), for the benefit of FBR and purchasers of the
Company's Class A Common Stock, par value $.01 per share ("Common Stock") as
participants ("Participants") in the private placement by the Company of
8,000,000 shares of Common Stock and their respective direct and indirect
transferees.
This Agreement is made pursuant to the Purchase/Placement Agreement (the
"Purchase/Placement Agreement"), dated October 29, 2002, by and between the
Company and FBR. In order to induce FBR to enter into the Purchase/Placement
Agreement, the Company has agreed to provide the registration rights provided
for in this Agreement to FBR, the Participants and their direct and indirect
transferees. The execution of this Agreement is a condition to the closing of
the transactions contemplated by the Purchase/Placement Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
ACCREDITED INVESTOR SHARES: Shares initially resold by FBR to
institutional "accredited investors" (within the meaning of Rule 501(a)(1), (2),
(3), (7) or (8) promulgated under the Securities Act) and Shares initially sold
by the Company to individual "accredited investors" (within the meaning of Rule
501(a)(4), (5) or (6) promulgated under the Securities Act) as Participants.
AFFILIATE: As to any specified Person, (i) any Person directly or
indirectly controlling, controlled by or under common control with such other
Person and (ii) any executive officer, director, trustee or general partner of
such Person.
BUSINESS DAY: With respect to any act to be performed hereunder, each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in New York, New York or other applicable place where such
act is to occur are authorized or obligated by applicable law, regulation or
executive order to close.
CLOSING DATE: November 4, 2002 or such other time or date as FBR and the
Company may agree.
COMMISSION: The Securities and Exchange Commission.
COMMON STOCK: As defined in the preamble.
COMPANY: As defined in the preamble.
CONTROLLING PERSON: As defined in Section 6(a) hereof.
END OF SUSPENSION NOTICE: As defined in Section 5(b) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission pursuant thereto.
HOLDER: Each record owner of any Registrable Shares from time to time,
including FBR and its Affiliates.
INDEMNIFIED PARTY: As defined in Section 6(c) hereof.
INDEMNIFYING PARTY: As defined in Section 6(c) hereof.
INITIAL PURCHASER: As defined in the preamble.
1
IPO REGISTRATION STATEMENT: As defined in Section 2 hereof.
LIABILITIES: As defined in Section 6(a) hereof.
LIQUIDATED DAMAGES: As defined in Section 5(d) hereof.
NASD: The National Association of Securities Dealers, Inc.
OFFERING MEMORANDUM: The Offering Memorandum of the Company dated October
29, 2002 pursuant to which the Shares are offered and sold.
PARTICIPANTS: As defined in the preamble.
PERSON: An individual, partnership, corporation, trust, unincorporated
organization, government or agency or political subdivision thereof, or any
other legal entity.
PROCEEDING: An action, claim, suit or proceeding (including without
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or, to the knowledge of the Person subject thereto,
threatened.
PROSPECTUS: The prospectus included in any Registration Statement,
including any preliminary prospectus, and all other amendments and supplements
to any such prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such prospectus.
PURCHASER INDEMNITEE: As defined in Section 6(a) hereof.
PURCHASE/PLACEMENT AGREEMENT: As defined in the preamble.
REGISTRABLE SHARES: The Rule 144A Shares, the Accredited Investor Shares
and the Regulation S Shares, upon original issuance thereof and at all times
subsequent thereto, including upon the transfer thereof by the original Holder
or any subsequent Holder and any shares or other securities issued in respect of
such Shares by reason of or in connection with any exchange for or replacement
of such Shares or any stock dividend, stock distribution, stock split, purchase
in any rights offering or in connection with any combination of shares,
recapitalization, merger or consolidation, or any other equity securities issued
pursuant to any other pro rata distribution with respect to the Common Stock,
until, in the case of any such Rule 144A Share, Accredited Investor Share or
Regulation S Share, the earliest to occur of (i) the date on which it has been
registered effectively pursuant to the Securities Act and disposed of in
accordance with the Registration Statement relating to it, (ii) the date on
which either it is distributed to the public pursuant to Rule 144 or is saleable
pursuant to Rule 144(k) promulgated by the Commission pursuant to the Securities
Act or (iii) the date on which it is sold to the Company.
REGISTRATION DEFAULT: As defined in Section 5(d) hereof.
REGISTRATION EXPENSES: Any and all expenses incident to the performance of
or compliance with this Agreement, including, without limitation: (i) all
Commission, securities exchange, NASD registration, listing, inclusion and
filing fees, (ii) all fees and expenses incurred in connection with compliance
with international, federal or state securities or blue sky laws (including,
without limitation, any registration, listing and filing fees and reasonable
fees and disbursements of counsel in connection with blue sky qualification of
any of the Registrable Shares and the preparation of a blue sky memorandum and
compliance with the rules of the NASD), (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, duplicating, printing,
delivering and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities sales
agreements, certificates and any other documents relating to the performance
under and compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing or inclusion of any of the Registrable Shares on any
securities exchange or The Nasdaq Stock Market pursuant to Section 4(n) of this
Agreement, (v) the fees and disbursements of counsel for the Company and of the
independent public accountants (including, without limitation, the expenses of
any special audit and "cold comfort" letters required by or incident to such
performance), and reasonable fees and disbursements of one counsel for the
selling Holders and (vi) any fees and disbursements customarily paid in issues
and sales of securities (including the fees and expenses of any experts retained
by the Company in connection with any Registration Statement), but excluding
brokers' or underwriters' discounts and commissions, if any, relating to the
sale or disposition of Registrable Shares by a Holder.
2
REGISTRATION STATEMENT: Any registration statement of the Company that
covers the resale of Registrable Shares pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement or Prospectus, including pre- and post-effective
amendments, all exhibits thereto and all material incorporated by reference or
deemed to be incorporated by reference, if any, in such registration statement.
REGULATION S: Regulation S (Rules 901-904) promulgated by the Commission
under the Securities Act, as such rules may be amended from time to time, or any
similar rule or regulation hereafter adopted by the Commission as a replacement
thereto having substantially the same effect as such regulation.
REGULATION S SHARES: Shares initially resold by FBR to "non-U.S. persons"
(in accordance with Regulation S) in an "offshore transaction" (in accordance
with Regulation S).
RULE 144: Rule 144 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
RULE 144A: Rule 144A promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
RULE 144A SHARES: Shares initially resold by FBR to "qualified
institutional buyers" (as such term is defined in Rule 144A).
RULE 158: Rule 158 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
RULE 174: Rule 174 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
RULE 415: Rule 415 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
RULE 424: Rule 424 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
RULE 429: Rule 429 promulgated by the Commission pursuant to the
Securities Act, as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission as a replacement thereto
having substantially the same effect as such rule.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission pursuant thereto.
SHARES: The shares of Common Stock being offered and sold pursuant to the
terms and conditions of the Purchase/Placement Agreement.
SHELF REGISTRATION STATEMENT: As defined in Section 2 hereof.
SUSPENSION EVENT: As defined in Section 5(b) hereof.
SUSPENSION NOTICE: As defined in Section 5(b) hereof.
3
UNDERWRITTEN OFFERING: A sale of securities of the Company on a
firm-commitment basis to an underwriter or underwriters for reoffering to the
public.
2. REGISTRATION RIGHTS
As set forth in Section 4 hereof, the Company agrees to file with the
Commission within two hundred eighty five (285) days and to cause to be declared
effective by the Commission as soon as practicable thereafter, but in any event
within three hundred sixty five (365) days of the Closing Date, either (i) a
Registration Statement on Form S-1 or such other form under the Securities Act
providing for the initial public offering of shares of Common Stock (an "IPO
Registration Statement"), which IPO Registration Statement will provide for the
resale by the Holders of any and all Registrable Shares (subject to Section
2(a)(ii) hereof) or (ii) subject to Section 2(b) hereof, a shelf Registration
Statement on Form S-1 or such other form under the Securities Act then available
to the Company providing for the resale pursuant to Rule 415 from time to time
by the Holders of any and all Registrable Shares (a "Shelf Registration
Statement").
(a) IPO REGISTRATION. If the Company files an IPO Registration
Statement, the Company will notify each Holder of the proposed filing and
afford each Holder of Registrable Shares an opportunity to include in such
IPO Registration Statement all or any part of the Registrable Shares then
held by such Holder. Each Holder desiring to include in any such IPO
Registration Statement all or part of the Registrable Shares held by such
Holder shall, within twenty (20) days after receipt of the above-described
notice from the Company, so notify the Company of the number of Registrable
Securities such Holder wishes to include in such IPO Registration Statement
and complete, sign and return the selling stockholder questionnaire
included with the notice.
(i) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any IPO Registration Statement initiated
by it prior to its effectiveness whether or not any Holder has elected
to include Registrable Shares in such registration.
(ii) UNDERWRITING. If an IPO Registration Statement is for an
Underwritten Offering, then the Company shall so advise the Holders of
Registrable Shares. In such event, the right of any such Holder's
Registrable Shares to be included in a registration pursuant to this
Section 2(a) shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Shares
in the underwriting to the extent provided herein. All Holders proposing
to distribute their Registrable Shares through such underwriting shall
enter into an underwriting agreement in customary form with the
representatives of underwriters selected for such underwriting and
complete and execute any questionnaires, powers of attorney,
indemnities, securities escrow agreements and other documents reasonably
required under the terms of such underwriting, and furnish to the
Company such information as the Company may reasonably request in
writing for inclusion in the Registration Statement; provided, however,
that no Holder shall be required to make any representations or
warranties to or agreements with the Company or the underwriters other
than representations, warranties or agreements regarding such Holder and
such Holder's intended method of distribution and any other
representation required by law. Notwithstanding any other provision of
this Agreement, if the representatives of the underwriters determine in
good faith that marketing factors require a limitation on the number of
shares to be underwritten, then the representatives of the underwriters
may exclude shares (including Registrable Shares) from the registration,
and the underwriting shall be allocated among the Company and all
Holders pro rata on the basis of Registrable Shares offered for such
registration by the Company and each Holder electing to participate in
such registration. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by notice to
the Company and the underwriter, delivered at least two (2) Business
Days prior to the effective date of the Registration Statement. Any
Registrable Shares excluded or withdrawn from such underwriting shall be
excluded and withdrawn from the registration.
(iii) HOLD-BACK AGREEMENT. By electing to include Registrable
Shares in any registration pursuant to this Section 2(a), the Holder of
the Registrable Shares shall be deemed to have agreed not to effect any
public sale or distribution of securities of the Company of the same or
similar class or classes of the securities included in the Registration
Statement or any
4
securities convertible into or exchangeable or exercisable for such
securities, including a sale pursuant to Rule 144 or Rule 144A under the
Securities Act, during such periods as reasonably requested (but in no
event for a period longer than thirty (30) days prior to and one hundred
eighty (180) days following the effective date of the IPO Registration
Statement) by the representatives of the underwriters, if an
Underwritten Offering, or by the Company in any other registration.
(iv) REGISTRABLE SHARES NOT SOLD UNDER IPO REGISTRATION
STATEMENT. If (w) the Company terminates or withdraws the IPO
Registration Statement prior to its effectiveness or the distribution of
all Registrable Shares, if any, registered thereunder, (x) the
underwriters exercise their right pursuant to Section 2(a)(ii) of this
Agreement to exclude any Registrable Shares from the IPO Registration
Statement, (y) any Holder elects to withdraw or not to include any
Registrable
5
Shares in the IPO Registration Statement, or (z) any Registrable Shares
are otherwise not registered under and distributed pursuant to the IPO
Registration Statement, then the Company shall file a Shelf Registration
Statement relating to any Registrable Shares not registered under and
distributed pursuant to an IPO Registration Statement as soon as
practicable, but in no event later than (a) in the case of the
withdrawal or abandonment of the offering pursuant to the IPO
Registration Statement, the date which is the later of two hundred
eighty five (285) days after the Closing Date or thirty (30) days after
the earlier of the withdrawal or abandonment of the offering pursuant to
the IPO Registration Statement or (b) the date one hundred eighty (180)
days after the consummation of the offering pursuant to the IPO
Registration Statement.
(b) SHELF REGISTRATION. If the Company elects to file a Shelf
Registration Statement or is otherwise required to file a Shelf
Registration Statement pursuant to this Section 2, it shall notify each
Holder of the proposed filing and afford each Holder an opportunity to
include in such Shelf Registration Statement all or any part of the
Registrable Shares then held by such Holder. Each Holder desiring to
include in any such Shelf Registration Statement all or part of the
Registrable Shares held by such Holder shall, within twenty (20) days after
receipt of the above-described notice from the Company, so notify the
Company of the number of Registrable Securities such Holder wishes to
include in such Shelf Registration Statement and complete, sign and return
the selling stockholder questionnaire included with the notice. The Company
shall cause the Shelf Registration Statement to be declared effective by
the Commission within three hundred sixty five (365) days after the Closing
Date or, in the case of a Shelf Registration Statement filed pursuant to
Section 2(a)(iv), within eighty (80) days after the filing thereof with the
Commission. Any Shelf Registration Statement shall provide for the resale
from time of time, and pursuant to any method or combination of methods
legally available (including, without limitation, an Underwritten Offering,
a direct sale to purchasers, a sale through brokers or agents, or a sale
over the internet) by the Holders of any and all Registrable Shares.
(c) EXPENSES. The Company shall pay all Registration Expenses in
connection with the registration of the Registrable Shares pursuant to this
Agreement. Each Holder participating in a registration pursuant to this
Section 2 shall bear such Holder's proportionate share (based on the total
number of Registrable Shares sold in such registration) of all discounts,
commissions or other amounts payable to underwriters or brokers in
connection with a registration of Registrable Shares pursuant to this
Agreement.
3. RULES 144 AND 144A REPORTING
With a view to making available the benefits of certain rules and
regulations of the Commission that may at any time permit the sale of the
Registrable Shares to the public without registration, the Company agrees to:
(a) make available adequate current public information, as defined in
Rule 144, at all times after the one year has elapsed from the date of this
Agreement and any Registrable Shares are not eligible for resale under Rule
144(k) promulgated by the Commission;
(b) file with the Commission in a timely manner all reports and other
documents required to be filed by the Company under the Securities Act and
the Exchange Act (at any time after it has become subject to such reporting
requirements);
(c) so long as a Holder owns any Registrable Shares, if the Company is
not required to file reports and other documents under the Securities Act
and the Exchange Act, it will make available other information as required
by, and so long as necessary to permit sales of Registrable Shares pursuant
to, Rule 144 or Rule 144A; and
(d) so long as a Holder owns any Registrable Shares, to furnish to the
Holder promptly upon request a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time prior
to ninety (90) days after the effective date of the first Registration
Statement filed by the Company for an offering of its securities to the
general public), and of the Securities Act and the Exchange Act (at any
time after it has become subject to the reporting requirements of the
Exchange Act), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company, and take such
further actions, as a Holder may reasonably request in availing itself of
any rule or regulation of the Commission allowing a Holder to sell any such
Registrable Shares without registration.
6
4. REGISTRATION PROCEDURES
In connection with the obligations of the Company with respect to any
registration pursuant to this Agreement, the Company shall use its best efforts
to effect or cause to be effected the registration of the Registrable Shares
under the Securities Act to permit the sale of such Registrable Shares by the
Holder or Holders in accordance with the Holder's or Holders' intended method or
methods of distribution, and the Company shall:
(a) prepare and file with the Commission, as specified in this
Agreement, a Registration Statement, which Registration Statement shall
comply as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the
Commission to be filed therewith, and use its best efforts to cause such
Registration Statement to become effective as soon as practicable after
filing and to remain effective, subject to Section 5 hereof, until the
earlier of (i) the date on which all such Registrable Shares are sold in
accordance with the intended distribution of such Shares, (ii) none of the
Shares are Registrable Shares or (iii) the first anniversary of the
effective date of such Registration Statement (subject to extension as
provided in Section 5(c) hereof), provided, however, that the Company shall
not be required to cause any IPO Registration Statement to remain effective
for any period longer than ninety (90) days following the effective date of
such IPO Registration Statement (subject to extension as provided in
Section 5(c) hereof); PROVIDED, FURTHER, that if the Company has an
effective Shelf Registration Statement on Form S-1 under the Securities Act
and becomes eligible to use Form S-3 or such other short-form registration
statement form under the Securities Act, the Company may, upon thirty (30)
Business Days prior notice to all Holders of Registrable Shares, register
any Registrable Shares registered but not yet distributed under the
effective Shelf Registration Statement on such a short-form Shelf
Registration Statement and, once the short-form Shelf Registration
Statement is declared effective, de-register such shares under the previous
Registration Statement or transfer the filing fees from the previous Shelf
Registration Statement (such transfer pursuant to Rule 429, if applicable)
unless any Holder of Registrable Shares registered under the initial Shelf
Registration Statement notifies the Company within twenty (20) Business
Days of receipt of the Company notice that such a registration under a new
Shelf Registration Statement and de-registration of the initial Shelf
Registration Statement would interfere with its distribution of Registrable
Shares already in progress; the Company shall furnish at a reasonable time
prior to the filing thereof with the Commission, a copy of any Registration
Statement and each amendment or supplement, if any, to the Prospectus
included therein (including any documents incorporated by reference
therein) and shall use its best efforts to reflect in each such document,
when so filed with the Commission, such comments as FBR or the
representative of the Holders may reasonably propose.
(b) subject to Section 4(i) of this Agreement, (i) prepare and file
with the Commission such amendments and post-effective amendments to each
such Registration Statement as may be necessary to keep such Registration
Statement effective for the period described in Section 4(a) hereof; (ii)
cause each Prospectus contained therein to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule
424; and (iii) comply in all material respects with the provisions of the
Securities Act with respect to the disposition of all securities covered by
each Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the selling Holders
thereof;
(c) furnish to the Holders of Registrable Shares, without charge, as
many copies of each Prospectus, including each preliminary Prospectus, and
any amendment or supplement thereto and such other documents as such Holder
may reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Shares; the Company consents to the use of
such Prospectus, including each preliminary Prospectus, by the Holders of
Registrable Shares, if any, in connection with the offering and sale of the
Registrable Shares covered by any such Prospectus;
(d) use its best efforts to register or qualify, or obtain exemption
from the registration or qualification requirements for, all Registrable
Shares by the time the applicable Registration Statement is declared
effective by the Commission under all applicable state securities or "blue
sky" laws of such jurisdictions as FBR or any Holder of Registrable Shares
covered by a Registration Statement shall reasonably request in writing,
keep each such registration or qualification or exemption effective during
the period such Registration Statement is required to be kept effective
pursuant to Section 4(a) and do any and all other acts and things that may
be reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Shares owned
by such Holder; provided, however, that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction or to register
as a broker or dealer in such jurisdiction where it would not otherwise be
required to qualify but for this Section 4(d) and except as may be required
by the Securities Act, (ii) subject itself to taxation in any such
jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;
(e) use its best efforts to cause all Registrable Shares covered by
such Registration Statement to be registered and approved by such other
governmental agencies or authorities as may be necessary to enable the
Holders thereof to consummate the disposition
7
of such Registrable Shares;
(f) notify FBR and each Holder of Registrable Shares promptly and, if
requested by FBR or any Holder, confirm such advice in writing (i) when a
Registration Statement has become effective, when any post-effective
amendments become effective or upon the filing of a supplement to any
Prospectus, (ii) of the issuance by the Commission or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iii) of
any request by the Commission or any other federal or state governmental
authority for amendments or supplements to a Registration Statement or
related Prospectus or for additional information (such notice to be
accompanied by an instruction to suspend the use of the Prospectus until
the requisite changes have been made), (iv) of the happening of any event
during the period a Registration Statement is effective as a result of
which such Registration Statement or the related Prospectus or any document
incorporated by reference therein contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, or any document incorporated by reference therein, in light of
the circumstances under which they were made) not misleading (such notice
to be accompanied by an instruction to suspend the use of the Prospectus
until the requisite changes have been made) and (v) at the request of any
such Holder, promptly to furnish to such Holder a reasonable number of
copies of a supplement to or an amendment of such Prospectus as may be
necessary so that, as thereafter delivered to the purchaser of such
securities, such Prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(g) make every reasonable effort to avoid the issuance of, or if
issued, to obtain the withdrawal of, any order enjoining or suspending the
use or effectiveness of a Registration Statement or suspending the
qualification (or exemption from qualification) of any of the Registrable
Shares for sale in any jurisdiction, as promptly as practicable;
(h) upon request, furnish to each requesting Holder of Registrable
Shares, without charge, at least one conformed copy of each Registration
Statement and any post-effective amendment or supplement thereto (including
documents incorporated therein by reference or exhibits thereto, if
requested);
(i) except as provided in Section 5, upon the occurrence of any event
contemplated by Section 4(f)(iv) hereof, prepare as promptly as practicable
a supplement or post-effective amendment to a Registration Statement or the
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Shares, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(j) if requested by the representative of the underwriters, if any, or
any Holders of Registrable Shares being sold in connection with such
offering, (i) as promptly as practicable incorporate in a Prospectus
supplement or post-effective amendment such information as the
representative of the underwriters, if any, or such Holders indicate
relates to them or otherwise reasonably request be included therein and
(ii) make all required filings of such Prospectus supplement or such post-
effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(k) use its best efforts to furnish to each Holder of Registrable
Shares covered by such Registration Statement and the underwriters, if any,
a signed counterpart, addressed to each such Holder and the underwriters,
if any, of: (i) an opinion of counsel for the Company, dated as of the date
of each closing of the sale of Registrable Shares pursuant to a
Registration Statement, reasonably satisfactory to the underwriters (or if
not underwritten, to one representative of the selling Holders), covering
such matters as are customarily covered in opinions delivered to
underwriters in underwritten public offerings of securities; and (ii) a
"comfort" letter, dated the effective date of such Registration Statement
and the date of each closing under the underwriting agreement, signed by
the independent public accountants who have certified the Company's
financial statements included in such Registration Statement, covering
substantially the same matters with respect to such Registration Statement
(and the Prospectus included therein) and with respect to events subsequent
to the date of such financial statements, as are customarily covered in
accountants' letters delivered to underwriters in underwritten public
offerings of securities and such other financial matters as the
underwriters (or if not underwritten, one representative of the selling
Holders) may reasonably request;
(l) enter into customary agreements (including in the case of an
Underwritten Offering, an underwriting agreement in customary form) and
take all other action in connection therewith in order to expedite or
facilitate the distribution of the Registrable Shares included in such
Registration Statement and, in the case of an Underwritten Offering, make
representations and
8
warranties to the underwriters in such form and scope as are customarily
made by issuers to underwriters in underwritten offerings, to make the same
representations and warranties to the Holders of Registrable Shares covered
by such Registration Statement and confirm the same to the extent customary
if and when requested;
(m) make available for inspection by one representative of the Holders
and the representative of any underwriters participating in any disposition
pursuant to a Registration Statement and one law firm and one accounting
firm retained by each representative of such Holders or underwriters, all
financial and other records, corporate documents and properties of the
Company and cause the officers, directors and employees of the Company to
supply all information reasonably requested by any such representative, the
representative of the underwriters, counsel thereto or accountants in
connection with a Registration Statement; provided, however, that such
records, documents or information that the Company determines, in good
faith, to be confidential and notifies such representatives, representative
of the underwriters, counsel thereto or accountants are confidential shall
not be disclosed by the representatives, representative of the
underwriters, counsel thereto or accountants unless (i) the disclosure of
such records, documents or information is necessary to avoid or correct a
material misstatement or omission in a Registration Statement or
Prospectus, (ii) the release of such records, documents or information is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, or (iii) such records, documents or information have been
generally made available to the public by the Company;
(n) use its best efforts (including, without limitation, seeking to
cure any deficiencies cited by the exchange or market in the Company's
listing or inclusion application) to list or include all Registrable Shares
on the American Stock Exchange or the Nasdaq Stock Market (unless the
Company qualifies and chooses to list all Registrable Shares on the New
York Stock Exchange, in which event the Company shall use its best efforts
to list all Registrable Shares on the New York Stock Exchange);
(o) prepare and file in a timely manner all documents and reports
required by the Exchange Act and, to the extent the Company's obligation to
file such reports pursuant to Section 15(d) of the Exchange Act expires
prior to the expiration of the effectiveness period of the Registration
Statement as required by Section 4(a) hereof, the Company shall register
the class of securities represented by the Registrable Shares under the
Exchange Act and shall maintain such registration through the effectiveness
period required by Section 4(a) hereof;
(p) provide a CUSIP number for the class of securities represented by
the Registrable Shares, not later than the effective date of the
Registration Statement;
(q) (i) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the Commission, (ii) make generally
available to its stockholders, as soon as reasonably practicable, earnings
statements covering at least 12 months beginning after the effective date
of the Registration Statement that satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder, no later than forty-five
(45) days after the end of each fiscal year of the Company and (iii) not
file any Registration Statement or Prospectus or amendment or supplement to
such Registration Statement or Prospectus to which any Holder of
Registrable Shares covered by any Registration Statement shall have
reasonably objected on the grounds that such Registration Statement or
Prospectus or amendment or supplement does not comply in all material
respects with the requirements of the Securities Act, such Holder having
been furnished with a copy thereof at least two (2) Business Days prior to
the filing thereof;
(r) provide and cause to be maintained a registrar and transfer agent
for all Registrable Shares covered by any Registration Statement from and
after a date not later than the effective date of such Registration
Statement;
(s) in connection with any sale or transfer of the Registrable Shares
(whether or not pursuant to a Registration Statement) that will result in
the security being delivered no longer being Registrable
9
Shares, cooperate with the Holders and the representative of the
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing the Registrable Shares to be sold, which
certificates shall not bear any transfer restrictive legends and to enable
such Registrable Shares to be in such denominations and registered in such
names as the representative of the underwriters, if any, or the Holders may
request at least two (2) Business Days prior to any sale of the Registrable
Shares; and
(t) upon effectiveness of the first Registration Statement filed under
this Agreement, the Company will take such actions and make such filings as
are necessary to effect the registration of the Common Stock under the
Exchange Act simultaneously with or immediately following the effectiveness
of the Registration Statement.
The Company may require the Holders of Registrable Shares to furnish to the
Company such information regarding the proposed
10
distribution by such Holder of such Registrable Shares as the Company may from
time to time reasonably request in writing or as shall be required to effect the
registration of the Registrable Shares and no Holder shall be entitled to be
named as a selling stockholder in any Registration Statement and no Holder shall
be entitled to use the Prospectus forming a part thereof if such Holder does not
provide such information to the Company.
Each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(f)(iii) or 4(f)(iv)
hereof, such Holder will immediately discontinue disposition of Registrable
Shares pursuant to a Registration Statement until such Holder's receipt of the
copies of the supplemented or amended Prospectus. If so directed by the Company,
such Holder will deliver to the Company (at the expense of the Company) all
copies in its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Shares current at the
time of receipt of such notice.
5. BLACK-OUT PERIOD; LIQUIDATED DAMAGES
(a) Subject to the provisions of this Section 5 and a good faith
determination by a majority of the Board of Directors of the Company that it is
in the best interests of the Company to suspend the use of the Registration
Statement, following the effectiveness of a Registration Statement (and the
filings with any international, federal or state securities commissions), the
Company, by notice to FBR and to the Holders, may direct the Holders to suspend
sales of the Registrable Shares pursuant to the Registration Statement for a
period not to exceed thirty (30) days in any three month period or ninety (90)
days in the aggregate in any twelve (12) month period, if any of the following
events shall occur: (i) a primary Underwritten Offering by the Company where the
Company is advised by the representative of the underwriters for such
Underwritten Offering that the sale of Registrable Shares pursuant to the
Registration Statement would have a material adverse effect on the Company's
primary offering; or (ii) pending negotiations relating to, or the consummation
of, a transaction or the occurrence of an event (x) that would require
additional disclosure of material information by the Company in the Registration
Statement (or such filings) and which has not been so disclosed, (y) as to which
the Company has a bona fide business purpose for preserving confidentiality, or
(z) that renders the Company unable to comply with Commission requirements, in
each case under circumstances that would make it unduly burdensome to cause the
Registration Statement (or such filings) to become effective or to promptly
amend or supplement the Registration Statement on a post-effective basis, as
applicable. Upon the occurrence of any such suspension, the Company shall use
its best efforts to cause the Registration Statement to become effective or to
promptly amend or supplement the Registration Statement on a post-effective
basis or to take such action as is necessary to make resumed use of the
Registration Statement compatible with the Company's best interests, as
applicable, so as to permit the Holders to resume sales of the Registrable
Shares as soon as possible.
(b) Subject to the limitations in Section 5(a), in the case of an event
that causes the Company to suspend the effectiveness of a Registration Statement
pursuant to Section 5(a) (a "Suspension Event"), the Company shall give notice
(a "Suspension Notice") to FBR and to the Holders to suspend sales of
the Registrable Shares the Suspension Notice shall state that such suspension
shall continue only for so long as the Suspension Event or its effect is
continuing and the Company is taking all reasonable steps to terminate
suspension of the effectiveness of the Registration Statement as promptly as
possible. The Holders shall not effect any sales of the Registrable Shares
pursuant to such Registration Statement (or such filings) at any time after it
has received a Suspension Notice from the Company and prior to receipt of an End
of Suspension Notice. If so directed by the Company, each Holder will deliver to
the Company (at the expense of the Company) all copies other than permanent file
copies then in such Holder's possession of the Prospectus covering the
Registrable Shares at the time of receipt of the Suspension Notice. The Holders
may recommence effecting sales of the Registrable Shares pursuant to the
Registration Statement (or such filings) following further notice to such effect
(an "End of Suspension Notice") from the Company, which End of Suspension Notice
shall be given by the Company to the Holders and FBR in the manner described
above promptly following the conclusion of any Suspension Event and its effect.
(c) If the Company shall give a Suspension Notice pursuant to this Section
5, the Company agrees that it shall extend the period of time during which the
Registration Statement shall be maintained effective pursuant to this Agreement
by the number of days during the period from the date of the giving of the
Suspension Notice to and including the date when Holders shall have received the
End of Suspension Notice and copies of the supplemented or amended Prospectus
necessary to resume sales.
(d) If (i) the IPO Registration Statement, if required to be filed, is not
filed with the Commission on or prior to two hundred eighty five (285) days
after the Closing Date, (ii) the IPO Registration Statement is not declared
effective by the Commission within three hundred sixty five (365) days after the
Closing Date, (iii) the Shelf Registration Statement, if required to be filed,
is not filed with the Commission on or prior to the later of two hundred eighty
five (285) days after the Closing Date, or thirty (30) days after the earlier of
the withdrawal or abandonment of the offering pursuant to the IPO registration
statement (iv) the Shelf Registration Statement, if required to be filed, is not
filed within one hundred eighty (180) days of the consummation of the offering
pursuant to the IPO
11
Registration Statement, (v) the Shelf Registration Statement is not declared
effective by the Commission within three hundred sixty five (365) days after the
Closing Date or in the case of a Shelf Registration Statement required to be
filed pursuant to Section 2(a)(iv), the Shelf Registration Statement is not
declared effective by the Commission within eighty (80) days after the filing
thereof or (vi) after the IPO Registration Statement or the Shelf Registration
Statement has been declared effective such Registration Statement ceases to be
effective or usable in connection with resales of Registrable Shares during a
period in which it is required to be effective without being succeeded
immediately by any additional Registration Statement or post-effective amendment
covering the Registrable Shares, which has been filed and declared effective, a
"Registration Default" will be deemed to have occurred. In the case of a
Registration Default other than pursuant to the foregoing clauses (i) or (iii),
the Company will pay liquidated damages ("Liquidated Damages") to each holder of
Registrable Shares who has complied with such Holder's obligations under this
Agreement. The amount of Liquidated Damages payable during any period in which a
Registration Default has occurred and is continuing is .25% of the per share
offering price to investors set forth in the Offering Memorandum per annum per
Registrable Share (subject to adjustment in the event of a stock split, stock
recombination, stock dividend and the like) for the first ninety (90) days
during which a Registration Default has occurred and is continuing and .50% of
the per share offering price to investors set forth in the Offering Memorandum
per annum per Registrable Share (subject to adjustment in the event of a stock
split, stock recombination, stock dividend and the like) for any additional days
during which a Registration Default has occurred and is continuing, it being
understood that all calculations pursuant to this section shall be carried out
to five decimals. Following the cure of all Registration Defaults, Liquidated
Damages will cease to accrue with respect to such Registration Default. All
accrued Liquidated Damages shall be paid by wire transfer of immediately
available funds or by federal funds check by the Company on the first Business
Day of each month following a Registration Default, and Liquidated Damages will
be calculated on the basis of a 360-day year consisting of twelve 30-day months.
In the event that any Liquidated Damages are not paid when due, such overdue
Liquidated Damages, if any, shall bear interest until paid at the maximum
interest rate allowed by law, compounded quarterly. The parties hereto agree
that the Liquidated Damages provided for in this Section 5(d) constitute a
reasonable estimate of the damages that may be incurred by Holders by reason of
a Registration Default. In addition, in the case of a Registration Default
pursuant to clause (i) or (iii) above, the Company shall not pay any bonus
compensation to its Chief Executive Officer or Chief Financial Officer for 2003.
6. INDEMNIFICATION AND CONTRIBUTION
(a) The Company agrees to indemnify and hold harmless (i) FBR and each
Holder of Registrable Shares, (ii) each Person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act), any such Person (any of the Persons referred to in this clause (ii) being
hereinafter referred to as a "Controlling Person"), and (iii) the respective
officers, directors, partners, employees, representatives and agents of any such
Person or any Controlling Person (any Person referred to in clause (i), (ii) or
(iii) may hereinafter be referred to as an "Purchaser Indemnitee"), to the
fullest extent lawful, from and against any and all losses, claims, damages,
judgments, actions, out-of-pocket expenses, and other liabilities (the
"Liabilities"), including without limitation and as incurred, reimbursement of
all reasonable costs of investigating, preparing, pursuing or defending any
claim or action, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, including the reasonable fees and expenses of
counsel to any Purchaser Indemnitee, joint or several, directly or indirectly
related to, based upon, arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (as amended or supplemented if the Company
shall have furnished to such Purchaser Indemnitee any amendments or supplements
thereto), or any preliminary Prospectus or any other document used to sell the
Shares, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
insofar as such Liabilities arise out of or are based upon (x) any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Purchaser Indemnitee
furnished to the Company or any underwriter in writing by such Purchaser
Indemnitee expressly for use therein, (y) any untrue statement contained in or
omission from a preliminary Prospectus if a copy of the Prospectus (as then
amended or supplemented, if the Company shall have furnished to or on behalf of
the Holder participating in the distribution relating to the relevant
Registration Statement any amendments or supplements thereto) was not sent or
given by or on behalf of such Holder to the Person asserting any such
Liabilities who purchased Shares, if such Prospectus (or Prospectus as amended
or supplemented) is required by law to be sent or given at or prior to the
written confirmation of the sale of such Shares to such Person and the untrue
statement contained in or omission from such preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as amended or supplemented), or
(z) use of any Registration Statement, Prospectus or any preliminary Prospectus
during a period when a stop order has been issued in respect thereof or any
proceedings for that purpose have been initiated, or use of a Prospectus or any
preliminary Prospectus has been suspended pursuant to Sections 4(f)(ii),
4(f)(iii), 4(f)(iv) or 5(a); provided, however, in each case, that the Company
provided prior notice of such stop order, initiation of proceedings or
suspension. The Company shall notify the Holders promptly of the institution,
threat or assertion of any claim, proceeding (including any governmental
investigation), or litigation of which it shall have become aware in connection
with the matters addressed by this Agreement which involves the Company or a
12
Purchaser Indemnitee. The indemnity provided for herein shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Purchaser Indemnitee.
(b) In connection with any Registration Statement in which a Holder of
Registrable Shares is participating, such Holder agrees, severally and not
jointly, to indemnify and hold harmless the Company, each Person who signs the
Registration Statement, each Person who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20(a) of the Exchange Act and the
respective partners, directors, officers, members, representatives, employees
and agents of such Person or Controlling Person to the same extent as the
foregoing indemnity from the Company to each Purchaser Indemnitee, but only with
reference to untrue statements or omissions or alleged untrue statements or
omissions made in reliance upon and in strict conformity with information
relating to such Purchaser Indemnitee furnished to the Company in writing by
such Purchaser Indemnitee expressly for use in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary Prospectus.
The liability of any Purchaser Indemnitee pursuant to this paragraph shall in no
event exceed the net proceeds received by such Purchaser Indemnitee from sales
of Registrable Shares giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to paragraph (a)
or (b) above, such Person (the "Indemnified Party"), shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party"), in
writing of the commencement thereof (but the failure to so notify an
Indemnifying Party shall not relieve it from any liability which it may have
under this Section 6, except to the extent the Indemnifying Party is materially
prejudiced by the failure to give notice), and the Indemnifying Party, upon
request of the Indemnified Party, shall retain counsel reasonably satisfactory
to the Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Party may reasonably designate in such proceeding and shall pay the
reasonable fees and expenses actually incurred by such counsel related to such
proceeding. Notwithstanding the foregoing, in any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party,
unless (i) the Indemnifying Party and the Indemnified Party shall have mutually
agreed in writing to the contrary, (ii) the Indemnifying Party failed within a
reasonable time after notice of commencement of the action to assume the defense
and employ counsel reasonably satisfactory to the Indemnified Party, (iii) the
Indemnifying Party and its counsel do not actively and vigorously pursue the
defense of such action or (iv) the named parties to any such action (including
any impleaded parties), include both such Indemnified Party and the Indemnifying
Party, or any Affiliate of the Indemnifying Party, and such Indemnified Party
shall have been reasonably advised by counsel that, either (x) there may be one
or more legal defenses available to it which are different from or additional to
those available to the Indemnifying Party or such Affiliate of the Indemnifying
Party or (y) a conflict may exist between such Indemnified Party and the
Indemnifying Party or such Affiliate of the Indemnifying Party (in which case
the Indemnifying Party shall not have the right to assume nor direct the defense
of such action on behalf of such Indemnified Party, it being understood,
however, that the Indemnifying Party shall not, 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 for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel), for all such Indemnified Parties, which firm
shall be designated in writing by those Indemnified Parties who sold a majority
of the Registrable Shares sold by all such Indemnified Parties and any such
separate firm for the Company, the directors, the officers and such control
Persons of the Company as shall be designated in writing by the Company. The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, which consent shall not be unreasonably
withheld, but if settled with such consent or if there be a final,
non-appealable judgment for the plaintiff, the Indemnifying Party agrees to
indemnify any Indemnified Party from and against any loss or liability by reason
of such settlement or judgment. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Party is or could
have been a party and indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in paragraphs (a) and (b) of this
Section 6 is for any reason held to be unavailable to an Indemnified Party in
respect of any Liabilities referred to therein (other than by reason of the
exceptions provided therein) or is insufficient to hold harmless a party
indemnified thereunder, then each Indemnifying Party under such paragraphs, in
lieu of indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such Liabilities
(i) in such proportion as is appropriate to reflect the relative benefits of the
Indemnified Party on the one hand and the Indemnifying Party(ies) on the other
in connection with the statements or omissions that resulted in such
Liabilities, or (ii) if the allocation provided by clause (i) above is not
13
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Indemnifying Party(ies) and the Indemnified Party, as well as any
other relevant equitable considerations. The relative fault of the Company on
the one hand and any Purchaser Indemnitees on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact
14
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by such Purchaser Indemnitees and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
(even if such indemnified parties were treated as one entity for such purpose),
or by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph 6(d) above. The amount paid or payable
by an Indemnified Party as a result of any Liabilities referred to paragraph
6(d) shall be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses actually incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall a Purchaser
Indemnitee be required to contribute any amount in excess of the amount by which
proceeds received by such Purchaser Indemnitee from sales of Registrable Shares
exceeds the amount of any damages that such Purchaser Indemnitee has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section 6, each Person, if
any, who controls (within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act) FBR or a Holder of Registrable Shares shall have the same
rights to contribution as such Initial Purchaser or Holder, as the case may be,
and each Person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act) the Company, and each officer,
director, partner, employee, representative, agent or manager of the Company
shall have the same rights to contribution as the Company. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 6 or
otherwise, except to the extent that any party is materially prejudiced by the
failure to give notice. 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.
(f) The indemnity and contribution agreements contained in this Section 6
will be in addition to any liability which the indemnifying parties may
otherwise have to the indemnified parties referred to above. The Purchaser
Indemnitee's obligations to contribute pursuant to this Section 6 are several in
proportion to the respective number of Shares sold by each of the Purchaser
Indemnitees hereunder and not joint.
7. MARKET STAND-OFF AGREEMENT
Each Holder hereby agrees that it shall not, to the extent requested by the
Company or an underwriter of securities of the Company, sell or otherwise
transfer or dispose of any Registrable Shares or other shares of Common Stock of
the Company or any securities convertible into or exchangeable or exercisable
for shares of Common Stock of the Company then owned by such Holder (other than
to donees or partners of the Holder who agree to be similarly bound) within
thirty (30) days prior to and one hundred eighty (180) days following either (x)
the effective date of an IPO Registration Statement of the Company filed under
the Securities Act or (y) the date of an Underwritten Offering pursuant to a
Shelf Registration Statement of the Company filed under the Securities Act;
provided, however, that with respect to the 180-day restriction that follows the
effective date of an IPO Registration Statement, such agreement shall not be
applicable to Registrable Shares sold pursuant to such Registration Statement.
In order to enforce the foregoing covenant, the Company shall have the
right to place restrictive legends on the certificates representing the
securities subject to this Section 7 and to impose stop transfer instructions
with respect to the Registrable Shares and such other securities of each Holder
(and the securities of every other Person subject to the foregoing restriction)
until the end of such period.
8. TERMINATION OF THE COMPANY'S OBLIGATION
Subject to Section 10(j) of this Agreement, the Company shall have no
obligation pursuant to this Agreement with respect to any Registrable Shares
proposed to be sold by a Holder in a registration pursuant to this Agreement if,
in the opinion of counsel to the Company, all such Registrable Shares proposed
to be sold by a Holder may be sold in a three-month period without registration
under the Securities Act pursuant to Rule 144 under the Securities Act.
15
9. LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS
From and after the date of this Agreement, the Company shall not, without
the prior written consent of the Holders of a majority of the then outstanding
Registrable Shares, enter into any agreement with any holder or prospective
holder of any securities of the Company that would allow such holder or
prospective holder (a) to include such securities in any Registration Statement
filed pursuant to the terms hereof, unless under the terms of such agreement,
such holder or prospective holder may include such securities in any such
registration only to the extent that the inclusion of his securities will not
reduce the amount of Registrable Shares of the Holders that is included, or (b)
to have his securities registered on a registration statement that could be
declared effective prior to, or within one hundred twenty (120) days of, the
effective date of any Registration Statement filed pursuant to this Agreement.
10. MISCELLANEOUS
(a) Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement, each Holder of Registrable Shares, in addition
to being entitled to exercise all rights provided herein or, in the case of FBR,
in the Purchase/Placement Agreement, or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Subject to Section 6, the Company agrees that monetary damages would
not be adequate compensation for any loss incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further agrees that, in
the event of any action for specific performance in respect of such breach, it
shall waive the defense that a remedy at law would be adequate.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to or departures from the provisions hereof may not be
given, without the written consent of the Company and Holders beneficially
owning not less than fifty percent (50%) of the then outstanding Registrable
Shares; provided, however, that for purposes of this Agreement, Registrable
Shares that are owned, directly or indirectly, by an Affiliate of the Company
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage. Notwithstanding the foregoing, a
waiver or consent to or departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of a Holder whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders may
be given by such Holder; provided, however, that the provisions of this sentence
may not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(c) Notices. All notices and other communications, provided for or
permitted hereunder shall be made in writing by delivered by facsimile (with
receipt confirmed), overnight courier or registered or certified mail, return
receipt requested, or by telegram
(i) if to a Holder of Registrable Shares, at the most current address
given by the transfer agent and registrar of the Shares to the Company; and
(ii) if to the Company at the offices of the Company at 0000 Xxxxxxxx
Xxx., Xxxxx 000, Xxxxxxx, Xxxxx 00000 Attention: Chief Financial Officer;
(facsimile: 713-952-2830) or to such other address as the Company may have
furnished to FBR in writing in accordance with this Agreement.
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto,
including, without limitation and without the need for an express assignment or
assumption, subsequent Holders of Registrable Shares. The Company agrees that
the Holders shall be third party beneficiaries to the agreements made hereunder
by FBR and the Company, and each Holder shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder; provided, however, that such Holder
fulfills all of its obligations hereunder.
(e) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
16
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF VIRGINIA, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE COMMONWEALTH OF VIRGINIA, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY STATE COURT IN THE COMMONWEALTH OF VIRGINIA
OR ANY FEDERAL COURT SITTING IN VIRGINIA IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
(h) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties hereto that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(i) Entire Agreement. This Agreement, together with the Purchase/Placement
Agreement, is intended by the parties hereto as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein.
(j) Survival. This Agreement is intended to survive the consummation of
the transactions contemplated by the Purchase/Placement Agreement. The
indemnification and contribution obligations under Section 6 of this Agreement
shall survive the termination of the Company's obligations under Sections 2 or 8
of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
FRANKLIN BANK CORP.
By:
------------------------------------
Name:
Title:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By:
------------------------------------
Name:
Title:
17
