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Exhibit 10.60
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement"), dated as of
March 7, 1997, is by and among XXXXXXX EQUITY FUND I, L.L.C., a Georgia limited
liability company (the "Purchaser"), and CROWN NORTHCORP, INC., a Delaware
corporation (the "Company").
WITNESSETH:
WHEREAS, the Purchaser desires to purchase certain shares of the
Common Stock from the Company on the date hereof and in the future; and
WHEREAS, the Company desires to encourage the Purchaser to purchase
such shares of the Common Stock by granting to the Holders certain registration
rights relating to such shares;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt, adequacy, and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINED TERMS. The following terms shall have the following
meanings:
"CERTIFICATE OF INCORPORATION" means the Restated Certificate of
Incorporation of the Company, as amended and as in effect on the date hereof.
"COMMON STOCK" means the Common Stock, par value $.01 per share, of
the Company.
"COMMISSION" means the Securities and Exchange Commission or any
similar federal agency then having jurisdiction to enforce the Securities Act
and other federal securities laws.
"HOLDERS" means the owners of the Registrable Securities at the time
of determination.
"NASD" means the National Association of Securities Dealers, Inc. or
any successor corporation thereto.
"MARKET PRICE," with respect to any security, means:
(a) if such security is traded on a securities exchange or through
Nasdaq National Market, the average of the closing prices of such security on
such exchange over the thirty-day period ending three days prior to the date of
determination;
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(b) if such security is actively traded over-the counter, the average
of the closing bid or sales prices (whichever is applicable) of such security
over the thirty-day period ending three days prior to the date of
determination;
(c) If there is no active public market for such security, the fair
market value thereof as mutually determined by the Company and the holders of
the securities at issue; provided, however, that if the Company and such
holders are unable to reach agreement as to such fair market value within 15
business days after such security is to be valued hereunder, then such fair
market value shall be conclusively determined as expeditiously as practicable
thereafter by an independent investment bank designed by mutual agreement of
the Company and such holders holding at least 50% of such securities at issue;
provided, however, that if the Company and such holders fail to agree upon the
selection of such investment banker within 10 additional business days, then
either party may petition the Chief Judge for the United States District Court,
Northern District of Georgia, to select an independent appraiser, and such
judge's selection shall be conclusively binding on the parties; provided,
further, however, that if such judge declines to make such election, such
investment banker will be selected in an arbitration proceeding pursuant to
Section 7(h).
"PERSON" means an individual or a corporation, partnership, trust,
incorporated or unincorporated association, joint venture, joint stock company,
government (or any agency or political subdivision thereof), or other entity of
any kind.
"PURCHASER BREACH" has the meaning ascribed thereto in the Stock
Purchase Agreement.
"REGISTRABLE SECURITIES," collectively, means (i) the Shares, (ii) any
shares of Common Stock hereafter distributed to the Holders by the Company as a
stock dividend or otherwise thereon, and (iii) any equity securities of the
Company convertible into, or exercisable or exchangeable for, any of the shares
of Common Stock identified in the foregoing clauses (i) through (ii); provided,
however, that any such securities shall cease to be Registrable Securities when
(i) such securities shall have been registered under the Securities Act, the
Registration Statement with respect to the sale of such securities shall have
become effective under the Securities Act, and such securities shall have been
disposed of pursuant to such effective registration statement, (ii) such
securities shall have been otherwise transferred, if new certificates or other
evidences of ownership for them not bearing a legend restricting further
transfer and not subject to any stop transfer order or other restrictions on
transfer shall have been delivered by the Company and subsequent disposition of
such securities shall not require registration or qualification of such
securities under the Securities Act or any state securities law then in force,
or (iii) such securities shall cease to be outstanding.
"REGISTRATION PERIOD," with respect to any registration of Registrable
Securities, has the meaning ascribed thereto in Section 2(c)(1).
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"SECOND CLOSING" has the meaning ascribed thereto in the Stock
Purchase Agreement.
"SECOND CLOSING SHARES" has the meaning ascribed thereto in the Stock
Purchase Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"SECURITIES EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, or any successor federal statute, and the rule and regulations of
the Commission thereunder, all as the same shall be in effect from time to
time.
"SELLER BREACH" means either:
(i) each of the applicable conditions precedent to the
Company's obligation under the Stock Purchase Agreement to consummate the
transactions to be consummated thereunder at a Second Closing set forth in
Section 2.4 (other than Section 2.4(c)) are satisfied, but such Second Closing
does not occur due to either:
(A) the failure to satisfy a condition precedent to
the Purchaser's obligation to consummate the transactions to be consummated
under the Stock Purchase Agreement at the Second Closing pursuant to Sections
2.3(b),(d),(g),(h),(i), or (j); or
(B) the Company's breach or anticipatory breach of
its obligation under the Stock Purchase Agreement to deliver the Common Stock to
be delivered at the related Second Closing;
OR
(ii) each of the applicable conditions precedent to the
Company's obligation under the Stock Purchase Agreement to consummate the
transactions to be consummated thereunder at the Third Closing set forth
Section 3.4 (other than Section 3.4(b)) are satisfied, but the Third Closing
does not occur due to either:
(A) the failure to satisfy a condition precedent to
the Purchaser's obligation to consummate the transactions to be consummated
under the Stock Purchase Agreement at the Third Closing pursuant to Section
3.3(b),(d),(g),(h),(i), or (j); or
(B) the Company's breach or anticipatory breach of
its obligation under the Stock Purchase Agreement to deliver the Third Closing
Shares.
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"SHARES" means the shares of Common Stock purchased by the Purchaser
from the Company at any time and from time to time pursuant to the Stock
Purchase Agreement.
"STOCK" means all share, options, warrants, general or limited
partnership interests, participations, or other equivalents (regardless of how
designated) of or in a corporation, partnership, or equivalent entity, whether
voting or nonvoting, including, without limitation, common stock, preferred
stock, or any other "equity security" (as such term is defined in Rule 3a11-1
of the General Rules and Regulations promulgated by the Commission under the
Securities Exchange Act.
"STOCK PURCHASE AGREEMENT" means that certain Stock Purchase
Agreement, dated as of even date herewith, between and among the Company and
the Purchaser.
"SUBSTANTIAL MARKET VALUE SECURITIES" shall mean Reduction Securities
not then sellable at the time of determination under Rule 144 of the Securities
Act and having a Market Price equal to or in excess of $250,000 at the time of
determination.
"THIRD CLOSING" has the meaning ascribed thereto in the Stock Purchase
Agreement.
"THIRD CLOSING SHARES" has the meaning ascribed thereto in the Stock
Purchase Agreement.
SECTION 2. REGISTRATION RIGHTS.
(a) DEMAND REGISTRATION. From and after the earlier of (x) date that
is one calendar year after the date hereof, (y) the occurrence of a Seller
Breach, and (z) the date that the Purchaser no longer owns 5% of the
outstanding Common Stock, in each case after receipt of a written request from
the Holders owning 50% of the Registrable Securities of each class requesting
that the Company effect the registration of all or a portion of the Registrable
Securities and specifying the intended method or methods of disposition thereof
(a "Holder Notice"), the Company shall, as expeditiously as is possible, use
its reasonable best efforts to effect the registration for sale under the
Securities Act of all shares of Registrable Securities which the Company has
been so requested to register by such Holders, all to the extent required to
permit the disposition (in accordance with the intended method or methods
thereof, as aforesaid) of such Registrable Securities so registered; provided,
however, that the Company shall not be required to effect more than one (1)
registration of any Registrable Securities pursuant to this Section 2(a) except
as otherwise expressly provided herein. Notwithstanding any provision of this
Agreement to the contrary, however, the rights granted to the Purchaser and the
Holders pursuant to this Agreement including, without limitation, this Section
2(a), shall be irrevocably terminated upon the occurrence of a Purchaser
Breach.
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If the managing underwriter of a proposed public offering shall advise
the Company in writing that, in its opinion, the distribution of the Registrable
Securities requested to be included in the registration concurrently with the
securities being registered by the Company or such other registering security
holders would materially and adversely affect the distribution of such
securities by the Company or such registering security holders, then the Company
may require all selling security holders (other than the Company) to reduce the
amount of securities each intended to distribute through such offering on a pro
rata basis; provided, however, that if the Company requires such reduction, and
if Holders requesting such registration pursuant to this Section 2(a) are unable
to include in such registration Registable Securities that they requested be
included in such registration in the related Holder Notice that constitute
Substantial Market Value Securities, due to such pro rata reduction (the
Registrable Securities that such Holder so requested to be included in such
registration that were not included in such registration due to such pro rata
reduction being referred to herein as the "Reduction Shares", and the
registration in which such reduction occurred being referred to herein as a
"Failed Registration"), then subject to the other provisions hereof applicable
to a demand registration the Holders of the Reduction Shares shall have the
right, exercisable commencing on the day that is two calendar months after the
termination of the Registration Period relating to the Failed Registration by
written notice sent to the Company by Holders of 50% of the Reduction Shares (a
"Repurchase/Register Notice"), to require the Company to elect (at the Company's
option) to either register the Reduction Shares otherwise pursuant to this
Section 2(a) or, if the foregoing offer to sell or resulting sale is then
lawful, to repurchase the Reduction Shares at the higher of (i) the price per
share for which Registrable Securities were actually sold in the Failed
Registration, or (ii) the Market Price on the date the Repurchase/Register
Notice is sent to the Company in compliance with this Agreement; provided,
however, that the Holders shall not be deemed hereby or thereby to have made any
offer to sell to the Company that does not comply with applicable law and the
Company shall not be entitled or deemed to be entitled to repurchase such
Reduction Shares or to be offered the right to or solicit the right to
repurchase such Reduction Shares or deemed to have bid for such Reduction Shares
hereby or thereby if such repurchase, offer, or bid would violate any applicable
securities law; and provided further, however, that any such repurchase shall
otherwise comply with the procedures applicable to the Company's right to
repurchase securities upon the occurrence of a Purchaser Breach set forth in
Article VIII of the Stock Purchase Agreement, to the extent that such procedures
do not conflict with the provisions hereof, without requirement for the
occurrence of a Purchaser Breach. The Company shall respond to such
Repurchase/Register Notice by written notice to the Purchaser within 30 business
days after its receipt of the Repurchase/ Register Notice (an "Election
Notice"), which Election Notice shall set forth whether the Company desires to
so register such Reduction Shares or to repurchase such Reduction Shares;
provided, however, that the Company shall be deemed to have elected to register
such Reduction Shares if it does not give such notice within such 30 business
day period. If the Company so elects to repurchase such Reduction Shares, and if
the Market Price requires an agreement of the Company and such holders as to the
fair market value of such Reduction Shares, the consummation of such repurchase
shall not be required to be consummated until as
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soon as practicable after such fair market value has been determined as set
forth in the definition of Market Price set forth herein.
(b) INCIDENTAL REGISTRATION. If the Company at any time proposes to
file on its behalf and/or on behalf of any of its security holders (the
"registering security holders") a Registration Statement under the Securities
Act on any form (other than a Registration Statement on Form S-4 or S-8 or any
successor form for securities to be offered in a transaction of the type
referred to in Rule 145 under the Securities Act or to employees of the Company
pursuant to any employee benefit plan, respectively) for the general
registration of securities to be sold for cash with respect to its Common Stock
or any other class of equity security of the Company, it will give written
notice to the Purchaser at least 45 days before the initial filing with the
Commission of such Registration Statement, which notice shall set forth the
intended method of disposition of the securities proposed to be registered by
the Company. The notice shall offer to include in such filing the aggregate
number of shares of Registrable Securities as the Holders owning 50% or more of
the Registrable Securities of each class may request.
The Holders owning 50% or more of the Registrable Securities of each
class may advise the Company in writing within 20 days after the date of such
receipt of such offer from the Company, setting forth the amount of Registrable
Securities for which registration is so requested. The Company shall thereupon
include in such filing the number of shares of Registrable Securities for which
registration is so requested, subject to the next sentence, and shall use its
reasonable best efforts to effect registration under the Securities Act of such
shares. If the managing underwriter of a proposed public offering shall advise
the Company in writing that, in its opinion, the distribution of the
Registrable Securities requested to be included in the registration
concurrently with the securities being registered by the Company or such
registering security holder would materially and adversely affect the
distribution of such securities by the Company or such registering security
holder, then all selling security holders (other than the Company) shall reduce
the amount of securities each intended to distribute through such offering on a
pro rata basis.
Notwithstanding any provision of this Agreement to the contrary, the
Holders and the Purchaser, collectively, shall be entitled to include shares of
Registrable Securities in any registration of Stock pursuant to this Section
2(b) on a maximum of three occasions. Notwithstanding any provision of this
Agreement to the contrary, however, the rights granted to the Purchaser and the
Holders pursuant to this Agreement including, without limitation, this Section
2(b), shall be irrevocably terminated upon the occurrence of a Purchaser
Breach.
(c) REGISTRATION PROCEDURES. If the Company is required by the
provisions of Section 2(a) or Section 2(b) to use its reasonable best efforts
to effect the registration of any of its securities under the Securities Act,
the Company will, as expeditiously as possible:
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(i) prepare and file with the Commission a Registration
Statement with respect to such securities and use its reasonable best efforts
to cause such Registration Statement to become and remain effective for a
period of time required for the disposition of such securities by the selling
Holders, but not to exceed 180 days; provided, however that such time shall be
extended by the length, minus 30 days, of any period(s) in excess of 30 days in
the aggregate during which such Holders must suspend sales in order to permit
the filing and effectiveness of any amendment or supplement to the Registration
Statement necessitated by an event not precipitated by a Holder (such period,
as it may be so extended with respect to any registration, is referred to
herein as the "Registration Period" with respect to such registration);
(ii) prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective and to comply with the provisions of the Securities Act with respect
to the sale or other disposition of any securities covered by such Registration
Statement until the end of the related Registration Period;
(iii) furnish to each selling Holder such number of copies of
a summary prospectus or other prospectus (including any amendments or
supplements to any Registration Statement), including a preliminary prospectus,
in conformity with the requirements of the Securities Act, and such other
documents as such Holder may reasonably request;
(iv) use its reasonable best efforts to register or qualify
the securities covered by such Registration Statement under such other
securities or blue sky laws of such jurisdictions within the United States and
Puerto Rico as the selling Holders shall request (provided, however, that the
Company shall not be obligated to qualify as a foreign corporation to do
business under the laws of any jurisdiction in which it is not then qualified
or to file any general consent to service of process), and do such other
reasonable acts and things as may be required of it to enable such Holders to
consummate the disposition in such jurisdiction of the securities covered by
such Registration Statement;
(v) enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities; and
(vi) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, but not less than 18
months after the effective date of the Registration Statement, an earnings
statement covering the period of at least 12 months beginning with the first
full month after the effective date of such Registration Statement, which
earnings statements shall satisfy the provisions of Section 11(a) of the
Securities Act.
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It shall be a condition precedent to the obligation of the Company to
take any action pursuant to this Section 2 in respect of the securities which
are to be registered at the request of any Holder that such Holder furnishes to
the Company such information regarding the securities held by such Holder and
the intended method of disposition thereof as the Company shall reasonably
request and as shall be required under the Securities Act in connection with
the action taken by the Company and that such Holder shall execute such
agreements, instruments, and other documents in connection with such
registration (including, without limitation, an escrow agreement relating to
such securities) as the Company may reasonably request.
SECTION 3. REGISTRATION EXPENSES. All expenses incurred in complying
with Section 2 of this Agreement, including, without limitation, all
registration and filing fees (including all expenses incident to filing with
the NASD), printing expenses, fees and disbursements of counsel for the
Company, expense of any special audits incident to or required by such
registration, time charges of Company personnel, and expenses of complying with
the securities or blue sky laws of any jurisdictions pursuant to Section 2(c),
shall be paid by the Company, except that:
(a) all such expenses in connection with any amendment or supplement
to the Registration Statement or prospectus filed more than 120 days after the
effective date of such Registration Statement because any Holder has not
effected the disposition of the securities it requested to be registered shall
be paid by such Holder; provided, however, that such 120 day period shall be
extended by the length, minus 30 days, of any period(s) in excess of 30 days in
the aggregate during which the selling Holders must suspend sales to permit the
filing and effectiveness of any amendment or supplement to the Registration
Statement necessitated by an event not precipitated by any Holder;
(b) the Company shall not be liable for any fees, discounts, or
commissions to any underwriter in respect of the securities sold by any of the
Holders; and
(c) the Company shall not be liable for any fees or expenses of
counsel to selling security holders.
SECTION 4. INDEMNIFICATION AND CONTRIBUTION. (a) In the event of any
registration of any Registrable Securities under the Securities Act pursuant to
this Agreement, the Company shall indemnify and hold harmless the Holders,
their directors and officers, and each other Person (including each
underwriter) who participated in the offering of such Registrable Securities
and each other Person, if any, who controls a Holder or such participating
person within the meaning of the Securities Act, against any losses, claims,
damages, or liabilities, joint or several, to which any of the Holders or any
such director or officer or participating person or controlling person may
become subject under the Securities Act or any other statute or at common law,
insofar as such losses, claims, damages, or liabilities (or actions in respect
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thereof) arise out of or are based upon (i) any alleged untrue statement of any
material fact contained, on the effective date thereof, in any Registration
Statement under which such securities were registered under the Securities Act,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, or (ii) any alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse the Holders or such
director, officer, or participating person or controlling person for any legal
or any other expenses reasonably incurred by such Person in connection with
investigating or defending any such loss, claim, damage, or liability;
provided, however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, or liability arises out of or is
based upon any alleged untrue statement or alleged omission made (x) in such
Registration Statement, preliminary prospectus, prospectus, or amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Holder, any other selling
security holder other than the Company, or such underwriter specifically for
use therein, or (y) in such Registration Statement, preliminary prospectus, or
amendment or supplement but corrected in such final prospectus if the Company
complied with its obligations pursuant to Section 2(c)(iii) with respect to the
related selling Holder but such final prospectus was not delivered to the
Person alleging such loss, claim, damage, or liability. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Holder or such director, officer, or participating person or
controlling Person, and shall survive the transfer of such securities by the
Holder.
(b) The Purchaser and each other Holder, by its acceptance of any of
the Registrable Securities, agrees to indemnify and hold harmless the Company,
its directors and officers, and each other Person, if any, who controls the
Company within the meaning of the Securities Act, against any losses, claims,
damages, or liabilities, joint or several, to which the Company or any such
director or officer or any such Person may become subject under the Securities
Act or any other statute or at common law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon information in writing provided to the Company by or on behalf of
such Holder specifically for use in the following documents (and not corrected
by or on behalf of such Holder in a written notice actually received by the
Company prior to the effective date thereof), in any Registration Statement
under which securities were registered under the Securities Act at the request
of the Holder, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereto.
(c) If the indemnification provided for in this Section 4 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities, or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities, or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified parties
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in connection with the actions which resulted in such losses, claims, damages,
liabilities, or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
parties shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, as well as the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities, and expenses referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4(c) 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 the immediately preceding
paragraph. 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 also guilty of such fraudulent
misrepresentation.
SECTION 5. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. Notwithstanding
the other provisions of this Agreement, the Company shall not be obligated to
register the Registrable Securities of any Holder if and to the extent that, in
the written opinion, addressed to the Company and upon which such Holder shall
be entitled to rely, of Powell, Goldstein, Xxxxxx & Xxxxxx LLP or such other
counsel to the Company reasonably satisfactory to such Holder and its counsel
(or, if such Holder has engaged an investment banking firm, to such investment
banking firm and its counsel), the sale or other disposition of such Holder's
Registrable Securities, in the manner and aggregate amount proposed by such
Holder (or by such investment banking firm), may be effected without
registering such Registrable Securities under the Securities Act, a copy of
which opinion shall be sent to such Holder.
SECTION 6 RULE 144 REPORTING. With a view to making available the
benefits of certain rules and regulations of the Commission which may permit
the sale of restricted securities (as that term is used in Rule 144 or any
successor rule under the Securities Act) to the public without registration,
the Company agrees to:
(a) make and keep public information available pursuant to Rule
144(c) under the Securities Act;
(b) use its reasonable best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act at any time after it has become
subject to such reporting requirements; and
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(c) so long as the Purchaser owns any restricted securities, furnish
to the Purchaser forthwith upon request a written statement by the Company as
to its compliance with the reporting requirements of Rule 144 (or any successor
rule), and of the Securities Act and the Securities Exchange Act, a copy of the
most recent annual or quarterly report of the Company, and such other reports
and documents so filed by the Company as the Purchaser may reasonably request
in availing itself of any rule or regulation of the Commission allowing the
Purchaser to sell any such securities without registration.
SECTION 7. MISCELLANEOUS
(a) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the
provisions of this Agreement may not be amended, modified, or supplemented, and
waivers or consents to departure from the provisions thereof may not be given,
without the prior written consent of the parties hereto.
(b) NOTICES. Any notice, demand, request, consent, approval,
declaration, or other communication hereunder to be made pursuant to the
provisions of this Agreement, shall be sufficiently given or made if in writing
and either delivered in person with receipt acknowledged or sent by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
(i) If to any Holder or to the Purchaser:
Xxxxxxx Equity Fund I, L.L.C.
Xxx Xxxxxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxx
With a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxxxxx, Esq.
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(ii) If to the Company:
Crown NorthCorp, Inc.
0000 Xxxxxx Xxxx
Xxxxxxxx, Xxxx 00000
Attn: Xx. Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx, Esq.
With a copy to:
Powell, Goldstein, Xxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxx, Esq.
The giving of any notice required hereunder may be waived in writing by the
party entitled to receive such notice. Every notice, demand, request, consent,
approval, declaration, delivery, or other communication hereunder shall be
deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, or three (3) business days after the same
shall have been deposited in the United States mail.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties hereto. This Agreement may be assigned by the Company to any successor
to the Company without the consent of any Holder. The rights of the Company
pursuant to Section 2(a) to repurchase Reduction Shares may be assigned, in
whole or in part, without the consent of any Holder; provided, however, that
the Company shall remain liable for the performance of its obligations under
Section 2(a). This Agreement may not otherwise be assigned by the Company
without the prior written consent of the Purchaser, which consent shall not be
unreasonably delayed or withheld. Subject to compliance with any applicable
securities laws, the Purchaser may assign all or any part of its rights
hereunder in connection with any transfer, assignment, sale or conveyance of
all or any portion of its Registrable Securities.
(d) HEADINGS. The headings in this Agreement are for convenience of
reference only, and shall not limit or otherwise affect the meaning thereof.
(e) GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Delaware, without regard to the conflict of law provisions
thereof.
(f) SEVERABILITY. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any
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provision of this Agreement shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
(g) ENTIRE AGREEMENT. This Agreement represents the complete agreement
and understanding of the parties in respect of the subject matter contained
herein and therein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof.
(h) ARBITRATION AND LITIGATION. (i) Subject to clauses (ii) and (iii)
hereof, all disputes relating to this Agreement may be settled by arbitration
in Atlanta, Georgia before a single arbitrator pursuant to the rules of the
American Arbitration Association (the "Rules"). Arbitration may be commenced at
any time by any party hereto giving notice to the other parties hereto that are
parties to a dispute that such dispute has been referred to arbitration
pursuant hereto. The arbitrator shall be selected by agreement of the Purchaser
and the Company, but if they do not so agree within 20 days after the date of
the notice referred to above, the selection shall be made pursuant to the Rules
from the panel or arbitrators maintained by the Association. Any award rendered
by the arbitrator shall be conclusive and binding upon the parties hereto;
provided, however, that any such award shall be accompanied by a written
opinion of the arbitrator giving the award. This provision shall be
specifically enforceable by the parties and the decision of the arbitrator in
accordance herewith shall be final and binding, and there shall be no right of
appeal therefrom. Each party shall pay its own expense of arbitration and the
expenses of the arbitrator shall be equally shared; provided, however, that if
in the opinion of the arbitrator any party to the arbitration has raised a
frivolous claim, defense, or objection, then the arbitrator may assess, as a
part of his award, all or any part of the arbitration expenses of the other
parties (including reasonable attorney's fees) against the party raising such
frivolous claim, defense, or objection.
(ii) To the extent that arbitration may not be legally permitted
hereunder or the parties to any dispute hereunder may not at the time of such
dispute mutually agree to submit such dispute to arbitration, any party may
commence a civil action in a court of appropriate jurisdiction to resolve
disputes hereunder. None of the provisions hereof shall prevent the parties
from settling any dispute by mutual agreement at any time.
(iii) Any non-arbitration action, suit, or proceeding arising out of,
based upon, or in connection with this Agreement or the transactions
contemplated hereby may be brought only in a United States District Court
located in the State of Georgia and each party covenants and agrees not to
assert, by way of motion, as a defense, or otherwise, in any such action, suit,
or proceeding, any claim that it is not subject personally to the jurisdiction
of such court, that its property is exempt or immune from attachment or
execution, that the action, suit, or proceeding is brought in an inconvenient
forum, that the venue of the action, suit, or proceeding is improper, or that
this Agreement or the subject matter hereof may not be enforced in or by such
court.
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14
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXXXXX EQUITY FUND I, L.L.C.
BY: XXXXXXX MANAGEMENT CORPORATION,
MANAGER
By: /s/
----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President & CEO
CROWN NORTHCORP, INC.
By: /s/
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman & CEO
-15-
