Exhibit 10.36
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of ___________, 2003, by and between Highland Hospitality
Corporation, a Maryland corporation (the "Company") and Friedman, Billings,
Xxxxxx & Co., Inc. (the "Initial Holder").
RECITALS
WHEREAS, the Company and the Initial Holder are parties to that certain
Warrant Agreement dated __________, 2003, which provides for the issuance by the
Company to the Initial Holder of warrants (the "Warrants") to purchase shares of
common stock, par value $.01 per share, of the Company ("Common Stock") at a
price of [$_____] per share of Common Stock; and
WHEREAS, the Company has agreed to register for resale by the Holders
(as defined below) such shares of Common Stock underlying the Warrants on the
terms set forth herein;
NOW THEREFORE, the parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms not otherwise defined
herein shall have the following meanings:
Commission: The United States Securities and Exchange Commission.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission pursuant thereto.
Holders: All holders of Warrants, which may include the Initial Holder
and its transferees pursuant Section 1.04 of the Warrant Agreement dated
___________, 2003 by and between Highland Hospitality Corporation and the
Initial Holder (the "Warrant Agreement"), and all holders of Registrable Shares,
which may include the Initial Holder and its transferees. If the Initial Holder
has not transferred any of the Warrants or Registrable Shares it holds pursuant
to the exercise of Warrants at the time at which either party to the Agreement
seeks to exercise a right under the Agreement, "Holder" and "Holders" shall mean
the Initial Holder only and "Holders of a majority of the then outstanding
Registrable Shares" shall mean the Initial Holder.
Initial Holder: Friedman, Billings, Xxxxxx & Co., Inc.
IPO: The underwritten initial public offering of the Company's Common
Stock.
NASD: National Association of Securities Dealers, Inc.
Prospectus: The prospectus included in the Registration Statement, 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.
Register, Registered, Registration: Such terms shall refer to a
registration effected by preparing and filing the Registration Statement in
compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
Registration Statement.
Registrable Shares: Each of the shares of Common Stock acquired by the
Holders pursuant to the exercise of Warrants and each of the shares of Common
Stock issuable pursuant to the exercise of Warrants, directly from the Company
in a transaction exempt from the registration requirements of the Securities
Act, until (i) the date on which it has been registered effectively pursuant to
the Securities Act and disposed of in accordance with the Registration
Statement, (ii) the date on which either it is distributed to the public
pursuant to Rule 144 (or any similar provisions then in effect) 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 saleable, without restriction, pursuant to
an available exemption from registration under the Securities Act, or (iv) the
date on which it is sold to the Company.
Registration Expenses: Any and all expenses incident to performance of
or compliance with this Agreement, including without limitation: (i) all
Commission, stock exchange, NASD registration, listing and filing fees, (ii) all
fees and expenses incurred in connection with compliance with federal or state
securities or blue sky laws (including 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
printing, delivering and distributing the Registration Statement, any
Prospectus, any amendments or supplements thereto, any certificates and other
documents relating to the performance of and compliance with this Agreement,
(iv) all fees and expenses incurred in connection with the listing of any of the
Registrable Shares on any securities exchange or The Nasdaq Stock Market, (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) of
the Company and (vi) any fees and disbursements customarily paid by issuers or
sellers of securities (including the fees and expenses of any experts retained
by the Company in connection with any Registration Statement), provided,
however, that Registration Expenses shall exclude brokers' commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Shares by a Holder and the fees and expenses of any counsel to any Holder.
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 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.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the Commission pursuant thereto.
2. Registration.
The Company agrees to file with the Commission no later than the first
anniversary of the closing date of the IPO a shelf Registration Statement on
Form S-3 or such other form under the Securities Act then available to the
Company, providing for the resale from time to time by the Holders of any and
all Registrable Shares (the "Registration Statement"). The Company shall use its
commercially reasonable efforts to cause the Registration Statement to be
declared effective by the Commission as soon as practicable following such
filing, and to keep such Registration Statement continuously effective for a
period ending when all the shares of common stock covered by the Registration
Statement are no longer Registrable Shares. The Registration Statement shall
provide for the resale from time to time, and pursuant to customary methods or
combination of methods legally available (including a direct sale to purchasers
and a sale through brokers or agents), by the Holders of any and all Registrable
Shares.
3. Registration Procedures. In connection with the Company's obligations with
respect to the Registration Statement pursuant to this Agreement, the Company
shall:
(a) prepare and file with the Commission, as specified in this
Agreement, the Registration Statement that complies as to form in all material
respects with the requirements of the Commission and use its commercially
reasonable efforts to cause such Registration Statement to become effective;
(b) prepare and file with the Commission such amendments and
post-effective amendments to each the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period, cause
the Prospectus to be supplemented by any required prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 or any similar rule that may be
adopted under the Securities Act;
(c) if requested by a Holder, prior to filing the Registration
Statement or any amendment or supplement thereto, furnish to such Holder of
Registrable Securities a copy of such Registration Statement as proposed to be
filed, and thereafter furnish to each Holder of Registrable Shares, without
charge, as many copies of each 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
pursuant to the Registration Statement; the Company consents to the use in
compliance with applicable law of any such Prospectus by the Holder of
Registrable Shares, if any, in connection with the offering and sale of the
Registrable Shares covered by any such Prospectus;
(d) use commercially reasonable efforts to register or qualify, or
obtain exemption for registration or qualification for, all Registrable Shares
by the time the Registration Statement is declared effective by the Commission
under all applicable state securities or "blue sky" laws of such jurisdictions
as 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 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 3(d), (ii) subject itself to any material taxation in any such
jurisdiction, or (iii) submit to the general service of process in any such
jurisdiction;
(e) notify each Holder of Registrable Shares promptly and, if requested
by a Holder, confirm such advice in writing (i) when the Registration Statement
has become effective and when any post-effective amendments and supplements
thereto become effective, (ii) of the issuance by the Commission or any state
securities authority of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
and (iii) of the happening of any event during the period the Registration
Statement is effective as a result of which the Registration Statement or the
Prospectus 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 not misleading, and (iv) upon the occurrence of any such
event, use best efforts to prepare a supplement or post-effective amendment to
the Registration Statement or the Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Shares, such Prospectus will not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(f) use best efforts to avoid the issuance of, or if issued to obtain
the withdrawal of, any enjoining order suspending the use or effectiveness of a
Registration Statement or the lifting of any suspension of the qualification (or
exemption from qualification) of any of the Registrable Shares for sale in any
jurisdiction, at the earliest possible moment;
(g) cause all Registrable Shares to be listed on each securities
exchange or quotation system on which the Common Stock is then listed;
(h) pay, or cause to be paid, the Registration Expenses;
(i) enter into customary agreements and take other actions as are
reasonably required to expedite or facilitate the disposition of such
Registrable Shares; and
(j) otherwise comply with all applicable rules and regulations of the
Commission, and make available to its stockholders, as soon as reasonably
practicable, an earnings statement covering a period of 12 months, beginning
within three months after the effective date of the registration statement,
which earnings shall satisfy the provisions of Section 11(a) of the Securities
Act and Rule 158 of the Commission promulgated thereunder (or any successor rule
or regulation hereafter adopted by the Commission).
4. Covenants of Holders.
(a) Each Holder agrees to furnish to the Company such information
regarding such Holder, the securities of the Company held by such Holder and the
proposed method of distribution by such Holder of the Registrable Shares owned
by such Holder as the Company may from time to time reasonably request in
writing or as shall be required to effect the registration of such Holder's
resale of Registrable Shares. Each Holder further agrees to furnish
promptly to the Company in writing all information required from time to time to
make the information previously furnished by such Holder not misleading.
(b) Each Holder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 3(e)(iii)
hereof, such Holder will immediately discontinue disposition of Registrable
Shares pursuant to the Registration Statement until such Holder's receipt of
copies of the supplemented or amended Prospectus. If so directed by the Company,
each Holder will deliver to the Company all copies of the Prospectus covering
such Registrable Shares in the Holder's possession at the time of receipt of
such notice.
5. Black-Out Period.
(a) Following the effectiveness of the Registration Statement, the Company
shall have the right, exercisable from time to time by delivery of a notice
authorized by the Company's board of directors, on not more than two occasions
in any 12 month period to require the Holders to suspend sales of the
Registrable Shares, including for up to 60 days in any 12-month period in the
case of pending negotiations relating to, or consummation of, a transaction or
the occurrence of an event (i) that would require additional disclosure of
material information by the Company in the Registration Statement or (ii) as to
which the Company has a bona fide business purpose for preserving
confidentiality, provided, however, that in no event shall the restricted period
extend for more than 60 days after the delivery of notice by the Company or for
more than 90 days in the aggregate during any 12-month period. The Company, as
soon as practicable, shall (i) give the Holders prompt written notice in the
event that the Company has suspended sales of Registrable Shares under this
Section 5(a), (ii) give Holders prompt written notice of the completion of such
material offering or transaction or (iii) promptly file any amendment necessary
for the Registration Statement or Prospectus in connection with the completion
of such event.
(b) In the case of an event that causes the Company to suspend the
effectiveness of the Registration Statement (a "Suspension Event"), the Company
may give notice (a "Suspension Notice") to the Holders to suspend sales of the
Registrable Shares so that the Company may correct or update the Registration
Statement; provided, however, that such suspension shall continue only for so
long as the Suspension Event or its effect is continuing. The Holders shall not
effect any sales of the Registrable Shares pursuant to such Registration
Statement at any time after it has received a Suspension Notice from the Company
and, if so directed by the Company, will deliver to the Company all copies of
the Prospectus covering the Registrable Shares held by them at the time of
receipt of the Suspension Notice. The Holders may re-commence effecting sales of
the Registrable Shares pursuant to the Registration Statement 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 promptly following the
conclusion of any Suspension Event.
6. Indemnification and Contribution
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless (i) each Holder, (ii) each person, if any, who controls (within
the meaning of the Securities Act or the Exchange Act) a Holder (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 each Holder or any Controlling Person
(any person referred to in clause (i), (ii) or (iii) may hereinafter be referred
to as an "Indemnified Party"), as follows:
(i) from and against any and all loss, claim, liability,
damage and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto) including all
documents incorporated therein by reference, or the omission or alleged
omission to state a material fact required to be stated therein or
necessary to make the statements therein, not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (or any amendment or supplement thereto),
including all documents incorporated therein by reference, or the
omission or alleged omission to state a material fact required to be
stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) from and against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, if such settlement is effected with the written
consent of the Company (which consent shall not be unreasonably
withheld);
(iii) from and against any and all expenses whatsoever
(including reasonable fees and disbursements of counsel), as incurred
in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, in each case whether or not a party, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) above; and
(iv) provided that such indemnity pursuant to this Section
6(a) shall not (A) inure to the benefit of the Holder (or any
Controlling Person thereof) to the extent that any such loss, claim,
liability, damage or expense arises out of such Holder's failure to
send or give a copy of the final Prospectus, as the same may be then
supplemented or amended, to the person asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior to
the written confirmation of the sale of Registrable Shares to such
person if such statement or omission was corrected in such final
Prospectus and copies of such final Prospectus were timely delivered to
the Holder or (B) apply to the Holder with respect to any loss,
liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information
furnished to the Company by such Holder expressly for use in the
Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto).
(b) Indemnification by Holders. Each Holder severally but not jointly
agrees to indemnify and hold harmless the Company, each of its directors and
officers (including each officer of the Company who signed the Registration
Statement), each Controlling Person of the Company, and any other Holder selling
securities under such Registration Statement or any of such other Holder's
partners, directors, officers or Controlling Persons, against any and all loss,
liability, claim, damage and expenses described in the indemnity contained in
Section 6(a) hereof (provided, however, that any settlement described in Section
6(a)(ii) hereof is effected with the written consent of such Holder, which
consent shall not be unreasonably withheld), as incurred, but only with respect
to such untrue statement or omission, or alleged untrue statements or omissions,
made in the Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
information furnished to the Company by the Holder expressly for use in the
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto). The liability of each such Holder of
Registrable Shares will be in proportion to and limited in all events to the
amount received by such Holder from the sale of Registrable Shares pursuant to
such Registration Statement.
(c) Conduct of Indemnification Proceedings. Each Indemnified Party
shall give reasonably prompt notice to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve it
from any liability that it may have under this indemnity agreement except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. If the indemnifying party so elects within a reasonable time after
receipt of such notice, the indemnifying party may assume the defense of such
action or proceeding at such indemnifying party's own expense with counsel
chosen by the indemnifying party and approved by the Indemnified Party or
parties in such action or proceeding, which approval shall not be unreasonably
withheld; provided, however, that if such Indemnified Party or parties
reasonably determines that a conflict of interest exists where it is advisable
for such Indemnified Party or parties to be represented by separate counsel or
that, upon advice of counsel, there may be legal defenses available to them that
are different from or in addition to those available to the indemnifying party,
then the indemnifying party shall not be entitled to assume such defense and the
Indemnified Party or parties shall be entitled to one separate counsel at the
indemnifying party's expense. If an indemnifying party is not entitled to assume
the defense of such action or proceeding as a result of the proviso to the
preceding sentence, such indemnifying party's counsel shall be entitled to
conduct such indemnifying party's defense, and counsel for the Indemnified Party
or parties shall be entitled to conduct the defense of such Indemnified Party or
parties, it being understood that both such counsel will cooperate with each
other to conduct the defense of such action or proceeding as efficiently as
possible. If an indemnifying party is not so entitled to assume the defense of
such action or does not assume such defense, after having received the notice
referred to in the first sentence of this paragraph, the indemnifying party or
parties will pay the reasonable fees and expenses of counsel for the Indemnified
Party or Parties. In such event, however, no indemnifying party will be liable
for any settlement effected without the written consent of such indemnifying
party. No indemnifying party shall, without the
consent of the Indemnified Party, consent to entry of any judgment or enter
into a settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release
from all liability in respect of such claim or litigation. If an indemnifying
party is entitled to assume, and assumes, the defense of such action or
proceeding in accordance with this paragraph, such indemnifying party shall not
be liable for any fees and expenses for counsel for the Indemnified Parties
incurred thereafter in connection with such action or proceeding.
(d) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 6 is for any reason held to be unenforceable, unavailable or
insufficient although applicable in accordance with its terms, the indemnifying
party shall contribute to the amount paid or payable by the Indemnified Party as
a result of the expense, loss, damage or liability, (i) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the Indemnified Party on the other (determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or omission relates to information supplied by the indemnifying party or the
Indemnified Party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission) or (ii) if the allocation provided by subclause (i) above is not
permitted by applicable law or provides a lesser sum to the Indemnified Party
than the amount hereinafter calculated, in the proportion as is appropriate to
reflect not only the relative fault of the indemnifying party and the
Indemnified Party, but also the relative benefits received by the indemnifying
party on the one hand and the Indemnified Party on the other, as well as any
other relevant equitable considerations, provided however, that with respect to
subclause (i), the Company and Holder shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Company and the Holder in such proportion
that the percentage of the Holder's total contribution under this Section 6(d)
shall correspond to the percentage that the public offering price of the
Holder's Registrable Shares offered by and sold under the Registration Statement
bears to the public offering price of all securities offered by and sold under
the Registration Statement. Notwithstanding the foregoing, 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. For purposes of this Section 6(d),
each Controlling Person of a Holder, if any, shall have the same rights to
contribution as such Holder, and each director of the Company, each officer of
the Company who signed the Registration Statement and each Controlling Person of
the Company, if any, shall have the same rights to contribution as the Company.
Each party entitled to contribution agrees that upon the service of a summons or
other initial legal process upon it in any action instituted against it in
respect of which contribution may be sought, it shall promptly give written
notice of such service to the party or parties from whom contribution may be
sought, but the omission so to notify such party or parties of any such service
shall not relieve the party from whom contribution may be sought from any
obligation it may have hereunder or otherwise.
(e) Survival. The obligations of the Company and the Holders under this
Section 6 shall survive the completion of any offering of Registrable Shares
pursuant to the Registration Statement.
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, directly or indirectly sell, offer to sell (including without
limitation any short sale), grant any option or otherwise transfer or dispose of
any Common Stock (other than to donees or partners of the Holder who agree to be
similarly bound) within seven (7) days prior to and for up to sixty (60) days
following the effective date of a registration statement of the Company filed
under the Securities Act or the date of an underwriting agreement with respect
to an underwritten public offering of the Company's securities (the "Stand-Off
Period"); provided, however, that:
(a) with respect to the Stand-Off Period, such agreement shall not be
applicable to Common Stock to be sold on the Holder's behalf to the public in an
underwritten offering pursuant to such registration statement;
(b) all executive officers and directors of the Company then holding
Common Stock of the Company shall enter into similar agreements;
(c) the Company shall use commercially reasonable efforts to obtain
similar agreements from each 5% or greater shareholder of the Company; and
(d) the Holders shall be allowed any concession or proportionate
release allowed to any (i) officer, (ii) director or (iii) other 5% or greater
shareholder that entered into similar agreements.
In order to enforce the foregoing covenant, the Company shall have the
right to place restrictive legends on the certificates representing the Common
Stock subject to this Section 7 and to impose stop transfer instructions with
respect to the Registrable Shares and such other Common Stock of each Holder
(and the Common Stock or securities of every other person subject to the
foregoing restriction) until the end of such period.
8. Rule 144. If the Company, for any reason fails to file the Registration
Statement on a timely basis and cause it to be declared effective by the
Commission as set forth herein, the Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange Act
and that it will take such further action as any Holder may reasonably request,
all to the extent required from time to time to enable Holders to sell
Registrable Shares without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 under the Securities Act,
as such rule may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission. Upon the request of any Holder,
the Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
except in a written instrument executed by the Company and the Holders of a
majority of the then outstanding Registrable Shares. No waiver of rights or
consent to departure from the provisions of this Agreement shall be effective
unless set forth in a written instrument signed by the party to be charged
therewith; provided, however, that a waiver of rights or consent to departure
from the
terms hereof on behalf of the Holders shall be effective if signed by the
Holders of a majority of the then outstanding Registrable Shares.
(b) Notices. All notices and other communications provided for herein
shall be made in writing by hand-delivery, next-day air courier, certified
first-class mail, return receipt requested, telex or telecopy;
(i) if to the Company, to Highland Hospitality Corporation,
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000, ATTN: Chief
Executive Officer with a copy to the General Counsel; and
(ii) if to any other person who is then the Holder of any
Registrable Shares, to the address of the Holder as provided in the
Warrant Register (as defined in the Warrant Agreement) or as provided
in the stock transfer records of the Company's transfer agent.
Except as otherwise provided in this Agreement, all such notices and
communications shall be deemed to have been duly given (v) when delivered by
hand, if personally delivered, (w) one Business Day after being timely delivered
to a next-day air courier, (x) five Business Days after being deposited in the
mail, postage prepaid, if mailed, (y) when answered back, if telexed, or (z)
when receipt is acknowledged by the recipient's telecopier machine or otherwise,
if telecopied.
(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 and shall inure to the benefit of each Holder. The Company may assign
its rights or obligations hereunder to any successor to the Company's business
or with the prior written consent of Holders of a majority of the then
outstanding Registrable Shares. Notwithstanding the foregoing, no assignee of
the Company shall have any of the rights granted under this Agreement until such
assignee shall acknowledge its rights and obligations hereunder by a signed
written agreement pursuant to which such assignee accepts such rights and
obligations.
(d) 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.
(e) Governing Law; Jurisdiction. 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. The parties hereto irrevocably
consent to the jurisdiction of the federal and state courts located in
Alexandria, Virginia in any suit or proceeding based on or arising under this
Agreement and irrevocably agree that any and all claims arising out of this
Agreement or related to the transactions contemplated by this Agreement shall be
determined exclusively in such courts. The parties hereto irrevocably waive the
defense of an inconvenient forum to the maintenance of such suit or proceeding.
(f) 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 reasonable efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the terms of this
Agreement. All references made in this Agreement to "Section" refer to such
Section of this Agreement, unless expressly stated otherwise.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed as of the date first written above.
HIGHLAND HOSPITALITY CORPORATION
By:
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Name: Xxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By:
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Name:
Title:
