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Exhibit 10.14
STOCK PURCHASE AGREEMENT
This Agreement is made and entered into on September 27, 1999 between
Peachtree FiberOptics, Inc. d/b/a xXxxxxxx.xxx, a Delaware corporation (the
"Seller"), and River Rapids LTD (the "Buyer").
RECITAL
The Seller desires to sell to the Buyer, and the Buyer desires to
purchase from the Seller (i) 100,000 shares (the "Shares" or "Common Shares") of
Seller's common stock, par value $.01 per share ("Common Stock"), and (ii) the
right (the "Option") to purchase an additional 900,000 shares of Common Stock
(the "Option Shares"), upon the terms and subject to the conditions contained
herein.
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF SHARES
1.1 SHARES TO BE ACQUIRED. Subject to the terms and conditions
contained herein, the Seller shall sell, assign, transfer, and convey to the
Buyer, free and clear of all pledges, liens, security interests, encumbrances,
or other restrictions arising from the Seller (except restrictions on resale
under state or federal securities laws), and the Buyer shall purchase from the
Seller (a) the Shares and (b) the Option, the terms of which are set forth in
Section 1.2 hereof.
1.2 THE OPTION. The Buyer has the right to exercise the Option to
purchase all but not less than all of the Option Shares, commencing on the
"Funding", as defined herein below, and terminating at 5:00 P.M. (Miami, Florida
time) on September 27, 2002 (the "Exercise Period"). The exercise price of the
Option is (the "Option Exercise Price") is a follows:
300,000 common shares of Seller at $3.00 per share;
300,000 common shares of Seller at $4.00 per share; and
300,000 common shares of Seller at $5.00 per share
For purposes of this Agreement "Funding" shall be defined as the date upon which
Seller: (i) has sold substantially all its business or otherwise merged with or
been acquired by a third party; or (ii) has received on a cumulative basis net
proceeds (net of cash commissions) from the sale of its capital stock (excluding
the Shares purchased pursuant to Section 1.1) equal to or greater than
$5,000,000 including any capital transaction, or series of capital transactions,
from any source whatsoever. For purposes of this Agreement, the merger of
vFinance Holdings, Inc. (xXxxxxxx.xxx) and/or Union Atlantic LC into Seller
shall not be considered a "Funding". In the event there is no Funding by Seller
within 90 days from the date of this Agreement, the Exercise Period shall
terminate immediately and the Option shall be cancelled and shall deemed null
and void and of no further force and effect. In order to exercise the Option,
the Option Exercise Price must be paid in full by wire transfer of immediately
available funds to a bank designated by the Seller during the Exercise Period.
The Seller hereby represents that the Option Shares will be free and clear of
all pledges, liens, security interests, encumbrances or other restrictions
arising from the Seller (except restrictions on resale under state or federal
securities laws). Upon exercise of the Option and payment of the Option Exercise
Price, the Seller shall deliver to the Buyer a certificate representing the
Option Shares. The Option Shares shall be issued in the name of River Rapids
LTD.
1.3 CLOSING. The closing of the purchase and sale of the Shares (the
"Closing") shall occur simultaneously with the execution of this Agreement by
the parties hereto.
1.4 DELIVERY OF THE SHARES. On the date of the Closing, the Seller and
Buyer agree that the Seller shall
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deliver to the Buyer a certificate representing the Shares, issued in the name
of the Hare & Co., and the Buyer shall deliver the purchase price for the Shares
set forth in Article II hereof.
1.5 REGISTRATION RIGHTS. The Buyer shall have piggyback registration
rights with respect to the Shares and the Options Shares (collectively, "Common
Shares") a described in Section 5.9 of this Agreement.
ARTICLE II
PURCHASE PRICE AND PAYMENT
The aggregate purchase price for the Shares shall be $250,000. Such
purchase price shall be payable on the date of the Closing by wire transfer of
immediately available funds to a bank designated by the Seller.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SELLER
As an inducement to the Buyer to enter into this Agreement and to
consummate the transactions contemplated hereby, the Seller represents, warrants
and covenants as follows:
3.1 CAPITALIZATION; VALIDITY OF SHARES. The Seller has authorized
capital stock consisting of 20,000,000 shares of Common Stock and shares of
preferred stock, par value $.01 per share, of which 496,334 shares of Common
Stock are issued and outstanding prior to the execution of this Agreement and no
shares of preferred stock are issued and outstanding. All of the issued and
outstanding shares of Common Stock are duly and validly authorized and issued,
fully paid and non-assessable, were offered, issued, and sold in accordance with
applicable federal and state securities laws and were not issued in violation of
the preemptive rights of any stockholders of the Seller. The Shares and the
Option Shares to be issued and delivered to the Buyer in accordance with the
terms contained herein, when so issued and delivered, will be duly and validly
authorized and issued, fully paid and non-assessable, free and clear of any
security interest, lien, encumbrance, right, or restriction whatsoever arising
from the Seller (except restrictions on resale under state or federal securities
laws). The Seller has entered into Letters of Intent to merge into it vFinance
Holdings, Inc. (xXxxxxxx.xxx) and Union Atlantic LC. It is anticipated that post
merger there will be approximately 8,000,000 shares issued and outstanding. The
Seller also anticipates entering into a Stock Option Plan (the "Plan") with a
minimum of 1,000,000 shares of Common Stock authorized for issuance under the
Plan.
3.2 ORGANIZATION AND GOOD STANDING. The Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
3.3 AUTHORIZATION; VALIDITY. The Seller has full corporate power and
authority to enter into this Agreement and to perform all of the Seller's
undertakings herein set forth, including, without limitation, the full corporate
power and authority to issue the Shares and the Option Shares to the Buyer free
and clear of any security interest, liens, encumbrances, rights, or restrictions
arising from the Seller. The execution of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Seller. This Agreement is the legal, valid,
and binding obligation of the Seller, enforceable in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally, and except as enforcement of any particular remedy may be limited by
the application of equitable principles. Neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will
(a) violate the Articles of Incorporation or Bylaws of the Seller; (b) violate
or constitute a default under any provision of, or conflict with, or result in
the acceleration of any obligation under, any mortgage, deed of trust, note,
loan, lease, or agreement to which the Seller is a party or by which it or any
of its properties or assets may be bound, which violation, default, or conflict
would result in a material adverse effect on the business, assets, operations,
or condition of the Seller; or (c) violate any order, ruling, decree, judgment,
arbitration award, or stipulation to which the Seller is subject, which
violation would result in a material adverse effect on the business, assets,
operations or condition of the Seller.
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ARTICLE IV
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE BUYER
As an inducement to the Seller to enter into this Agreement and to
consummate the transactions contemplated hereby, the Buyer represents, warrants
and covenants as follows:
4.1 STATUS OF SHARES AND OPTION SHARES. The Buyer understands that he
must bear the economic risk of the purchase of the Shares and the Option Shares
for an indefinite period of time because: (a) neither the Shares nor the Option
Shares has been registered under the Securities Act of 1933 (the "1933 Act") and
applicable state securities laws; (b) the Seller neither has an obligation to
register a sale of the Shares or the Option Shares nor has the Seller agreed to
do so in the future; (c) the exemption provided by Rule 144 under the 1933 Act
is not presently available for the resale of the Shares, the Option or the
Option Shares, and it is unlikely that such exemption will be available at any
time in the future with respect to any proposed transfer of the Shares, the
Option or the Option Shares, and (d) Seller is under no obligation to perfect
any exemption for resale of any one of such securities.
4.2 FLORIDA TRANSACTION. The Buyer first learned of the offering
contemplated herein in the State of Florida and received all information
relating to the offering and the Seller in the State of Florida and intends that
no state securities laws, other than those of the State of Florida, shall govern
this transaction.
4.3 RISK OF LOSS. The Buyer understands the highly speculative nature
of the risks involved in the proposed investment and that the Seller may not
prove to be a successful business. The Buyer can bear the economic risk of
losing his entire investment in such securities. The Buyer has such knowledge
and experience in financial and business matters so as to be capable of
evaluating the merits and risks of an investment in the Shares, the Option and
the Option Shares.
4.4 INFORMATION. The Buyer has been afforded prior to entering into
this transaction, the opportunity to ask questions of, and received answers
from, the Seller and to obtain any information necessary or desirable in order
for the Buyer to make an informed investment decision with respect to entering
into this transaction.
4.5 ACCREDITED INVESTOR. The Buyer is an "accredited investor" as
defined in Rule 501 of Regulation D under the 1933 Act.
4.6 RESALE RESTRICTIONS. The Shares and the Option Shares (if the
Option is exercised) are and will be acquired by the Buyer not with a view to
any distribution or resale thereof in any transaction which would be in
violation of the 1933 Act, and the rules promulgated thereunder, or any state
securities statute.
4.7 SECURITIES NOT REGISTERED. The Buyer understands that the Shares
and the Option Shares have not and will not be registered under the 1933 Act or
any state securities laws, and that he must therefore bear the economic risk of
such investment indefinitely, unless a subsequent disposition thereof is
registered under the 1933 Act or is exempt from registration, and that the
Shares and the Option Shares will bear the following legend:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933 or under any other
applicable securities laws and may not be sold, transferred,
pledged, encumbered in any way or otherwise disposed of except
pursuant to the Securities Act of 1933, the securities laws of
any applicable jurisdiction, and the rules and regulations
promulgated under the Securities Act of 1933 and any other
applicable jurisdiction's laws."
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ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 NOTICES. All notices, requests, demands, and other communications
required or permitted hereunder shall be in writing and shall be deemed to have
been duly given if delivered by hand or by electronic transmission. If sent by
reliable over-night delivery service and addressed as follows, or at such other
addresses as the parties hereto may from time to time designate in writing, such
notices, requests, demands, and other communications shall be deemed delivered
the next business day after being so duly sent:
To Buyer: Trident Trust
00-00 Xxxxx Xxxx
Xxxxxxx, Xxxx xx Xxx
Xx000XX.
Attn: Xxxxxx Xxxxx
Fax 000 000 000 000 000
To Seller: Peachtree FiberOptics, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
000-000-0000
Attn: Xxxxxxx X. Xxxxxxx, President
5.2 PRIOR AGREEMENTS. This Agreement supersedes all prior discussions
and agreements between the Buyer and the Seller with respect to the purchase of
the Shares, the Option and the Option Shares and all other matters contained
herein, and this Agreement contains the sole and entire agreement between the
parties hereto with respect to the transactions contemplated herein.
5.3 MODIFICATIONS. This Agreement may be modified or amended only by a
written instrument executed by the parties hereto.
5.4 COUNTERPARTS, HEADINGS, ETC. This Agreement may be executed
simultaneously in any number of counterparts, each of which shall be deemed to
be an original, but all of which shall constitute one and the same instrument.
The headings herein are for convenience of reference only and shall not be
deemed part of this Agreement.
5.5 ASSIGNMENT. The rights and obligations of the parties to this
Agreement, including, but not limited to, the Option, are not assignable.
5.6 BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto, their respective successors and
permitted assigns. No party hereto may assign its or his rights or obligations
hereunder without the express prior written consent of the other party hereto.
5.7 GOVERNING LAW. The validity and effect of this Agreement and the
rights and obligations of the parties hereto shall be governed by and construed
and enforced in accordance with the laws of the State of Florida.
5.8 SEVERABILITY. Whenever possible, each provision of this Agreement
will interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to the
extend of such prohibition or invalidity, without invalidating the remainder of
this Agreement.
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5.9 PIGGY-BACK REGISTRATION RIGHTS.
(a) THE SELLER OBLIGATIONS.
i. REGISTRATION. If at any time after the date hereof
the Seller shall file with the Securities and Exchange Commission (the "SEC") a
registration statement (a "Registration Statement") under the Securities Act
relating to an offering for its own account or the account of others under the
Securities Act of any of its equity securities (other than on Form S-4 or Form
S-8 or their then equivalents relating to equity securities to be issued solely
in connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee benefit
plans), the Seller shall send to Buyer written notice of such determination and,
if within fifteen (15) days after the date of such notice, Buyer shall so
request in writing, the Seller shall include in such Registration Statement all
or any part of the Common Shares Buyer requests to be registered, except that
if, in connection with any underwritten public offering, the managing
underwriter(s) thereof shall impose a limitation on the number of Common Shares
which may be included in the Registration Statement because, in such
underwriter(s)' judgment, marketing or other factors dictate such limitation is
necessary to facilitate public distribution, then the Seller shall be obligated
to include in such Registration Statement only such limited portion of the as
the underwriter shall permit (limited to zero if necessary). If an offering in
connection with which is entitled to registration under this Section 5.9(a)(i)
is an underwritten offering, then Buyer shall, unless otherwise agreed by the
Seller, offer and sell such Common Shares in an underwritten offering using the
same underwriter or underwriters and, subject to the provisions of this
Agreement, on the same terms and conditions as other Common Shares included in
such underwritten offering.
ii. AMENDMENTS AND SUPPLEMENTS; MAINTAIN
EFFECTIVENESS. The Seller shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration Statement
as may be necessary to keep the Registration Statement effective at all times
for a period of six (6) months following the effective date thereof (the
"Registration Period"), except during any Disclosure Delay Period (as defined in
Section 5.9(a)(iii)), and, during such period, comply with the provisions of the
Securities Act with respect to the disposition of all Common Shares covered by
the Registration Statement until such time as all of such Common Shares have
been disposed of in accordance with the intended methods of disposition by Buyer
thereof as set forth in the Registration Statement.
iii. DISCLOSURE DELAY PERIOD. If, at any time prior
to the expiration of the Registration Period, in the good faith reasonable
judgment of the Seller's Board of Directors, the disposition of Common Shares
would require the premature disclosure of material non-public information which
may reasonably be expected to have an adverse effect on the Seller, then the
Seller shall not be required to maintain the effectiveness of or amend or
supplement the Registration Statement for a period (a "Disclosure Delay Period")
expiring upon the earlier to occur of (A) the date on which such material
information is disclosed to the public or ceases to be material or (B) subject
to Section 5.9(a)(iv) hereof, up to ninety (5.90) calendar days after the date
on which the Seller provides a notice to Buyer under Section 5.9(a)(iv) hereof
stating that the failure to disclose such non-public information causes the
prospectus included in the Registration Statement, as then in effect, to include
an untrue statement of a material fact or to omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading.
iv. NOTICE OF DISCLOSURE DELAY PERIOD. The Seller
will give prompt written notice, to Buyer of each Disclosure Delay Period. Buyer
agrees that, upon receipt of such notice prior to Buyer's disposition of all
such Common Shares will forthwith discontinue disposition of such Common Shares
pursuant to the Registration Statement, and will not deliver any prospectus
forming a part thereof in connection with any sale of such Common Shares until
the expiration of such Disclosure Delay Period. Notwithstanding anything in this
Section 5.9 to the contrary, there shall not be more than an aggregate of One
Hundred Eighty (180) calendar days in any twelve (12) month period during which
the Seller is in a Disclosure Delay Period.
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v. COPIES OF FILINGS AND CORRESPONDENCE. The Seller
shall furnish to Buyer if its Common Shares are included for resale in the
Registration Statement (A) promptly after the same is prepared and publicly
distributed, filed with the SEC, or received by the Seller, one copy of the
Registration Statement and any amendment thereto, each preliminary prospectus
and prospectus and each amendment or supplement thereto, and each item of
correspondence from the SEC or the staff of the SEC which comments upon or
requests information relating to Buyer and/or the Common Shares (including,
without limitation, the resale and plan of distribution hereof), in each case
relating to such Registration Statement (other than any portion, if any, thereof
which contains information for which the Seller has sought confidential
treatment), (B) on the date of effectiveness of the Registration Statement or
any amendment thereto, a notice stating that the Registration Statement or
amendment has been declared effective, and (C) such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as such Buyer may reasonably
request in order to facilitate the disposition of the Common Shares by Buyer.
vi. BLUE SKY. The Seller shall use its best efforts
to (A) register and qualify the Common Shares covered by the Registration
Statement under such other securities or "blue sky" laws of such jurisdictions
in the United States as Buyer reasonably requests, (B) prepare and file in those
jurisdictions such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration Period, (C) take such
other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and (D)
take all other actions reasonably necessary or advisable to qualify the Common
Shares for sale in such jurisdictions; PROVIDED, HOWEVER, that the Seller shall
not be required in connection therewith or as a condition thereto to (A) qualify
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 5.9(a)(vi), (B) subject itself to general taxation
in any such jurisdiction, (C) file a general consent to service of process in
any such jurisdiction, (D) provide any undertakings that cause the Seller undue
expense or burden, or (E) make any change in its charter or bylaws, which in
each case the Board of Directors of the Seller determines to be contrary to the
best interests of the Seller and its stockholders.
vii. EVENTS AFFECTING PROSPECTUS. As promptly as
practicable after becoming aware of such event, the Seller shall notify Buyer of
the happening of any event, of which the Seller has knowledge, as a result of
which the prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omission to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and if such Registration Statement is supplemented or amended to
correct such untrue statement or omission, to deliver such number as Buyer may
reasonably request.
viii. NOTIFICATION OF AMENDMENT OR SUPPLEMENT. The
Seller shall, as promptly as practical after becoming aware of such event
described in Section 5.9(vii), notify Buyer of the issuance of such order and
the resolution thereof (and if such Registration Statement is supplemented or
amended, deliver such number of copies of such supplement or amendment to Buyer
as Buyer may reasonably request).
ix. REVIEW BY BUYER'S COUNSEL. The Seller shall
permit a single firm of counsel designated by Buyer to review the Registration
Statement and all amendments and supplements thereto a reasonable period of time
prior to their filing with the SEC.
x. BUYER'S DUE DILIGENCE; CONFIDENTIALITY OF THE
SELLER INFORMATION. The Seller shall make available for inspection by (A) Buyer,
(B) one firm of attorneys and one firm of accountants or other agents retained
by Buyer (collectively, the "Inspectors") all pertinent financial and other
records, and pertinent corporate documents and properties of the Seller
(collectively, the "Records"), as shall be reasonably deemed necessary by each
Inspector to enable each Inspector to exercise its due diligence responsibility,
and cause the Seller's officers, directors and employees to supply all
information which Buyer may reasonably request for purposes of such due
diligence; PROVIDED, HOWEVER, that each Inspector shall hold in confidence and
shall not make
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any disclosure (except to Buyer) of any Record or other information which the
Seller determines in good faith to be confidential, and of which determination
the Inspector so notified, unless (A) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in any Registration
Statement, (B) the release of such Records is ordered pursuant to a subpoena or
other order from a court or government body of competent jurisdiction, or (C)
the information in such Records has been made generally available to the public
other than by disclosure in violation of this or any other agreement. The Seller
shall not be required to disclose any confidential information in such Records
to any Inspector until and unless such Inspector shall have entered into a
confidentiality agreements with the Seller with respect thereto, substantially
in the form of this Section5.9(a)(x). Buyer agrees that it shall, upon learning
that disclosure of such Records is sought in or by a court or governmental body
of competent jurisdiction or through other means, give prompt notice to the
Seller and allow the Seller, at its expense, to undertake appropriate action to
prevent disclosure of, or to obtain a protective order for, the Records deemed
confidential. Nothing herein shall be deemed to limit Buyer's ability to sell
Common Shares in a manner which is otherwise consistent with applicable laws and
regulations.
xi. CONFIDENTIALITY OF BUYER INFORMATION. The Seller
shall hold in confidence and not make any disclosure of information concerning
Buyer provided to the Seller unless (A) disclosure of such information is
necessary to comply with federal or state securities laws, (B) the disclosure of
such information is necessary to avoid or correct a misstatement or omission in
any Registration Statement, (C) the release of such information is ordered
pursuant to a subpoena or other order from a court or governmental body of
competent jurisdiction, (D) such information has been made generally available
to the public other than by disclosure in violation of this or any other
agreement, or (E) Buyer consents to the form and content of any such disclosure.
The Seller agrees that it shall, upon learning that disclosure of such
information concerning Buyer is sought in or by a court or governmental body of
competent jurisdiction or through other means, give prompt notice to Buyer prior
to making such disclosure, and allow Buyer, at its expense, to undertake
appropriate action to prevent disclosure of, or to obtain a protective order
for, such information.
xii. COMPLIANCE WITH LAWS. The Seller shall comply
with all applicable laws related to a Registration Statement and offering and
sale of securities and all applicable rules and regulations of governmental
authorities in connection therewith (including, without limitation, the
Securities Act and the Securities Exchange Act of 15.934, as amended, and the
rules and regulations promulgated by the SEC.)
(b) OBLIGATIONS OF BUYER. In connection with a registration of
the Common Shares Buyer shall have the following obligations:
i. BUYER INFORMATION. It shall be a condition
precedent to the obligations of the Seller to complete the registration pursuant
to Section 5.9 that Buyer shall furnish to the Seller such information regarding
itself, the Common Shares and the intended method of disposition of the as shall
be required to effect the registration of such Registrable Securities and shall
execute such documents in connection with such registration as the Seller may
reasonably request. At least five (5) business days prior to the first
anticipated filing date of the Registration Statement, the Seller shall notify
Buyer of the information the Seller requires from Buyer.
ii. COOPERATION. Buyer, agrees to cooperate with the
Seller as requested by the Seller in connection with the preparation and filing
of the Registration Statement hereunder, unless Buyer does not include any of
the Common Shares in the Registration Statement.
iii. UNDERWRITTEN OFFERING. In the event Buyer
determines to engage the services of an underwriter, Buyer agrees to enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, including, without limitation, customary indemnification and
contribution obligations, with the managing underwriter of such offering and
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of the Common Shares.
iv NO DISPOSITION OF COMMON SHARES. Buyer agrees
that, upon receipt of any
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notice from the Seller of the happening of any event of the kind described in
Sections 5.9(a)(vii) or 5.9(a)(viii), Buyer will immediately discontinue
disposition of Common Shares pursuant to the Registration Statement covering the
resale of such Registrable Securities until Buyer's receipt of the copies of the
supplemented or amended prospectus contemplated by Sections 5.9(a)(vii) or
5.9(a)(viii) and, if so directed by the Seller, Buyer shall deliver to the
Seller or destroy (and deliver to the Seller a certificate of destruction) all
copies in Buyer's possession, of the prospectus covering such Common Shares
current at the time of receipt of such notice.
v. METHOD OF UNDERWRITTEN DISTRIBUTION. Buyer may not
participate in any underwritten distribution of the Common Shares unless Buyer
(A) agrees to sell the Common Shares on the basis provided in any underwriting
arrangements in usual and customary form entered into by the Seller, (B)
completes, in a manner reasonably acceptable to the Seller, and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (C) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable by the
Seller pursuant to Section 5.9(c) below.
(c) EXPENSES OF REGISTRATION. All reasonable expenses, other
than underwriting discounts and commissions, incurred in connection with
registrations, filings or qualifications, relating to one (1) Registration
Statement pursuant to Section 5.9, except that if a portion of Buyer Shares are
not permitted to be included in one (1) Registration Statement by an underwriter
as provided in Section 5.9(a)(i), then relating to the least number of
Registration Statements which will cover the resale of all the Common Shares,
including all registration, listing and qualifications fees, printers and
accounting fees, the fees and disbursements of counsel for the Seller hereof,
shall be borne by the Seller.
(d) INDEMNIFICATION. In the event any Common Shares are
included for resale in a Registration Statement under this Agreement:
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i. THE SELLER INDEMNIFICATION. To the extent
permitted by law, the Seller will indemnify, hold harmless and defend (A) Buyer
and (B) the directors, officers, partners, members, employees, agents and each
person who controls Buyer within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, if any, (each, an "Indemnified Person"),
against any joint or several losses, claims, damages, liabilities or expenses
(collectively, together with actions, proceedings or inquiries by any regulatory
or self-regulatory organization, whether commenced or threatened, in respect
thereof, "Claims") to which any of them may become subject insofar as such
Claims arise out of or are based upon: (A) any untrue statement or alleged
untrue statement of a material fact in a Registration Statement or the omission
or alleged omission to state therein a material fact required to be stated or
necessary to make the statements therein not misleading, (B) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus if used prior to the effective date of such Registration
Statement, or contained in the final prospectus (as amended or supplemented, if
the Seller files any amendment thereof or supplement thereto with the SEC) or
the omission or alleged omission to state therein any material fact necessary to
make the statements made therein, in light of the circumstances under which the
statements therein were made, not misleading, or (C) any violation or alleged
violation by the Seller of the Securities Act, the Exchange Act, any other
applicable securities law, including, without limitation, any state securities
law, or any rule or regulation thereunder relating to the offer or sale of the
Common Shares (the matters in the foregoing clauses (A) through (C) being,
collectively, "Violations"). Subject to the restrictions set forth in Section
5.9(d)(iii) with respect to the number of legal counsel, the Seller shall
reimburse Buyer and each other Indemnified Person, promptly as such expenses are
incurred and are due and payable, for any reasonable legal fees or other
reasonable expenses incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 5.9(d)(i): (A)
shall not apply to a Claim arising out of or based upon a Violation which occurs
in reliance upon and in conformity with information furnished in writing to the
Seller by such Indemnified Person expressly for use in the Registration
Statement or any such amendment thereof or supplement thereto; (B) shall not
apply to amounts paid in settlement of any Claim if such settlement is effected
without the prior written consent of the Seller; and (C) with respect to any
preliminary prospectus, shall not inure to the benefit of any Indemnified Person
if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented, if such corrected prospectus was timely made
available by the Seller pursuant to Section 5.9(a)(v) hereof, and the
Indemnified Person was promptly advised in writing not to use the incorrect
prospectus prior to the use giving rise to a Violation and such Indemnified
Person, notwithstanding such advice, used it. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
the Indemnified Person and shall survive the transfer of the Common Shares by
Buyer. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 5.9(d)(i) with respect to
any preliminary prospectus shall not inure to the benefit of any Indemnified
Party if the untrue statement or omission of material fact contained in the
preliminary prospectus was corrected on a timely basis in the prospectus, as
then amended or supplemented, and the Indemnified Party failed to utilize such
corrected prospectus.
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ii BUYER INDEMNIFICATION. In connection with any
Registration Statement in which Buyer is participating, Buyer agrees to
indemnify, hold harmless and defend, to the same extent and in the same manner
set forth in Section 5.9(d)(i), the Seller, each of its directors, each of its
officers who signs the Registration Statement, its employees, agents and each
person, if any, who controls the Seller within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, and any other stockholder
selling securities pursuant to the Registration Statement or any of its
directors or officers or any person who controls such stockholder within the
meaning of the Securities Act or the Exchange Act (collectively and together
with an Indemnified Person, an "Indemnified Party"), against any Claim to which
any of them may become subject, under the Securities Act, the Exchange Act or
otherwise, insofar as such Claim arises out of or is based upon any Violation,
in each case to the extent (and only to the extent) that such Violation occurs
in reliance upon and in conformity with written information furnished to the
Seller by Buyer expressly for use in connection with such Registration
Statement, and subject to Section 5.9(d)(iii), Buyer will reimburse any legal or
other expenses (promptly as such expenses are incurred and are due and payable)
reasonably incurred by them in connection with investigating or defending any
such Claim; PROVIDED, HOWEVER, that the indemnity agreement contained in this
Section 5.9(d)(ii) shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of Buyer, which
consent shall not be unreasonably withheld. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of such
Indemnified Party and shall survive the transfer of the Common Shares by Buyer.
iii. Promptly after receipt by an Indemnified Person
or Indemnified Party under this Section 5.9(d) of notice of the commencement of
any action (including any governmental action), such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to made against any
indemnifying party under this Section 5.9(d), deliver to the indemnifying party
a written notice of the commencement thereof, and the indemnifying party shall
have the right to participate in, and, to the extent the indemnifying party so
desires, to assume control of the defense thereof with counsel mutually
satisfactory to the indemnifying party and the Indemnified Person or the
Indemnified Party, as the case may be; PROVIDED, HOWEVER, that such indemnifying
party shall not be entitled to assume such defense and an Indemnified Person or
Indemnified Party shall have the right to retain its own counsel with the
reasonable fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
conflicts of interest between such Indemnified Person or Indemnified Party and
any other party represented by such counsel in such proceeding or the actual or
potential defendants in, or targets of, any such action include both the
Indemnified Person or the Indemnified Party and the indemnifying party and any
such Indemnified Person or Indemnified Party reasonably determines that there
may be legal defenses available to such Indemnified Person or Indemnified Party
which are different from or in addition to those available to such indemnifying
party. The indemnifying party shall pay for only one separate legal counsel for
the Indemnified Persons or the Indemnified Parties, as applicable, and such
legal counsel shall be selected by Buyer, if Buyer or any Indemnified Person is
entitled to indemnification hereunder, or by the Seller, if the Seller or an
Indemnified Party is entitled to indemnification hereunder, as applicable. The
failure to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action shall not relieve such indemnifying
party of any liability to the Indemnified Person or Indemnified Party under this
Section 5.9(d), except to the extent that the indemnifying party is actually
prejudiced in its ability to defend such action. The indemnification required by
this Section 5.9(d) shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as such expense, loss, damage
or liability is incurred and is due and payable.
(e) CONTRIBUTION. To the extent any indemnification by an
indemnifying party is prohibited or limited by law, the indemnifying party
agrees to make the maximum contribution with respect to any amounts for which it
would otherwise be liable under Section 5.9(d) to the fullest extent permitted
by law; PROVIDED, HOWEVER, that no contribution shall be made under
circumstances where the indemnifying party would not have been liable for
indemnification under the fault standards set forth in Section 5.9(d).
(f) EXEMPTION FROM REGISTRATION. The provisions of Section
5.9(a) through (e)
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notwithstanding, the Seller shall have no obligation to register the resale of
the Common Shares to the extent the Common Shares may be resold without
registration without violating Section 5 of the Securities Act pursuant to Rule
144 promulgated thereunder or any other exemption or exception from registration
under the Securities Act.
PEACHTREE FIBEROPTICS, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Xxxxxxx X. Xxxxxxx, President
RIVER RAPIDS LTD.
By: /s/
--------------------------------
Authorized Representative
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