EXHIBIT 10.15
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into this 12th day of September, 1996 by and among Transeastern
Properties, Inc., a Florida corporation (the "Company"), Xxxxxx X. Xxxxxxx,
Xxxxxx X. Xxxxxxx, and Xxxxxx Xxxxx, Xx. (collectively the "Executive
Shareholders"), and the persons and entities listed on the signature pages
hereto who, on the date hereof are: the holders of all of the Company's Series A
Preferred Stock, par value $.01 per share (the "Series A Preferred Stock"); the
holders of all of the Company's Series B Preferred Stock, par value $.01 per
share (the "Series B Preferred Stock"); and, the holders of Common Stock and
Warrants purchased pursuant to the Common Stock Purchase Agreement dated April
15, 1996. Each holder of the Series A Preferred Stock is hereinafter referred to
as a "Series A Shareholder," and all such holders are collectively referred to
as the "Series A Shareholders." Each holder of the Series B Preferred Stock is
hereinafter referred to as a "Series B Shareholder," and all such holders are
collectively referred to as the "Series B Shareholders." Each holder of Common
Stock and Warrants purchased in the 1996 offering (the "1996 Offering") is
hereinafter referred to as an "Investor," and all such holders are collectively
referred to as the "Investors."
BACKGROUND
The parties hereto wish to provide for certain registration rights with
respect to securities of the Company.
AGREEMENT
For and in consideration of the premises and mutual covenants and
agreements and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. CERTAIN DEFINITIONS. As used herein, the following terms shall have
the meaning thereafter ascribed:
"COMMISSION" shall mean the Securities and Exchange Commission or any
other Federal agency at the time administering the Securities Act of 1933, as
amended (the "Securities Act").
"HOLDER" shall mean any holder of Registrable Securities.
"INITIATING HOLDER" shall mean each of Xxxxxxxxxxx Xxxxxx ("Xxxxxx")
and Xxxxxxx Xxxxxxxxxx, ("Xxxxxxxxxx") but only for as long as each is an
"affiliate" of the Company for purposes of Rule 144 promulgated under the
Securities Act. At such time as Xxxxxx is no longer an affiliate of the Company
for purposes of Rule 144, Xxxxxx shall no longer be an Initiating Holder. At
such time as Xxxxxxxxxx is no longer an affiliate of the Company for purposes of
Rule 144, Xxxxxxxxxx shall no longer be an Initiating Holder.
"OTHER SHAREHOLDER" shall mean any holder of Company securities who is
not a Holder.
"RESTRICTED SECURITIES" shall mean the securities of the Company
required to bear or bearing the legend set forth in Section 2 hereof.
"REGISTRABLE SECURITIES" shall mean (a) all shares of Common Stock
issued upon the exercise of Amended and Restated Warrants (collectively "Series
A Warrants") issued to the Series A Shareholders in connection with the issuance
and sale of Series A Preferred Stock, (b) all shares of Common Stock issued upon
the exercise of Warrants (the "Series B Warrants") issued to the Series B
Shareholders in connection with the issuance and sale of Series B Preferred
Stock and all shares of Common Stock acquired directly from the Company prior to
the date hereof by Series B Shareholders, (c) all shares of Common Stock issued
to the Investors, and all shares of Common Stock issued upon the exercise of
Warrants (the "Investors' Warrants") issued to the Investors in connection with
the issuance and sale of Common Stock in the 1996 Offering, (d) all shares of
Common Stock owned by the Executive Shareholders, and (e) all shares of Common
Stock issued in respect of the foregoing securities upon any stock split, stock
dividend, merger, consolidation, recapitalization, or similar event, EXCLUDING
all such shares which (i) have been registered under the Securities Act and
disposed of in accordance with the registration statement covering them, or (ii)
have been publicly sold pursuant to Rule 144 under the Securities Act.
The terms "REGISTER," "REGISTERED" and "REGISTRATION" shall refer to a
registration effected by preparing and filing a 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.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in compliance with Sections 4.1 and 4.2 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses, the fees and expenses of
one counsel for all the selling Holders and other security holders (as a group)
and the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of the
Company, which shall be paid in any event by the Company).
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and all fees and
disbursements of counsel for any Holder (other than the fees and disbursements
of counsel included under Registration Expenses).
2. RESTRICTIVE LEGEND. Each certificate representing Common Stock held
by the Series A Shareholders, the Series B Shareholders, the Executive
Shareholders, or the Investors shall (unless the securities evidenced by such
certificate shall have been registered under the Securities Act) be stamped or
otherwise imprinted with a legend in the following form (in addition to any
legend required under applicable state securities laws):
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "ACT") OR ANY STATE SECURITIES LAWS. NO TRANSFER OF SAID SECURITIES
SHALL BE PERMITTED IN THE ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE LAWS COVERING THE SHARES PROPOSED TO BE
TRANSFERRED OR (II) AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
TRANSFER WILL NOT REQUIRE COMPLIANCE WITH THE REGISTRATION REQUIREMENTS OF THE
ACT AND OF ANY APPLICABLE STATE LAWS.
Upon request of a holder of such a certificate, the Company shall
remove the foregoing legend from the certificate or issue to such holder a new
certificate therefor free of any transfer legend, if, (i) with such request, the
Company shall have received either an opinion referred to in Section 3 hereof to
the effect that any transfer by such holder of the securities evidenced by such
certificate will not violate the Securities Act and applicable state securities
laws, or (ii) in accordance with paragraph (k) of Rule 144, such holder is not
and has not during the last three months been an affiliate of the Company and
such holder has held the securities represented by such certificate for a period
of at least three years. The Company will use reasonable efforts to assist any
holder in complying with the provisions of this Section 2 for removal of the
legend set forth above.
3. NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities by acceptance thereof agrees to comply in all
respects with the provisions of this Section 3 of this Agreement. Prior to any
proposed transfer of any Restricted Securities (other than under circumstances
described in Sections 4.1 or 4.2 hereof), the holder thereof shall give written
notice to the Company of such holder's intention to effect such transfer. Each
such notice shall describe the manner and circumstances of the proposed
transfer, and shall be accompanied (except in transactions in compliance with
Rule 144) by a written opinion of legal counsel who shall be satisfactory to the
Company, addressed to the Company and reasonably satisfactory in form and
substance to the Company's counsel, to the effect that the proposed transfer of
the Restricted Securities may be effected without registration under the
Securities Act and applicable state securities laws, whereupon the holder of
such Restricted Securities, subject to compliance with the Amended and Restated
Shareholders Agreement of even date herewith, by and among the Company and its
shareholders, shall be entitled to transfer such Restricted Securities in
accordance with the terms of the notice delivered by the holder to the Company.
Each certificate evidencing the Restricted Securities transferred as above
provided shall bear the appropriate restrictive legend set forth above unless
the opinion of counsel referred to above is to the further effect that no such
legend is required in order to establish compliance with any provisions of the
Securities Act or applicable state securities laws.
4. REGISTRATION RIGHTS.
4.1 PIGGY BACK REGISTRATION.
(a) If the Company shall determine to register any of its securities
for its own account, other than a registration relating solely to
employee benefit plans or with regard to acquisitions or a registration
on any registration form which does not permit secondary sales or other
than a registration on Form S-3 made at the request of an Initiating
Holder pursuant to Section 4.2 hereof, the Company will:
(i) promptly give to each Holder written notice thereof (which
shall include a preliminary list of the jurisdictions in which the
Company intends to attempt to qualify such securities under the
applicable blue sky or other state securities laws); and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting
involved therein, all Registrable Securities specified in a written
request or requests, made by any Holder within thirty (30) days
after receipt of the written notice from the
Company described in clause (i) above, except as set forth in
Section 4.1(b) below. Such written request may specify all or any
part of a Holder's Registrable Securities.
(b) If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall
so advise the Holders by written notice. All Holders proposing to
distribute their securities through such underwriting shall (together
with the Company or any other securityholders distributing its or their
securities for its own account through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected by the Company. Notwithstanding any other
provision of this Section 4.1, if the representative of the
underwriters advises the Company in writing that, in its opinion,
inclusion of the full number of Registrable Securities requested to be
included in the registration by Holders would adversely affect the
underwriting, the representative may (subject to the allocation
priority set forth below), limit the number of shares to be included in
the registration and underwriting. The Company shall so advise all
holders of securities requesting registration of the limitation and the
number of shares to be excluded from the registration by reason of the
limitation imposed by the representative. The number of shares to be
excluded from the registration shall be allocated as follows:
(i) first, all shares held by persons who, in the sole judgment
of the representative of the underwriters, would adversely affect
the marketing of the underwriting will be excluded from the
registration;
(ii) then, if a further limitation on the number of shares is
required, all
Registrable Securities held by persons who are eligible to sell
shares under Rule 144(k) will be excluded from the registration;
(iii) then, if a further limitation on the number of shares is
required, all Registrable Securities which were eligible for sale
under Rule 144 during the three (3) months ended on the date the
registration statement is filed will be excluded; except that no
Registrable Securities held by any Initiating Holder or any
Executive Shareholder shall be excluded under this provision; and
(v) finally, if a further limitation on the number of shares is
still required, the limitation of the number of Registrable
Securities shall be allocated in the sole discretion of the Company.
(c) If any Holder of Registrable Securities who has requested
inclusion in such registration as provided above disapproves of the
terms of the underwriting, such person may elect to withdraw therefrom
by written notice to the Company, the underwriter and the Initiating
Holders. The securities so withdrawn shall also be withdrawn from
registration.
(d) Notwithstanding the foregoing, the Company may, in its sole
discretion and without the consent of or prior notice to any Holders,
withdraw any registration statement referred to in this Section 4.1 and
abandon the proposed offering at anytime
without thereby incurring any liability to any Holder.
4.2 REGISTRATION ON FORM S-3.
(a) In addition to the rights contained in Section 4.1 and subject
to the Company being qualified to utilize a registration statement on
Form S-3, the Initiating Holders shall have the right to request from
time to time after the date which is one year after the date of
consummation of the Company's initial public offering of Common Stock,
registration on Form S-3. Such requests shall be in writing, and shall
state the number of shares of Registrable Securities to be disposed of
and the intended methods of disposition of such shares by the Holders.
(b) The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the allocation priority set forth in
subsection (c) below, include other securities of the Company which are
held by other shareholders and may include securities of the Company
being sold for the account of the Company.
(c) Notwithstanding any other provision of this Section 4.2, if the
registration requested under this Section 4.2 involves an underwriting
and if the representative of the underwriters advises the Company in
writing that, in its opinion, inclusion of the full number of (A)
Registrable Securities requested to be included in the registration by
Holders and (B) shares proposed to be included in the registration by
other shareholders would adversely affect the underwriting, the
representative may (subject to the allocation priority set forth
below), limit the number of shares to be included in the registration
and underwriting. The Company shall so advise all holders of securities
requesting registration of the limitation and the number of shares to
be excluded from the registration by reason of the limitation imposed
by the representative. The number of shares to be excluded from the
registration shall be allocated as follows:
(i) first, all shares held by persons who, in the sole judgment
of the representative of the underwriters, would adversely affect
the marketing of the underwriting will be excluded from the
registration;
(ii) then, if a further limitation on the number of shares is
required, all held by persons who are eligible to sell shares under
Rule 144(k) will be excluded from the registration;
(iii) then, if a further limitation on the number of shares is
required, all Registrable Securities which were eligible for sale
under Rule 144 during the three (3) months ended on the date the
registration statement is filed will be excluded; except that no
Registrable Securities held by any Initiating Holder or any
Executive Shareholder shall be excluded under this provision;
(iv) then, if a further limitation on the number of shares is
still required, the limitation of the number of Registrable
Securities shall be allocated in the sole discretion of the Company,
among all remaining Holders, except that no Registrable Securities
held by any Initiating Holder or any Executive Shareholder shall be
excluded under this provision;
(v) then, if a further limitation on the number of shares is
required, all securities of the Company being sold for the account
of the Company will be excluded; and,
(vi) finally, if a further limitation on the number of shares is
still required, the limitation of the number of Registrable
Securities shall be borne by the Executive Holders pro rata.
(d) The Company shall have the right to defer the request of the
Initiating Holders to effect a registration for up to one hundred and
twenty (120) calendar days if, in the Company's sole discretion,
effecting a registration would not be in the Company's interest.
4.3 EXPENSES OF REGISTRATION.
(a) Subject to paragraph (b) below, the Company shall bear all
Registration Expenses and the selling securityholders shall bear all
Selling Expenses (in proportion, as nearly as practicable, to the
securities of each securityholder being registered) incurred in
connection with any registration, qualification or compliance pursuant
to the provisions of Section 4.1 or 4.2.
(b) Notwithstanding paragraph (a) above, in regard to registrations
pursuant to Section 4.2 herein, the Company shall bear all Registration
Expenses for two (2) registrations pursuant to Section 4.2 and the
selling securityholders shall bear all Selling Expenses in connection
therewith (in proportion, as nearly as practicable, to the securities
of each securityholder then being registered). Thereafter, selling
securityholders shall bear all Selling and all Registration Expenses
for such registrations (in proportion, as nearly as practicable, to the
securities of each securityholder then being registered).
4.4. REGISTRATION PROCEDURES. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will
keep each Holder advised in writing as to the initiation of each
registration and as to the completion thereof, and the Company will:
(a) Keep such registration effective for a period of sixty (60) days
or until the Holder or Holders have completed the distribution
described in the registration statement relating thereto, whichever
first occurs, PROVIDED, HOWEVER, that in the case of any registration
of Registrable Securities on Form S-3 which are intended to be offered
on a continuous or delayed basis, the Company shall have the right to
prohibit the sale of Registrable Securities pursuant to the Form S-3
registration statement, upon notice to the Holders (i) if in the
opinion of counsel for the Company, the Company would thereby be
required to disclose information not otherwise than required by law to
be publicly disclosed, provided that the Company shall use its best
efforts to minimize the period of time which it shall prohibit the
sales of any shares of Registrable Securities pursuant to this clause
(i); (ii) for periods of up to 120 days if the Company reasonably
believes that such sale might reasonably be expected to have an adverse
effect on any significant proposal or plan of the Company to engage in
an acquisition of assets or any merger, consolidation, tender offer,
financing, corporate reorganization or similar transaction; (iii)
during the period starting with the date 10 days prior to the Company's
estimate of the date of filing of, and ending on a date 90 days after
the effective date of, a Company initiated registration in which the
Holders requesting registration on Form S-3 are entitled to
participate in accordance with Section 4.1 hereof, or such longer
post-effective period as may be reasonably required by the underwriter
or underwriters if such offering is underwritten; or (iv) upon the
happening of any event, as a result of which the prospectus under the
Form S-3 registration statement includes an 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 in
light of the circumstances then existing (in which case, the Company
shall promptly provide the Holders requesting registration on Form S-3
with revised or supplemental prospectuses and such Holders shall
promptly take action to cease making any offers of the Registrable
Securities until the receipt and distribution of such revised or
supplemental prospectuses), PROVIDED HOWEVER, that the sixty (60) day
period described above shall be tolled during any period described in
this Section 4.4(a);
(b) Prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of securities covered by such registration statement;
(c) Furnish such number of prospectuses and other documents incident
thereto, including any term sheet or any amendment of or supplement to
the prospectus, as a Holder from time to time may reasonably request;
(d) Notify each Holder, at their last known addresses as set forth
in the Company's books and records, of Registrable Securities covered
by such registration statement at any time when a prospectus relating
thereto is required to be delivered under the Securities Act of the
happening of any event as a result of which the prospectus included in
such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading or incomplete in the light of the circumstances then
existing, and at the request of any such Holder, prepare and furnish to
such Holder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchaser of such shares, such prospectus shall not
include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing;
(e) Cause all such Registrable Securities to be listed on each, if
any, securities exchange on which similar securities issued by the
Company are then listed;
(f) Make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant
to such registration statement, and any attorney or accountant retained
by any such seller or underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers and directors to supply all information
reasonably requested by any such seller, underwriter, attorney or
accountant in connection with such registration statement; provided,
however, that such seller, underwriter, attorney or accountant shall
agree to hold in confidence and trust all information so provided;
(g) Furnish to each selling Holder a signed counterpart, addressed
to the selling Holder, of an opinion of counsel for the Company, dated
the effective date of the
registration statement, and "comfort" letters signed by the Company's
independent public accountants who have examined and reported on the
Company's financial statements included in the registration statement,
to the extent permitted by the standards of the AICPA or other relevant
authorities, covering substantially the same matters with respect to
the registration statement (and the prospectus included therein) and
(in the case of the accountants' "comfort" letters) with respect to
events subsequent to the date of the financial statements, as are
customarily covered in opinions of issuer's counsel and in accountants'
"comfort" letters delivered to the underwriters in underwritten public
offerings of securities;
(h) Furnish to each selling Holder a copy of all documents filed
with and all correspondence from or to the Commission in connection
with any such offering other than non-substantive cover letters and the
like;
(i) Otherwise use its 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, an earnings
statement covering the period of at least twelve months, but not more
than eighteen months, beginning with the first month after the
effective date of the Registration Statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act;
and
(j) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 4.2 hereof, enter into
any underwriting agreement reasonably necessary to effect the offer and
sale of Registrable Securities on terms reasonably acceptable to the
Company, provided such underwriting agreement contains customary
underwriting provisions and is entered into by the Holders and provided
further that if the underwriter so requests the underwriting agreement
will contain customary contribution provisions.
5. INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its officers,
directors and partners, and each person controlling such Holder, with
respect to which registration, qualification or compliance has been
effected pursuant to Section 4 hereof, and each underwriter, if any,
and each person who controls any underwriter, against all claims,
losses, damages and liabilities (or actions, proceedings or settlements
in respect thereof) arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any
prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or
alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or
any rule or regulation thereunder applicable to the Company and
relating to action or inaction required of the Company in connection
with any such registration, qualification or compliance, and will
reimburse each such Holder, each of its officers, directors and
partners, each person controlling such Holder, and each such
underwriter and each person who controls any such underwriter, for any
legal and any other expenses as they are reasonably incurred in
connection with investigating and defending any such claim, loss,
damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any
such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement (or alleged untrue statement) or omission
(or alleged omission) made in any prospectus, offering circular or
other document (i) based upon written information furnished to the
Company by such Holder or underwriter and stated to be specifically for
use therein, or (ii) if such Holder or its agents failed to deliver a
copy of such sserting such loss, claim, damage, liability, or expense
after the Company had furnished such Holder with a sufficient number of
copies of the same and at a time sufficient to permit timely delivery
of same and such document corrected such untrue statement or omission;
and, provided, further that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability, or
expense arises out of or is based upon any untrue statement (or alleged
untrue statement) or omission (or alleged omission) in any prospectus,
offering circular or other document, if such untrue statement (or
alleged untrue statement) or omission (or alleged omission) is
corrected in an amendment or supplement to such document and such
Holder or its agent thereafter fails to deliver such document as so
amended or supplemented prior to or concurrently with the sale of the
Registrable Securities covered by a registration statement to the
person asserting such loss, claim, damage, liability, or expense after
the Company had furnished such Holder with a sufficient number of
copies thereof in a manner and at a time sufficient to permit timely
delivery of the same.
(b) Each Holder will, if Registrable Securities held by it are
included in the securities as to which such registration, qualification
or compliance is being effected, indemnify the Company, each of its
directors and officers and each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of the
Securities Act and the rules and regulations thereunder, each other
Holder and each of their officers, directors and partners, and each
person controlling such other Holder, against all claims, losses,
damages and liabilities (or actions in respect thereof) arising out of
or based on any untrue statement (or alleged untrue statement) of a
material fact contained in any such registration statement, prospectus,
offering circular or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse the Company and such Holders, directors, officers,
partners, persons, underwriters or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or
defending any such claim, loss, damage, liability or action, in each
case to the extent, but only to the extent, that such untrue statement
(or alleged untrue statement) or omission (or alleged omission) is made
in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information
furnished to the Company by such Holder and stated to be specifically
for use therein; provided, however, that the obligations of such
Holders hereunder shall be limited to an amount equal to the proceeds
to each such Holder of securities sold as contemplated herein.
(c) Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice in writing to the party required
to provide indemnification (the "Indemnifying Party") promptly after
such Indemnified Party has actual knowledge of any claim as to which
indemnity may be sought, and shall permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall
conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may
participate in such defense at such Indemnified Party's expense, and
provided further that the failure of any Indemnified Party to give
notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 5, unless such failure prejudices
the ability of the Indemnifying Party to defend against the claims
asserted against the Indemnified Party. No Indemnifying Party, in the
defense of any such claim or litigation, shall, except with the consent
of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which 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 to such claim or
litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this Section 5 is
unavailable to an Indemnified Party in respect of any losses, claims,
damages or liabilities referred to therein, then each 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 or liabilities in such proportion as is
appropriate to reflect the relative fault of the Company on the one
hand and the shareholders offering securities in the offering (the
"Selling Shareholders") on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the Selling
Shareholders on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of
material fact or the omission or alleged omission to state a material
fact relates to information supplied by the Company or by the Selling
Shareholders and the parties' relevant intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and the Selling Shareholders agree that it would
not be just and equitable if contribution pursuant to this Section 5(d)
were based solely upon the number of entities from whom contribution
was requested or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
Section 5(d). The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages and liabilities referred to above
in this Section 5(d) shall be deemed to include any legal or other
expenses reasonably incurred by such Indemnified Party in connection
with investigating or defending any such action or claim, subject to
the provisions of Section 5(d) hereof. Notwithstanding the provisions
of this Section 5(d), no equired to contribute any amount or make any
other payments under this Agreement which in the aggregate exceed the
net proceeds received by such Selling Shareholder. No person guilty of
fraudulent misrepresentation (within the meaning of the Securities Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
6. INFORMATION BY HOLDER. Each Holder of Registrable Securities shall
furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification or compliance referred to in this Agreement.
7. NO LIMITATIONS ON FUTURE REGISTRATION RIGHTS. Nothing contained in
this agreement shall prevent the Company from entering into any agreement with
any holder or prospective holder of any securities of the Company giving such
holder or prospective holder a
right to require the Company to initiate any registration of any securities of
the Company or to require the Company, upon any registration of any of its
securities, to include, among the securities which the Company is then
registering, securities owned by such holder.
8. 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 the
Restricted Securities to the public without registration, the Company agrees to:
(a) use its best efforts to make and keep public information
available as those terms are understood and defined in Rule 144 under
the Securities Act at all times from and after ninety (90) days
following the effective date of the first registration under the
Securities Act filed by the Company for an offering of its securities
to the general public; use its 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 Exchange Act at any time after
it has become subject to such reporting requirements; and
(b) so long as the Holders own any Restricted Securities, furnish to
the Holders forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 (at
any time from and after ninety (90) days following the effective date
of the first registration statement filed by the Company for an
offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed as the Holders may reasonably request in availing
itself of any rule or regulation of the Commission allowing the Holders
to sell any such securities without registration.
9. TERMINATION. The provisions of Sections 4.1 and 4.2 of this
Agreement shall terminate on the first to occur of: the fifth anniversary of the
Company's initial public offering of its Common Stock; or, the date on which all
parties to the Agreement can sell all of their Common Stock under Rule 144(k).
10. ENTIRE AGREEMENT; AMENDMENT; WAIVER. This Agreement constitutes the
entire agreement between the parties hereto with respect to the subject matter
hereof. No amendment, alteration or modification of this Agreement shall be
valid unless in each instance such amendment, alteration or modification is
expressed in a written instrument executed by the holders of at least sixty-six
and two-thirds percent (66-2/3%) of the shares of the Registrable Securities,
provided that no amendment to Section 4.2 or the definition of Initiating Holder
shall be made without the consent of each of Xxxxxx and Xxxxxxxxxx. No waiver of
any provision of this Agreement shall be valid unless it is expressed in a
written instrument duly executed by the party or parties making such waiver. The
failure of any party to insist, in any one or more instances, on performance of
any of the terms and conditions of this Agreement shall not be construed as a
waiver or relinquishment of any rights granted hereunder or of the future
performance of any such term, covenant or condition but the obligation of any
party with respect thereto shall continue in full force and effect.
11. SPECIFIC PERFORMANCE. The parties hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
by reason of a failure to perform any of the obligations under this Agreement.
Therefore, all parties hereto shall have the
right to specific performance of the obligations of the other parties under this
Agreement, and if any party hereto shall institute an action or proceeding to
enforce the provisions hereof, any person (including the Company) against whom
such action or proceeding is brought hereby waives the claim or defense therein
that such party has an adequate remedy at law, and such person shall not urge in
any such action or proceeding the claim or defense that such remedy at law
exists.
12. NOTICES. All notices and other communications required or permitted
hereunder shall be in writing and shall be mailed by first-class mail, postage
prepaid, return receipt requested, or transmitted by facsimile or delivered
either by hand, by messenger or by nationally recognized overnight courier,
addressed:
(a) if to the holders of the Registrable Securities, at the
addresses set forth on the attachments hereto or at such other address
as they shall have furnished to the Company in writing, with a copy to:
Xxxxxxx Xxxxxx & Xxxxxxxxxx LLC
990 One Live Oak Center
0000 Xxxxx Xxxx, X.X.
Xxxxxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxxx XX
Phone: (000) 000-0000
Fax: (000) 000-0000
and
(b) if to the Company, to the following address, or at such
other address as the Company shall have furnished to the holders of the
Registrable Securities and each such other holder in writing,
Transeastern Properties, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, XX 00000
Attn.: Secretary
Alternatively, to such other address as a party hereto supplies to each other
party in writing.
13. SUCCESSORS AND ASSIGNS. All the terms and provisions of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective transferees, successors and assigns of the parties hereto,
whether so expressed or not.
14. GOVERNING LAW. This Agreement is to be governed by and interpreted
under the laws of the State of Florida without giving effect to the principles
of conflicts of laws thereof.
15. TITLES AND SUBTITLES. The titles of the sections of this Agreement
are for the convenience of reference only and are not to be considered in
construing this Agreement.
16. SEVERABILITY. The invalidity or unenforceability of any provisions
of this Agreement shall not be deemed to affect the validity or enforceability
of any other provision of this Agreement.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
TRANSEASTERN PROPERTIES, INC.
By:
Xxxxxx X. Xxxxxxx, Executive Vice
President
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxx, Xx.
Signatures of Holders are attached to:
Notice of Election and Consent of Holders of Series A Redeemable Preferred
Stock;
Notice of Election and Consent of Holders of Series B Redeemable Preferred
Stock;
Notice of Election and Consent of Holders of 1996 Offering Common Stock.
