Exhibit 10.15 Standard Gulf Atlantic Publishing, Inc. Client Contract
Exhibit 10.15 Standard Gulf Atlantic Publishing, Inc. Client Contract
GULF ATLANTIC PUBLISHING, INC. AGREEMENT
This GULFATLANTIC PUBLISHING, INC. Agreement (the "Agreement") is
entered into on this day of ___________, 19_, between Gulf Atlantic
Publishing, Inc., a Florida corporation ("GAP"), and
______________________, a _______________ corporation ("Client").
Whereas, GAP is in the business of planning, developing and
implementing advertising, marketing and promotional campaigns for
corporations and other business entities ("Advertising and Promotional
Services");
Whereas, the Client desires to retain GAP to provide the
Advertising and Promotional Services, and GAP desires to provide such
Advertising and Promotional Services to Client, pursuant to the terms,
conditions and provisions contained in this Agreement;
Now, therefore, in consideration of the mutual promises contained
herein and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound hereby, agree as follows:
1. Advertising and Promotional Services. Subject to Client's
compliance with each of the representations, warranties and covenants and
agreements made by Client in this Agreement, GAP agrees to provide to
Client the Advertising and Promotional Services identified on Exhibit A
which is attached hereto and incorporated herein by reference, for the
period commencing on the latter of (the "Effective Date") the date that
this Agreement is executed and delivered by Client or the date that GAP
receives payment of its fees as herein provided and expiring on the 365th
day following the effective date of this Agreement (the "Term").
2. Obligations and Responsibilities of Client. As of the date
hereof and during the Term of this Agreement, Client agrees as follows.
1. Representation and Warranties.
Client represents and warrants to GAP that:
(1) Organization. Client is a corporation
duly organized, validly existing and in good standing
under the laws of the State of its incorporation and it is duly qualified
to do business as a foreign corporation in each jurisdiction in which it
owns or leases property or engages in business.
(2) Formal Action. Client has the
corporate power and authority to execute and deliver this Agreement and to
perform each of its obligations hereunder and this Agreement has been duly
approved by Client's Board of Directors.
Initials
(3) Valid and Binding Agreement. This
Agreement has been duly executed and delivered by Client and is the valid
and binding obligation of Client enforceable against it in accordance with
its terms.
(4) No Violation. The execution, delivery
and performance of this Agreement does not and will not violate any
provisions of the charter or bylaws of Client or any agreement to which
Client is a party or any applicable law or regulation or order or decree of
any court, arbitrator or agency of government and no action of, or filing
with, any governmental or public body or authority is required in
connection with the execution, delivery or performance of this Agreement.
(5) Litigation. No action, suit or
proceeding is pending against or affecting the Client or any of its
properties before any court, arbitrator or governmental body or
administrative agency and none of the persons owning beneficially or of
record more than 10% of the outstanding capital stock of the Client or any
of the directors or officers of Client is a party to any action, suit or
proceeding before any federal or state court, arbitrator or governmental
body or administrative agency (other than routine traffic violations) and
no such person has been a party to any such proceedings for more than the
past five years.
(6) Accuracy of Information. The
information furnished by Client to GAP regarding the business, operations,
financial condition, including financial statements, business plans and
biographical information regarding the Client's directors and officers
(collectively referred to as the "Information Package") is complete and
accurate in all material respects and does not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made not misleading.
2. Covenants and Agreements.
Client covenants and agrees to comply with the following
covenants:
(1) Client Certjfication. Client
acknowledges that it is responsible for the accuracy and completeness of
the Information Package and for all other information furnished to GAP and
for the accuracy and completeness of the contents of all materials prepared
by GAP for and on behalf of Client. The Client hereby designates the
individuals listed on Exhibit B attached hereto and incorporated herein by
reference as the duly authorized representatives of Client for purposes of
certifying to GAP the accuracy of all documents, advertisements or other
materials prepared by GAP for and on behalf of Client. The Client agrees to
promptly advise GAP in writing of any condition, event, circumstance or act
that would constitute a material adverse change in the business,
properties, financial condition or business prospects of the Client or
which would make any of the information contained in the Information
Package or in any report, advertorial or other
Initials
document prepared by GAP for and on behalf of Client misleading in any material
respect. Client hereby agrees that GAP and its directors, officers, agents and
employees may rely on the Information Package and on all other information
furnished by Client, and on each and every certification provided by an
authorized representative of Client, until GAP is advised in writing by an
authorized representative of Client that the information previously furnished to
GAP is inaccurate or incomplete in any material respect. Client acknowledges
that GAP shall have no obligation to provide services hereunder until it has
received a written certificate from an authorized representative of Client as
follows: GAP shall prepare proofs and/or tapes of the agreed upon materials and
information, as set for dissemination, for the Client's review and approval and
Client shall sign and return such materials marking all corrections and changes
that the Client believes appropriate. Client acknowledges that GAP will make
oral representations based on the information furnished hereunder and the Client
authorizes such representations.
(2) Books and Records. Client shall
maintain true and complete books, records and accounts in which true and
correct entries shall be made of its transactions in accordance with
generally accepted accounting principles consistently applied ("GAAP").
(3) Financial and Other Information. Client
agrees to furnish to GAP the following information:
(i) Annual Financial Statements. As soon as practicable, and in
any event within 90 days after the close of the Client's fiscal year,
annual financial statements including a balance sheet, an income statement,
a statement of cash flows, and a statement of stockholder's equity, and all
notes thereto prepared in accordance with GAAP and audited by an
independent certified public accountant.
(ii)Quarterly Financial Statements. As soon as practicable, and in
any event within 45 days after the end of each fiscal quarter, quarterly
financial statements, including a balance sheet, a quarterly and
year-to-date income statement, a statement of cash flows, and a statement
of stockholder's equity, prepared by Client in accordance with GAAP and
certified by the chief financial officer and chief executive officer of
Client as fairly presenting, subject to normal year-end audit adjustments,
the Client's fmancial position as of and for the periods indicated.
(4) GAP Reliance on Client's Full Disclosure. Client will provide,
or cause to be provided, to GAP all financial and other information
requested by GAP for the purpose of rendering its services pursuant to this
Agreement. Client recognizes and confirms that GAP will use such
information in performing the services contemplated by this Agreement
without independently verifying such information and that GAP does not
assume any responsibility for the accuracy or completeness of such
information. The persons executing this Agreement on behalf of Client
certify that there is no fact known to them which materially adversely
affects or may (so far as the Client's senior management can now reasonably
foresee) materially adversely affect the business, properties, condition
(financial or other) or operations (present or prospective) of the Client
Initials
which has not been set forth in written form delivered by Client to GAP. The
persons executing this Agreement on behalf of Client agree to keep GAP promptly
informed of any facts hereafter know to Client which materially adversely
affects or may (so far as the Client's senior management can now reasonably
foresee) materially adversely affect the business, properties, condition
(financial or other) or operations (present or prospective) of Client.
(5) Legal Representation. Client
acknowledges and agrees that it has been and will continue to be,
represented by legal counsel experienced in corporate and securities laws
and Client acknowledges that it has been advised as to the obligations
imposed on it pursuant to such laws and understands that it will have the
obligation and responsibility to see that all such laws are complied with
at all times during the Term of this Agreement.
3. Compensation. In consideration of the Advertising and
Promotional Services to be performed by GAP hereunder, Client hereby agrees
to compensate GAP in the manner and in the amount specified in Exhibit C
which is attached hereto and incorporated herein by reference thereto. In
addition to the compensation to be paid to GAP as provided in Exhibit C,
Client shall reimburse GAP promptly after a written request therefor
accompanied by appropriate documentation, for all reasonable out-of-pocket
expenses (including reasonable fees and disbursements of GAP's counsel, if
any) incurred in connection with providing services hereunder or to the
extent provided in Exhibit C.
4. Indemnity. Client acknowledges that it is responsible for the
accuracy of the Information Package and all other information provided to
GAP and for the contents of all materials, advertorials and other
information prepared by GAP for an on behalf of Client as provided herein
and Client agrees to indemnify GAP in accordance with the Indemnification
Agreement set forth in Exhibit D, which is attached hereto and incorporated
herein by reference.
5. Relationship of the Parties. This Agreement provides for the
providing of marketing, promotional and advertising services by GAP to
Client and the provisions herein for compliance with financial covenants,
delivery of financial statements, and similar provisions are intended
solely for the benefit of GAP to provide it with information on which it
may rely in providing services hereunder and nothing contained in this
Agreement shall be construed as permitting or obligating GAP to act as a
financial or business advisor or consultant to Client, as permitting or
obligating GAP to participate in the management of client's business, as
creating or imposing any fiduciary obligation on the part of GAP with
respect to the provisions of services hereunder and GAP shall have no such
duty or obligation to client, as providing or counseling Client as to the
compliance by Client with any federal or state securities or other laws
effecting the services to be provided hereunder, or as creating any joint
venture, agency, or other relationship between the parties other than as
explicitly and specifically stated in this Agreement. The Client
acknowledges that it has had the opportunity to obtain the advice of
experienced counsel of its own choosing in connection with the negotiation
and execution of this Agreement, the provision of services hereunder
Initials
and with respect to all matters contained herein, including, without
limitation, the provisions of Section 4 hereof..
6. Survival of Certain Provisions. The
Client's obligations to pay the fees and expenses of GAP pursuant to
Section 3 of this Agreement and to comply with the
indemnification provisions pursuant to Section 4 shall remain operative and
in full force and effect regardless of any termination of this Agreement
and shall be binding upon, and shall inure to the benefit of, GAP and, in
the case of the indemnity agreement, the persons, agents, employees,
officers, directors and controlling persons referred to in the
Indemnification Agreement, and their respective successors and assigns and
heirs, and no other person shall acquire or have any right under or by
virtue of this Agreement. All amounts paid or required to be paid under
Sections 3 and 4 of this Agreement shall be fully earned on the Effective
Date of this Agreement notwithstanding prior termination of this Agreement.
7. Termination. GAP shall have the right
in its sole and absolute discretion to terminate its obligations hereunder
and to immediately cease providing Advertising and Promotional Services
pursuant to this Agreement if GAP, in the exercise of its reasonable
judgment, believes that the representations and warranties made by Client
hereunder are inaccurate in any material respect or if Client breaches any
of its covenants and agreements contained herein or if any federal or state
governmental agency or instrumentality institutes an investigation or suit
against Client or pertaining to the services hereunder.
8. Non-Solicitation Covenant. Client
agrees that it will not directly or indirectly during the term of this
Agreement or for three years following the termination or expiration of
this Agreement, either voluntarily or involuntarily, for any reason
whatsoever, recruit or hire or attempt to recruit or hire any employee of
GAP or of any of its affiliates or subsidiaries, or otherwise induce any
such employees to leave the employment of GAP or of any of its affiliates
or subsidiaries or to become an employee of or otherwise be associated with
Client or any affiliate or subsidiary of Client. Client acknowledges that
GAP and its affiliates and subsidiaries have invested a significant amount
of time, energy and expertise in the training of their employees to be able
to provide Advertising and Promotional Services and Client therefore agrees
that this covenant is reasonable and agrees that the breach of such
covenant is very likely to result in irreparable injury to GAP, which is
unlikely to be adequately compensated by damages. Accordingly, in the event
of a breach or threatened breach by Client of this Section 8, GAP shall be
entitled to an injunction restraining Client and any affiliate, subsidiary
or director or officer thereof from recruiting, or hiring or attempting to
recruit or hire any employee of GAP or of any affiliate or subsidiary of
GAP. Nothing herein shall be construed as prohibiting GAP from pursuing any
other remedies available to GAP for such breach or threatened breach,
including recovery of damages from Client. The undertakings herein shall
survive the termination or cancellation of the Agreement for three years.
9. Miscellaneous.
A. GoverningLaw. This Agreement shall be governed by the laws of the State of
Florida applicable to contracts executed and performed in the Circuit Court,
Orange County, in the State of Florida (without regard to the principles of
conflicts of laws).
B. Entire Agreement. This Agreement and the Exhibits hereto embody the entire
agreement of the parties with respect to its subject matter. There are no
restrictions, promises, representations, warranties, covenants, or undertakings
other than those expressly set forth or referred to herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter.
C. Amendments to be in Writing. This Agreement may be amended only in a writing
signed by all of the parties.
D. No Waivers by Course of Dealing; Limited Effect of Waivers. No waiver
shall be effective against any party unless it is in a writing signed by
that party. No course of dealing and no delay on the part of GAP in
exercising its rights shall operate as a waiver of that right or otherwise
prejudice GAP. GAP's failure to insist upon the strict performance of any
provision of this Agreement, or to exercise any right or remedy available
to GAP, shall not constitute a waiver by GAP of such provision. No specific
waiver by GAP of any specific breach of any provision of this Agreement
shall operate as a general waiver of the provision or of any other breach
of the provision. Client shall have no right to cure any breach except as
specifically provided herein.
E. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
F. Cumulation of Rights and Remedies. No right or remedy of GAP under this
Agreement is intended to preclude any other right or remedy and every right and
remedy shall coexist with every other right and remedy now or hereafter
existing, whether by contract, at law, or in equity.
G. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the parties and their successors and assigns. Client shall not have
any right to assign any of its rights or delegate any of its obligations or
responsibilities under this Agreement except as expressly stated herein. H.
Payment of Fees and Expenses on Enforcing Agreement. In the event of any dispute
between the parties arising out of or related
to this Agreement or the interpretation thereof, at the trial level or
appellate level, the prevailing party shall be entitled to recover from the
non-prevailing party all costs and expenses, including reasonable fees and
disbursements of counsel which may be incurred in connection with such
proceeding, without limitation, including any costs and expenses of
experts, witnesses, depositions and other costs.
Initials
I. Notices. Any notice or other communication required or permitted to be given
hereunder shall be in writing, and shall be delivered to the parties at the
addresses set forth below (or to such other addresses as the parties may specify
by due notice to the others). Notices or other communications shall be effective
when received at the recipient's location (or when delivered to that location if
receipt is refused). Notices or other communications given by facsimile
transmission shall be presumed received at the time indicated in the recipient's
automatic acknowledgment. Notices or other communications given by Federal
Express or other recognized overnight courier service shall be presumed received
on the following business day. Notices or other communications given by
certified mail, return receipt requested, postage prepaid, shall be presumed
received 3 business days after the date of mailing.
Client:
Attn:
Fax:
with a copy to:
Attn:
Fax:
Company: Gulf Atlantic Publishing, Inc. 0000 Xxx Xxxx
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx, President
Fax: (000) 000-0000
with a copy to:
J. Headings. The headings in this Agreement are intended solely for
convenience of reference. They shall be given no effect in the
construction or interpretation of this Agreement.
K. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not impair the validity or enforceability of any
other provision.
iInitials
In Witness Whereof, the parties have executed this Agreement
as of the date first above written.
Attest: Client:
By:
Secretary
[Corporate Seal]
Attest:
By:
Secretary
[Corporate Seal] Company: Xxxxxx X. Xxxxxxxx,
President By:
------------------------------------------
President
Gulf Atlantic Publishing, Inc.
Initials
GAP\pub-rel
Initials
EXHIBIT A
Advertising and Promotional Services
The services to be provided are as follows:
A. A Four-Color Financial Sentinel -- Featured advertorial mailing
of_____ will be created of which a ________ page advertorial will
be dedicated to the Client.
JuniorPage advertorial in
______ separate issues of the financial Sentinel
B. A Four-Color Money-World Magazine-- Featured advertorial mailing of
______ will be created of which a ________ page advertorial will be dedicated to
the Client.
JuniorPage advertorial in _____ separate issues of MoneyWorld magazine.
C. A Four-Color Financial Sentinel Special Project -- Featured
advertorial mailing of_____ will be created of which a ____ page advertorial
will be dedicated to the Client.
The parties The parties hereto by signing this Exhibit in the space provided
below signify their agreement regarding the service the service to be provided
by GAP under the Agreement.
Client:
By:
President
Company:
Gulf Atlantic Publishing, Inc.
By:
--------------------
Xxxxxx X. Xxxxxxxx, President
1
Client hereby designates the following person or persons to act on its
behalf for the purposes set forth in Section 2.B.(l) of the Agreement.
DIRECTOR (PLEASE SIGN)
DIRECTOR (PLEASE PRINT)
PRESIDENT (PLEASE SIGN)
PRESIDENT (PLEASE PRINT)
VICE PRESIDENT (PLEASE SIGN)
COMPENSATION
1. Client agrees to issue to GAP ______ Dollars ($______) in cash
on execution and delivery of the Agreement or, at the option of Client, to
issue GAP______ shares of freely tradable Common Stock in Client (the
"Shares"), which Shares shall be duly and validly issued, fully paid and
nonassessable and shall not be issued in violation of any preemptive right
of any stockholders of client. The Shares shall be issued in compliance
with the exemption from the registration requirements of the Securities Act
of 1933 (the "Act") provided by Section 4(2) of the Act and/or pursuant to
Rules 505 or 506 of the General Rules and Regulation under the Securities
Act of 933.
2. If compensation is paid in shares, concurrently with the
issuance of the Shares, Client will execute and deliver the Registration
Rights Agreement attached hereto as Exhibit F under which the Client agrees
to register the Shares for sale in compliance with the Act as therein
provided and to comply with all conditions necessary or required to enable
the Shares to be sold pursuant to Rule 144 of the General Rules and
Regulation under the Securities Act of 1933.
3. Should the Company affect payment of this contract by the
tender of free-trading Client shares belonging to individuals, the Client
assures and guarantees GAP that the Client will not reimburse the
individuals for shares given GAP.
4. The Shares, if any, to be issued to GAP shall be approved for
issuance in accordance with the rules and regulations of any stock exchange
on which the Shares are listed for trading or by the NASDAQ if the shares
are listed for trading thereon and shall be issued in compliance with all
appropriate federal or state governmental rules and regulations.
5. Client acknowledges that the consideration to be paid to GAP
shall be fully earned on the date that GAP commences providing services
under the Agreement regardless of whether the Agreement is terminated as
provided in the Agreement prior to completion of all services.
6. Client agrees to pay or reimburse GAP for all expenses arising
out of or related to the provision of services by GAP under
the Agreement to the extent provided in the Agreement and/or
in Exhibit A thereto.
7. "Options" mean the Options issuable, in certain circumstances,
pursuant to the Agreement which are exercisable for Common Stock.
Client shall issue options to GAP as outlined below.
Amount Price Duration
Initials
____shares
______shares
______shares _____shares ______shares
at $______ at $
at $_____ at $_
at $______ at $
at $
OnOne (1) year from the date of this Agreement TwTwo (2) years from the
date of this Agreement ThrThree(3) years from the date of this
Agreement FoFour(4) years from the date of this Agreement FivFive (5)
years from the date of this Agreement. The parties hereto by signing
this Exhibit in the space provided below signify their agreement to the
Compensation provisions contained heredi Therein.
Client:
By:
Company:
By:
---------------------------------------------
,President
Gulf Atlantic Publishing, Inc.
4
Xxxxxx X. Xxxxxxxx, President
INDEMNIFICATION
This Indemnification Agreement constitutes part of the Gulf
Atlantic Publishing Agreement (the Agreement) dated the ____ day of
________, 19_, between Client (as defined in the Agreement) and GAP.
Client acknowledges and agrees that if, in connection with the
services or matters that are the subject of or arise out of such Agreement,
GAP becomes involved (whether or not as a named party) in any action, claim
or legal proceeding (including any governmental inquiry or investigation),
Client agrees to reimburse GAP for its reasonable legal fees, disbursements
of counsel and other expenses (including the cost of investigation and
preparation) as they are incurred by GAP. Client also agrees to indemnify
and hold GAP harmless against any losses, claims, damages or liabilities,
joint or several, as incurred, to which GAP may become subject in
connection with the services or matters which are the subject of or arise
out of the Agreement; provided, however, that Client shall not be liable
under the foregoing indemnity in respect of any loss, claim, damage or
liability to the extent that a court having jurisdiction shall have
determined by a final judgment that such loss, claim, damage or liability
is a consequence of intentional fraudulent acts committed by GAP without
the knowledge and/or consent of Client. In the event that the foregoing
indemnity is unavailable by operation of law, then Client shall contribute
to amounts paid or payable by GAP in respect of such losses, claims,
damages and liabilities in the proportion that Client's interest bears to
GAP's interest in the matters contemplated by the Agreement. If, however,
the allocation provided by the immediately preceding sentence is not
permitted by applicable law, or otherwise, then Client shall contribute to
such amount paid or payable by GAP in such proportion as is appropriate to
reflect not only such relative interests but also the relative fault of
Client on the one hand and GAP on the other hand in connection with the
matters as to which such losses, claims, damages or liabilities relate and
other equitable considerations.
Promptly after GAP's receipt of notice of the commencement of any
action or of any claim, GAP will, if a claim in respect thereof is to be
made against Client under this Indemnity Agreement, notify Client of the
commencement thereof. In case any such action or claim is brought against
GAP, Client will be entitled to participate therein and, to the extent that
Client may wish, to assume the defense thereof, with counsel satisfactory
to GAP. After notice from Client to GAP of Client's election to so assume
the defense thereof, Client will not be liable to GAP for indemnification
as provided in the preceding paragraph for any legal fees, disbursements of
counsel or other expenses subsequently incurred by GAP in connection with
the defense thereof other than reasonable costs of investigation; provided
that GAP shall have the right to employ separate counsel if, in the
reasonable judgment of GAP's counsel, it is advisable far GAP to be
represented by separate counsel
5 _____
Initials
Initials
or if in the reasonable judgment of GAP's counsel, Client is not vigorously and
actively defending against any such claim or claims, and in either such event
the reasonable legal fees and disbursements of such separate counsel shall be
paid by Client.
The foregoing agreements shall apply to any modification of the
Agreement, shall remain in full force and effect following the completion or
termination of GAP's engagement under the Agreement and shall be in addition to
any rights that GAP may have at common law or otherwise. The agreements in this
Indemnification Agreement shall extend to and inure to the benefit of each
person, if any, who may be deemed to control GAP, be controlled by GAP or be
under common control with GAP and to GAP's, and to each such other person's
respective affiliates, directors, officers, employees and agents. This
Indemnification Agreement shall be binding on any successor of Client.
Client represents that the Indemnification Agreement contained
herein is the legal, valid, bindingnd enforceable obligation of Client,
enforceable against Client according to its terms.
This Indemnification Agreement shall be governed by, and
construed in accordance with, the laws of the State of Florida without regard to
principles of conflicts of law, and the forum for resolution of legal and
interpretative issues shall be the Federal District courts in the State of
Florida.
The parties hereto by signing this Exhibit in the space provided
below signify their agreement to the indemnification provisions contained
herein.
Client:
By: _____________________
President
Company: Gulf Atlantic Publishing, Inc.
By: _____________________
Xxxxxx X. Xxxxxxxx, President
EXHIBIT E
ABATEMENT CLAUSE
The parties to this contract understand and
agree that Client is under a federal mandate to become fully reporting and
approved for listing by the Securities and Exchange commission by a time certain
or be delisted from the Electronic Bulletin Board.
The Client and GAP understand and agree that
should the Company be delisted from the Bulletin Board such an event would
unduly interfere with GAP's ability to fulfill its contractual obligations.
WHEREFORE, the Client and GAP hereby agree that
should the Client be delisted from the Electronic Bulletin Board for any reason,
GAP's obligations under this contract shall be abated until such time as the
Client is relisted and resume trading on the Electronic Bulletin Board.
Should the Client fail to gain relisting within
one hundred twenty (120) days of being delisted, GAP xxx treat that even as a
material breach of this contract. In such event, GAP may declare the contract
void through breach and retain whatever payments have been made as liquidated
damages.
Client:
By:
President
Company: Gulf Atlantic Publishing, Inc
By:
Xxxxxx X. Xxxxxxxx, President
EXHIBIT F
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this
"Registration Agreement") is made and entered into as of ____________, 199_
by and between Gulf Atlantic Publishing, Inc., a Florida corporation (GAP),
and ______________, a _________ corporation (the Client).
WHEREAS, GAP concurrently with the execution
of this Registration Agreement is acquiring shares of the Client's common
stock, par value $_____ per share ("Common Stock") and/or options to
purchase shares of Common Stock; and
WHEREAS, as a condition to such acquisition,
the parties are willing to enter into the agreements contained herein.
NOW, THEREFORE, in consideration of the
foregoing and of the mutual covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the
parties hereto agree as follows:
Section 1. Definitions
"Affiliate" means, with respect to any
Person, any other Person which, directly or indirectly, controls, is
controlled by or is under common control with such Person.
"Agreement" means the Public Relations and Advertising Agreement
dated as of the date of this Registration Agreement between GAP and Client.
"Client" is defined in the Preamble to this Registration
Agreement.
"Common Stock" is defined in the Recitals to this Registration
Agreement.
"GAP" is defined in the Preamble to this Registration Agreement.
"Holder" is defined in Section 2.1 hereof.
"Lock-Up Period" is defined in Section 2.1 hereof.
"Options" mean the Options issuable, in certain circumstances,
pursuant to the Agreement, which are exercisable for Common Stock.
"Other Holders" is defined in Section 4.3 hereof.
8
"Person" means an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization and government or any
department or agency thereof.
"Piggyback Notice" is defined in Section 4.1 hereof.
"Piggyback Registration" is defined in Section 4.1 hereof.
"Registrable Securities" means (i) the Common Stock issued to GAP
pursuant to the Agreement, (ii) any Common Stock issued to GAP pursuant to
the exercise of Options, and (iii) any securities issued or issuable with
respect to the Common Stock referred to in clauses (i) or (ii) by way of
replacement, share dividend, share split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization.
"Registration Agreement" is defined in the Preamble to this
Registration Agreement.
"Registration Expenses" is defined in Section 6.1 hereof.
"Restricted Securities" is defined in Section 2.1 hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act"means the Securities Act of 1933, as amended, or
any similar federal law then in force.
"Transfer"is defined in Section 2.1 hereof.
Section 2. Restrictions on Transfer
2.1 Lock-Up Period. Without the express prior written consent of
the Client, GAP agrees that, except as set forth in Section 2.2 below, it
will not, directly or indirectly, offer, sell, contract to sell or
otherwise dispose of (or announce any offer, sale, contract of sale or
other disposition of) ("Transfer") any Registrable Securities or Options
(collectively, "Restricted Securities") prior to the first anniversary
following the date of this Registration Agreement.
2.2 Permitted Transfers. The restrictions contained in this
Section 2 will not apply with respect to any of the following transactions
(each, a "Permitted Transfer"):
9
Initials
2.2.1 a natural person may Transfer Restricted Securities to his or her spouse,
siblings, parents or any natural or adopted children or other descendants or to
any personal trust in which such family members or such transferee retains the
entire beneficial interest; 2.2.2 GAP may (A) Transfer Restricted Securities to
one or more other entities that are wholly owned and controlled, legally and
beneficially, by GAP or an Affiliate, or (B) Transfer Restricted Securities by
distributing such Restricted Securities in a liquidation, winding up or
otherwise without consideration to the equity owners of such corporation,
partnership or business entity or to any other corporation, partnership or
business entity that is wholly owned by such equity owners; or (C) Transfer
Restricted Securities to a director, officer or key employee of GAP or an
Affiliate;
2.2.3 a transferee acquiring Restricted Securities in a Permitted Transfer may
Transfer Restricted Securities on his or her death or mental incapacity to such
Person's estate, executor, administrator or personal representative or to such
Person's beneficiaries pursuant to a devise or bequest or by the laws of descent
and distribution; or
2.2.4 GAP or any transferee acquiring Restricted Securities in a Permitted
Transfer may Transfer Restricted Securities pursuant to an effective
Registration Statement as provided herein or pursuant to an exemption from the
registration requirements of the Securities Act.
If any Person Transfers Restricted Securities
as described in this Section 2.2, such Restricted
Securities shall remain subject to this Registration Agreement and, as a
condition of the validity of such Transfer, the transferee shall be
required to execute and deliver a counterpart of this Registration
Agreement. Thereafter, such transferee shall be deemed to be a Holder for
purposes of this Registration Agreement.
2.3 Rights of Subsequent Holder. Subject to the foregoing
restrictions, the Client and GAP hereby agree that any subsequent holder of
Registrable Securities shall be entitled to all benefits hereunder as a
holder of such securities.
Section 3. Demands for Registration.
3.1 Demand Period3. 1 From the date hereof, until the date which
is four years from the date hereof (the "Demand Period"), subject to the
terms and conditions set forth herein, GAP and the Permitted Transferees
will have in the aggregate three opportunities, in addition to other rights
enumerated in this Registration Agreement, to request registration under
the Securities Act of all or part of its Registrable Securities (a "Demand
Registration"). The Holders of 50% or more of the Registrable Securities
shall have the right to exercise the registration rights under this Section
3.
3.2 Demand Procedure.
3.2.1 Subject to Sections 3.2.2 and 3.2.4 below,
during the Demand Period any Holder or
combination of Holders (the "Demanding
Shareholders") owning 50% or more of the
Registrable Securities may deliver to the Client
a written request (a "Demand Registration
Request") that the Client register any or all of
such Demanding Shareholders' Registrable Shares.
3.2.2 Holders, in the aggregate, may only make one Demand Registration
Request in each six-month period during the
Demand Period (the "Interim Demand Periods").
The Client shall only be required to file one
registration statement (as distinguished from
supplements or pre-effective or post-effective
amendments thereto) in response to each Demand
Registration Request.
3.2.3 A Demand Registration Request from Demanding Shareholders shall (i) set
forth the number of Registrable Securities intended to be sold pursuant to the
Demand Registration Request (ii) disclose whether all or any portion of a
distribution pursuant to such registration will be sought by means of an
underwriting, and (iii) identify any managing underwriter or managing
underwriters proposed for the underwritten portion, if any, of such
registration.
3.2.4 If during any Interim Demand Period, the Client receives a Demand
Registration Request from Demanding Shareholders for the registration of
Registrable Securities having an aggregate market value of $100,000 or greater,
as determined according to the closing price of the Common Stock on the NASDAQ
National Market, on the Bulletin Board or in the Pink Sheets on the date of such
Demand Registration Request, then the Client shall, subject to the limitations
in Sections 3.2.5 and 3.2.6 hereof, (i) use its reasonable best efforts to
prepare and file within 30 days of receipt of the Demand registration request
with the SEC a registration statement under the Securities Act with respect to
all the Registrable Securities that the Demanding Shareholders requested to be
registered in the Demand Registration Request, (ii) use its reasonable best
efforts to cause such registration statement to become effective within 75 days
of receipt of the Demand Registration Request, and (iii) if such registration
can be accomplished by means of a registration statement on Form S-3, keep such
registration statement effective until such time as the Demanding Shareholders
shall have sold or otherwise disposed of all of their Registrable Securities
included in the registration. If such registration cannot be accomplished by
means of a registration statement on Form S-3, the Client shall use its
reasonable best efforts to keep such registration statement effective for at
least 180 days.
3.2.5It is anticipated that the registration contemplated under this Section 3
will be accomplished by means of the filing of a Form S-3, and that
registration on such form will allow for different means of distribution,
including sales by means of an underwriting as well as sales into the open
market. If the Demanding Shareholders desire to distribute all or part of
the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Client in writing in their initial
Demand Registration Request as described in Section 3.2.3 above. A
determination of whether all or part of the distribution will be by means
of an
3.2.1 Subject to Sections 3.2.2 and 3.2.4 below,
during the Demand Period any Holder or combination of Holders (the
"Demanding Shareholders") owning 50% or more of the Registrable
Securities may deliver to the Client a written request (a "Demand
Registration Request") that the Client register any or all of such
Demanding Shareholders' Registrable Shares.
3.2.2 Holders, in the aggregate, may only make
one Demand Registration Request in each six-month period during
the Demand Period (the "Interim Demand Periods't). The Client
shall only be required to file one registration statement (as
distinguished from supplements or pre-effective or post-effective
amendments thereto) in response to each Demand Registration
Request.
3.2.3 A Demand Registration Request from
Demanding Shareholders shall (i) set forth the number of
Registrable Securities intended to be sold pursuant to the Demand
Registration Request (ii) disclose whether all or any portion of a
distribution pursuant to such registration will be sought by means of an
underwriting, and (iii) identify any managing underwriter or managing
underwriters proposed for the underwritten portion, if any, of such
registration.
3.2.4 If during any Interim Demand Period, the
Client receives a Demand Registration Request from
Demanding Shareholders for the registration of Registrable Securities
having an aggregate market value of $100,000 or greater, as determined
according to the closing price of the Common Stock on the NASDAQ National
Market, on the Bulletin Board or in the Pink Sheets on the date of such
Demand Registration Request, then the Client shall, subject to the
limitations in Sections 3.2.5 and 3.2.6 hereof, (i) use its reasonable best
efforts to prepare and file within 30 days of receipt of the Demand
registration request with the SEC a registration statement under the
Securities Act with respect to all the Registrable Securities that the
Demanding Shareholders requested to be registered in the Demand
Registration Request, (ii) use its reasonable best efforts to cause such
registration statement to become effective within 75 days of receipt of the
Demand Registration Request, and (iii) if such registration can be
accomplished by means of a registration statement on Form S-3, keep such
registration statement effective until such time as the Demanding
Shareholders shall have sold or otherwise disposed of all of their
Registrable Securities included in the registration. If such registration
cannot be accomplished by means of a registration statement on Form S-3,
the Client shall use its reasonable best efforts to keep such registration
statement effective for at least 180 days.
3.2.5 It is anticipated that the registration
contemplated under this Section
3 will be accomplished by means of the filing of a Form S-3, and
that registration on such form will allow for different means of
distribution, including sales by means of an underwriting as well as sales
into the open market. If the Demanding Shareholders desire to distribute
all or part of the Registrable Securities covered by their request by means
of an underwriting, they shall so advise the Client in writing in their
initial Demand R~gistration Request as described in Section 3.2.3 above. A
determination of whether all or part of the distribution will be by means
of an
-------------
Initials
underwriting shall be made by Demanding Shareholders holding a majority of the
Registrable Securities to be included in the registration. If all or part of the
distribution is to be by means of an underwriting, all subsequent decisions
concerning the underwriting which are to be made by the Demanding Shareholders
pursuant to the terms of this Registration Agreement, which shall include the
selection of the underwriter or underwriters to be engaged and the
representative, if any, of the underwriters so engaged, shall be made by the
Demanding Shareholders who hold a majority of the Registrable Securities to be
included in the underwriting, subject to approval by the Board of Directors of
the Client.
3.2.6 Upon the receipt by the Client of a Demand
Registration Request in accordance with Section
3.2.4 hereof, the Client shall, within ten days following receipt of such
Demand Registration Request, give written notice of such request to all
Holders. The Client shall include in such notice information concerning
whether all, part or none of the distribution is expected to be made by
means of an underwriting, and, if more than one means of distribution is
contemplated, may require Holders to notify the Client of the means of
distribution of their Registrable Securities to be included in the
registration. If any Holder who is not a Demanding Shareholder desires to
sell any Registrable Securities owned by such Holder, such Holder may elect
to have all or any portion of its Registrable Securities included in the
registration statement by notifying the Client in writing (a "Supplemental
Demand Registration Request") within 20 days of receiving notice of the
Demand Registration Request from the Client. The right of any Holder to
include all or any portion of its Registrable Securities in an underwriting
shall be conditioned upon the Client's having received a timely written
request for such inclusion by way of a Demand Registration Request or
Supplemental Demand Registration Request (which right shall be further
conditioned to the extent provided in this Registration Agreement). All
Holders proposing to distribute their Registrable Securities through an
underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting.
3.2.7 Notwithstanding any other provision of
this Section 3, if an underwriter advises the Client
in writing that marketing factors require a limitation on the number of
shares to be underwritten, then the number of shares of Registrable
Securities that may be included in the underwriting shall be allocated
among the Holders in proportion (as nearly as practicable) to the
respective amounts of Registrable Securities each Holder owns (or in such
other proportion as they shall mutually agree). Registrable Securities
excluded or withdrawn from the underwriting in accordance with this Section
3.2.7 shall be withdrawn from the registration.
3.3 Priority on Request Registration. The Client will not include
in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the Holders of a majority
of the shares of Registrable Securities included in such registration. If a
Demand Registration is an underwritten offering and the managing
underwriters advise the Client in writing that in their opinion the number
of Registrable Securities and, if permitted hereunder, other securities
requested to be included in such offering exceeds the number of securities
that can be sold in an orderly manner in such offering within a price range
acceptable to the Holders of a majority of the shares of Registrable
Securities initially requesting
Initials
registration, the Client will include in such registration prior to the
inclusion of any securities which are not Registrable Securities the number
of shares of Registrable Securities requested to be included that in the
opinion of such underwriters can be sold in an orderly manner within such
acceptable price range, pro rata among the respective Holders thereof on
the basis of the number of shares of Registrable Securities owned by each
such Holder.
Section 4. Piggyback Registrations
4.1 Right to Piggyback. If the Client proposes to undertake an
offering of shares of Common Stock for its account or for the account of
other stockholders and the registration form to be used for such offering
may be used for the registration of Registrable Securities (a "Piggyback
Registration"), each such time the Client will give prompt written notice
to all Holders of Registrable Securities of its intention to effect such a
registration (each, a "Piggyback Notice") and, subject to Sections 4.3 and
4.4 hereof, the Client will use its best efforts to cause to be included in
such registration all Registrable Securities with respect to which the
Client has received written requests for inclusion therein within 20 days
after the date of sending the Piggyback Notice.
4.2 Priority on Primary Registrations. If a Piggyback Registration
is an underwritten primary registration on behalf of the Client, and the
managing underwriters advise the Client in writing that in their opinion
the number of securities requested to be included in such registration
exceeds the number that can be sold in an orderly manner within a price
range acceptable to the Client, the Client will include in such
registration (a) first, the securities the Client proposes to sell and (b)
second, the Registrable Securities requested to be included in such
registration and any other securities requested to be included in such
registration that are held by Persons other than the Holders of Registrable
Securities pursuant to registration rights, pro rata among the holders of
Registrable Securities and the holders of such other securities requesting
such registration on the basis of the number of shares of such securities
owned by each such holder.
4.3 Priority on Secondary. If a Piggyback Registration is an
underwritten secondary registration on behalf of holders of the Client's
securities other than the Holders of Registrable Securities (the "Other
Holders"), and the managing underwriters advise the Client in writing that
in their opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in an orderly manner in
such offering within a price range acceptable to the Other Holders
requesting such registration, the Client will include in such registration
(a) first, the securities requested to be included therein by the Other
Holders requesting such registration and (b) second, the Registrable
Securities requested to be included in such registration hereunder, pro
rata among the Holders of Registrable Securities requesting such
registration on the basis of the number of shares of such securities owned
by each such Holder.
4.4 Selection of Underwriters4. In the case of an underwritten
Piggyback Registration, the Client will have the right to select the
investment banker(s) and manager(s) to administer the offering.
Section 5. Registration Procedures Section.
Whenever the Holders of Registrable Securities have
requested that any Registrable Securities be sold pursuant to this
Registration Agreement, the Client will use its reasonable best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant
thereto the client will as expeditiously as possible:
5.1.1 Registration Statement. Prepare and file with the SEC a
registration statement with respect to such Registrable Securities and use
its reasonable best efforts to cause such registration statement to become
effective.
5.1.2 Amendments and Supplements. Promptly prepare and file with
the SEC such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep
such registration statement effective for the period required by the
intended method of disposition and the terms of this Registration Agreement
and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement during
such period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement.
5.1.3 Provision of Copies. Promptly furnish to each seller of
Registrable Securities the number of copies of such registration statement,
each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus) and such
other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
seller.
5.1.4 Blue Sky Laws. Use its reasonable best efforts to register
or qualify such Registrable Securities under the securities or blue sky
laws of such jurisdictions as any seller reasonably requests and do any and
all other acts and things which may be reasonably necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions of
the Registrable Securities owned by such seller, provided, that the Client
will not be required to (a) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 5.1.4, (b) subject itself to taxation in any such jurisdiction
or (c) consent to general service of process in any such jurisdiction.
5.1.5 Anti-fraud Rules.. Promptly notify each seller of such
Registrable Securities 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
contains an untrue statement of a material fact or omits any material fact
necessary to make the statements therein not misleading, and in such event,
at the request of any such seller, the Client will promptly prepare a
supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading,
provided, that the Client will not take any action which causes the prospectus
included in such registration statement to contain an untrue statement of
material fact or omit any material fact necessary to make the statements therein
not misleading, except as permitted by Section 5.5.
5.1.6 Securities Exchange Listings.. Use its
reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which securities of
the same class issued by the Client are then listed and use its reasonable
best efforts to qualify such Registrable Securities for trading on each
system on which securities of the same class issued by the Client are then
qualified.
5.1.7 Underwriting Agreements. Enter into
such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the
holders of a majority of the shares of Registrable Securities being sold or
the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities.
5.1.8 Due Diligence. Make available for
inspection by any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or other agent
retained by any such underwriter, all financial and other records,
pertinent corporate documents and properties of the Client, and cause the
Client's officers, directors, employees and independent accountants to
supply all information reasonably requested by any such underwriter,
attorney, accountant or agent in connection with such registration
statement.
5.1.9 Earning Statement. Otherwise use its
best efforts to comply with all applicable rules and
regulations of the SEC, and make available to its security holders, as soon
as reasonably practicable, an earning statement covering the period of at
least twelve months beginning with the first day of the Client's first full
calendar quarter after the effective date of the registration statement,
which earning statement shall satisfy the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder.
5.1.10 Deemed Underwriters or Controlling
Persons. Permit any Holder of Registrable Securities which Holder, in such
Holder's reasonable judgment, might be deemed to be an underwriter or a
controlling person of the Client, to participate in the preparation of such
registration or comparable statement and to require the insertion therein
of material in form and substance satisfactory to such Holder and to the
Client and furnished to the Client in writing, which in the reasonable
judgment of such Holder and its counsel should be included.
5.1.11 Management Availability.. In connection
with underwritten offerings, make available
appropriate management personnel for participation in the preparation and
drafting of such registration or comparable statement, for due diligence
meetings and for "road show" meetings.
5.1.12 Stop Orders. Promptly notify
Holders of the Registrable Securities of the threat of issuance by the SEC
of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceeding for that purpose, and make
every reasonable effort to prevent the entry of any order suspending the
effectiveness of the registration statement. In the event of the issuance
of any stop order suspending the effectiveness of a registration statement,
or of any order suspending or preventing the use of any related prospectus
or suspending the qualification of any Registrable Securities included in
such registration statement for sale in any jurisdiction, the Client will
use its reasonable best efforts promptly to obtain the withdrawal of such
order.
5.1.13 Opinions. At each closing of an underwritten offering,
request opinions of counsel to the Client and updates thereof (which
opinions and updates shall be reasonably satisfactory to the underwriters
of the Registrable Securities being sold) addressed to the underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Holders or their counsel.
5.1.14 Comfort Letter.. Obtain a cold comfort letter and related
bring down letters from the Client's independent public accountants
addressed to the selling Holders of Registrable Securities in customary
form and covering such matters of the type customarily covered by cold
comfort letters as the Holders of a majority of the Registrable Securities
being sold reasonably request.
5.2 Further Information. The Client may require each Holder of
Registrable Securities to furnish to the Client in writing such information
regarding the proposed distribution by such Holder of such Registrable
Securities as the Client may from time to time reasonably request.
5.3 Notice to Suspend Offers and Sales. Each Investor severally
agrees that, upon receipt of any notice from the Client of the happening of
any event of the kind described in Sections 5.1.5 or 5.1.12 hereof, such
Investor will forthwith discontinue disposition of shares of Common Stock
pursuant to a registration hereunder until receipt of the copies of an
appropriate supplement or amendment to the prospectus under Section 5.1.5
or until the withdrawal of such order under Section 5.1.12.
5.4 Reference to Holders. If any such registration or comparable
statement refers to any Holder by name or otherwise as the holder of any
securities of the Client and if, in the Holder's reasonable judgment, such
Holder is or might be deemed to be a controlling person of the Client, such
Holder shall have the right to require (a) the insertion therein of
language in form and substance satisfactory to such Holder and the Client
and presented to the Client in writing, to the effect that the holding by
such Holder of such securities is not to be construed as a recommendation
by such Holder of the investmento quality of the Client's securities
covered
Initials
thereby and that such holding does not imply that such Holder will assist
in meeting any future financial requirements of the Client, or (b) in the
event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar Federal statute then in
force, the deletion of the reference to such Holder; provided that with
respect to this clause (b) such Holder shall furnish to the Client an
opinion of counsel to such effect, which opinion and counsel shall be
reasonably satisfactory to the Client.
5.5 Client's Ability to Postpone. Notwithstanding anything to the
contrary contained herein, the Client shall have the right twice in any
twelve month period to postpone the filing of any registration statement
under Sections 3 or 4 hereof or any amendment or supplement thereto for a
reasonable period of time (all such postponements not exceeding 90 days in
the aggregate in any twelve month period) if the Client furnishes the
Holders of Registrable Securities a certificate signed by the Chairman of
the Board of Directors or the President of the Client stating that, in its
good faith judgment, the Client's Board of Directors (or the executive
committee thereof) has determined that effecting the registration at such
time would materially and adversely affect a material financing, acquisition,
disposition of assets or stock, merger or other comparable transaction, or
would require the Client to make public disclosure of information the
public disclosure of which would have a material adverse effect upon the
Client.
Section 6. Registration Expenses Section.
6.1 Expenses Borne by Client. Except as specifically otherwise
provided in Section 6.2 hereof, the Client will be responsible for payment
of all expenses incident to any registration hereunder, including, without
limitation, all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger
and delivery expenses, road show expenses, advertising expenses and fees
and disbursements of counsel for the Client and all independent certified
public accountants and other Persons retained by the Client in connection
with such registration (all such expenses borne by the Client being herein
called the "Registration Expenses").
6.2 Expenses Borne by Selling Securityholders.. The selling
securityholders will be responsible for payment of their own legal fees (if
they retain legal counsel separate from that of the Client), underwriting
fees and brokerage discounts, commissions and other sales expenses incident
to any registration hereunder, with any such expenses which are common to
the selling securityholders divided among such securityholders (including
the Client and holders of the Client's securities other than Registrable
Securities, to the extent that securities are being registered on behalf of
such Persons) pro rata on the basis of the number of shares being
registered on behalf of each such securityholder, or as such
securityholders may otherwise agree.
Section 7. Indemnification Section.
7.1 Indemnification by Client.. The Client agrees to indemnify, to
the fullest extent permitted by law, each Holder of Registrable Securities
and each Person who controls
Initials
the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim will not
be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
(within the meaning of the Securities Act) such Holder against all losses,
claims, damages, liabilities and expenses in connection with defending against
any such losses, claims, damages and liabilities or in connection with any
investigation or inquiry, in each case caused by or based on any untrue or
alleged untrue statement of material fact contained in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading or arise out of any violation by the Client of any rules or
regulation promulgated under the Securities Act applicable to the Client and
relating to action or inaction required of the Client in connection with such
registration, except insofar as the same are (i) contained in any information
furnished in writing to the Client by such Holder expressly for use therein,
(ii) caused by such Holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto, or (iii)
caused by such Holder's failure to discontinue disposition of shares after
receiving notice from the Client pursuant to Section 5.3 hereof. In connection
with an underwritten offering, the Client will indemnify such underwriters,
their officers and directors and each Person who controls (within the meaning of
the Securities Act) such underwriters at least to the same extent as provided
above with respect to the indemnification of the Holders of Registrable
Securities.
7.2 Indemnification by Holder. In
connection with any registration statement in which a Holder of Registrable
Securities is participating, each such Holder will furnish to the Client in
writing such information as the Client reasonably requests for use in
connection with any such registration statement or prospectus and, to the
extent permitted by law, will indemnify the Client, its directors and
officers and each Person who controls (within the meaning of the Securities
Act) the Client against any losses, claims, damages, liabilities and
expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission
or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, but only to the
extent that such untrue statement or omission is contained in any
information so furnished in writing by such Holder expressly for use in
connection with such registration; provided that the obligation to
indemnify will be individual to each Holder and will be limited to the net
amount of proceeds received by such Holder from the sale of Registrable
Securities pursuant to such registration statement. In connection with an
underwritten offering, each such Holder will indemnify such underwriters,
their officers and directors and each Person who controls (within the
meaning of the Securities Act) such underwriters at least to the same
extent as provided above with respect to the indemnification of the Client.
7.3 Assumption of Defense by Indemnifying Party. Any Person
entitled to indemnification hereunder will (a) give prompt written notice
to the indemnifying party of any claim with respect to which it seeks
indemnification and (b) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying
party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed,
7.4 Binding Effect. The indemnification provided for under this
Registration Agreement will remain in full force and effect regardless of
any investigation made by or on behalf of the indemnified party or any
officer, director or controlling Person of such indemnified party and will
survive the transfer of securities. The Client also agrees to make such
provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Client's indemnification is
unavailable for any reason. Each Holder of Registrable Securities also
agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event such
Holder's indemnification is unavailable for any reason.
Section 8. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (a) agrees to sell such Person's securities on the basis provided in
any underwriting arrangements approved by the Person or Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents required under the terms of such underwriting
arrangements.
Section 9. Miscellaneous.
9.1 No Inconsistent Agreements. The Client will not hereafter
enter into any agreement with respect to its securities which violates the
rights granted to the Holders of Registrable Securities in this
Registration Agreement.
9.2 Remedies. Any Person having rights under any provision of this
Registration Agreement will be entitled to enforce such rights specifically
to recover damages caused by reason of any breach of any provision of this
Registration Agreement and to exercise all other rights granted by law. The
parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Registration
Agreement and that any party may in its sole discretion apply to any court
of law or equity of competent jurisdiction (without posting any bond or
other security) for specific performance and for other injunctive relief in
order to enforce or prevent violation of the provisions of this
Registration Agreement.
9.3 Term. Except for the provisions of Section 7 or as
specifically otherwise provided herein, the provisions of this Registr~tion
Agreement shall apply until such time as all
Registrable Securities have ceased to be Registrable Securities
hereunder but in no event later than three years from the date of this
Registration Agreement.
9.4 Amendments and Waivers. Except as otherwise specifically
provided herein, this Registration Agreement may be amended or waived only
upon the prior written consent of the Client and of the Holders of a
majority of the then outstanding shares ofRegistrable Securities.
9.5 Successors and Assigns. Subject to Section 2 hereof, all
covenants and agreements in this Registration Agreement by or on behalf of
any of the parties hereto will bind and inure to the benefit of (i) the
respective successors and assigns of the parties hereto whether so
expressed or not and (ii) the persons referred to in clause (iv) of the
definition of Registrable Securities. In addition, whether or not any
express assignment has been made but subject in any case to Section 2
hereof, the provisions of this Registration Agreement which are for the
benefit of GAP or Holders of Registrable Securities are also for the
benefit of, and enforceable by, any subsequent holder of such securities so
long as such securities continue to be restricted securities, as that term
is defined in Securities Act Rule 144.
9.6 Severability. Whenever possible, each provision of this
Registration Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this
Registration Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Registration Agreement.
9.7 Counterparts. This Registration Agreement may be executed
simultaneously in multiple counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken
together will constitute one and the same Registration Agreement.
9.8 Descriptive Headings. The descriptive headings of this
Registration Agreement are inserted for convenience only and do not
constitute a part of this Registration Agreement.
9.9 Governing Law. All questions concerning the construction,
validity and interpretation of this Registration Agreement will be governed
by and construed in accordance with the domestic laws of the State of
Florida, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Florida or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Florida.
9.10Entire Agreement. This Registration Agreement is intended by
the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto with respect of the subject matter contained herein. This
Registration Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
9.11Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this
Registration Agreement shall be in writing and shall be deemed to have been
given when delivered personally to the recipient, sent to the recipient by
facsimile transmission, sent to the recipient by reputable express courier
service (charges prepaid) or three business days after being mailed to the
recipient by certified or registered mail, return receipt requested and
postage prepaid. Such notices, demands and other communications will be
sent to each Holder at the address indicated on the records of the Client
and to the Client at the address set forth in the Agreement or to such
other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
9 .12 Confidentiality. The Client shall hold in strict confidence
and shall not disclose information with respect to sales of Common Stock by
any Holder, including the fact of such sales, the amount of such sales and
the timing of such sales, except as such information shall become public
without violation of this Section 9.12, as may be required by applicable
law, rules or regulations or with the express written consent of such
Investor.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Agreement as of the date first above written.
Client:
By:__________ _________________
Company: Gulf Atlantic Publishing, Inc.
By: ___________________
Xxxxxx X. Xxxxxxxx, President
