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EXHIBIT 10.11
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this Agreement), dated as of
January ____, 1998, is by and among Club Xxxxxx Resorts, Inc., a Nevada
corporation (the Company), and those stockholders of the Company listed on
Schedule A (collectively, the Stockholders).
RECITALS
A. The Stockholders own that number of shares of common stock,
par value $.001 (the Common Stock), of the Company set forth
beside each Stockholder's name on the signature page hereof.
B. The Company desires to grant the Stockholders the registration
rights contained herein and the Stockholders desire to provide
for the controlled distribution of their shares of common
stock.
AGREEMENT
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each Stockholder and the Company, the parties hereto agree as
follows:
SECTION 1
DEFINITIONS
1.1 SPECIFIC DEFINITIONS. The following terms are defined as
follows:
Affiliate shall have the meaning indicated in Rule 12b-2 under the
Exchange Act.
Board shall mean the board of directors of the Company.
Common Stock shall have the meaning indicated in the Recitals.
Effective Time shall mean the date that is 180 days after an IPO.
Exchange Act shall mean the Securities Exchange Act of 1934, as
amended.
Indemnified Party shall have the meaning indicated in Section 6.3.
Indemnifying Party shall have the meaning indicated in Section 6.3.
Inspectors shall have the meaning indicated in Section 3.1 (1).
IPO shall mean the first firm, underwritten, public offering of the
Company's common stock pursuant to a registration statement filed with the
Securities and Exchange Commission.
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Loss or Losses shall have the meaning indicated in Section 6. 1.
Person shall mean any business entity (including, without limitation,
a corporation, partnership (limited or general), limited liability company or
business trust) or a natural person.
Prospectus shall have the meaning indicated in Section 6. 1.
Register, registered and registration and words of similar import
shall mean a registration effected by preparing and filing with the SEC a
registration statement in compliance with the Securities Act, and the
declaration and ordering by the SEC of effectiveness of such registration
statement or document.
Registrable Common Stock shall mean (i) at or prior to the Effective
Time, any Common Stock held or acquired by any Stockholder (or its permitted
assigns) and any securities issued or issuable in respect of any Registrable
Common Stock by way of any stock split or stock dividend or in connection with
any combination of shares, recapitalization, merger, consolidation,
reorganization or otherwise and (ii) after the Effective Time, any Common Stock
issued pursuant to a resolution of the Board stating that such Common Stock
shall be deemed Registrable Common Stock under this Agreement.
SEC shall mean the United States Securities and Exchange Commission.
Securities Act shall mean the Securities Act of 1933, as amended.
SECTION 2
REGISTRATION RIGHTS
2.1 PIGGYBACK REGISTRATION RIGHTS.
(a) If at any time from and after an IPO the Company shall propose
to register any Common Stock for public sale under the Securities Act, the
Company shall give the Stockholders prompt written notice of the proposed
registration and shall include in such registration on the same terms and
conditions as the other securities included in such registration such number of
shares of Registrable Common Stock as the Stockholders shall request within 10
business days after the giving of such notice; provided, however, that the
Company may at any time prior to the effectiveness of any such registration
statement, in its sole discretion and without the consent of any Stockholder,
abandon the proposed offering in which any Stockholder had requested to
participate; and provided further that any Stockholder shall be entitled to
withdraw any or all of its shares of Registrable Common Stock to be included in
a registration statement under this Section 2.1(a) at any time prior to the
date on which the registration statement with respect to such shares of
Registrable Common Stock is declared effective by the SEC. The Company shall be
entitled to select the investment bankers and/or managers, if any, to be
retained in connection with any registration referred to in this Section
2.1(a).
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(b) RESTRICTIONS ON PIGGYBACK REGISTRATION RIGHTS.
Notwithstanding anything to the contrary contained elsewhere herein, the
registration rights granted to the Stockholders in Section 2.1(a) are expressly
subject to the following terms and conditions:
(i) The Company shall not be obligated to include the
number of shares of Registrable Common Stock in an offering as contemplated by
Section 2.1(a) if the managing underwriter or underwriters of a proposed
underwritten offering advise the Company in writing that in its or their good
faith judgment the total amount of securities, including securities requested
to be included in a registration of Company Common Stock pursuant to this
Section 2.1 and other similar securities, to be included in such offering may
jeopardize the success of such offering by the inclusion of such number (or a
portion of such number) of shares (after consideration of all relevant factors
including, without limitation, the impact of any delay caused by including such
shares).
(ii) The Company shall not be obligated to include any
shares of Registrable Common Stock in any registration by the Company of any
Common Stock in connection with any merger, acquisition, exchange offer, or any
other business combination, including any transaction within the scope of Rule
145 promulgated pursuant to the Securities Act, subscription offer, dividend
reinvestment plan or stock option or other director or employee incentive or
benefit plan.
(iii) The Company shall not be required to include a
Stockholder's Registrable Common Stock in an offering unless such Stockholder
accepts the terms of the underwriting agreement between the Company and the
managing underwriter or underwriters and otherwise complies with the provisions
of Section 6. If the Stockholder accepts the terms of the underwriting
agreement and otherwise complies with the provisions of Section 6, then the
securities to be included in such offering shall be allocated first to the
Company and then, to the extent that any additional securities can, in the good
faith judgment of such managing underwriter or underwriters, be sold without
creating any such jeopardy to the success of such offering, pro rata among each
Person participating in the offering based upon the number of shares of Common
Stock initially requested to be sold by each such holder.
(iv) If some but less than all of a Stockholder's shares
of Registrable Common Stock are included in an offering contemplated by a
registration statement pursuant to Section 2.1(a), such Stockholder shall
execute one or more "lockup" letters, in customary form, setting forth an
agreement by such Stockholder not to offer for sale, sell, grant any option for
the sale of, or otherwise dispose of, directly or indirectly, any shares of
Common Stock, or any securities convertible into or exchangeable into or
exercisable for any shares of Common Stock, for such period not to exceed six
months from the date such offering commences, which the managing underwriter or
underwriters of such offering may reasonably request.
2.2 DEMAND REGISTRATION RIGHTS.
(a) (i) Upon receipt of a written request from holders of
more than 50% of the Registrable Common Stock after the Effective Time, to
register under the Securities Act (whether for purposes of a public offering,
an exchange offer or otherwise) all or part of the Registrable Common Stock
held by such Stockholders, the Company shall as expeditiously as reasonably
possible prepare and file, and use its best efforts to cause to become
effective as soon thereafter as practicable, a registration statement under the
Securities Act to effect the offering of such
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Registrable Common Stock in the manner specified in such request, including,
without limitation, on a "shelf" or "delayed" basis; and (ii) the Company shall
be entitled to select and retain one or more investment bankers or managers
reasonably acceptable to the Stockholders in connection with any underwritten
offerings made pursuant to this Section 2.2.
(b) TERMS AND CONDITIONS OF DEMAND REGISTRATION RIGHTS.
Notwithstanding anything to the contrary contained elsewhere herein, the
registration rights granted to the Stockholders in Section 2.2(a) are expressly
subject to the following terms and conditions:
(i) Upon receipt of a request to register Registrable
Common Stock pursuant to Section 2.2(a), the Company shall give the
Stockholders prompt written notice of the proposed registration and will give
such Stockholders the right to include their shares of Registrable Common Stock
in such registration on the same terms and conditions as the requesting
Stockholders. Each Stockholder so notified shall have 20 days to request that
their Registrable Common Stock be included in such registration. Failure to so
request shall be deemed a waiver of such Stockholder's rights with respect to
such registration unless such registration is not completed.
(ii) The Company shall not be required to include a
Stockholder's Registrable Common Stock in an offering unless such Stockholder
accepts the terms of the underwriting agreement between the Company and the
managing underwriter or underwriters and otherwise complies with the provisions
of Section 6. If the Stockholder accepts the terms of the underwriting
agreement and otherwise complies with the provisions of Section 6, then the
securities to be included in such offering shall be allocated first to the
Stockholders requesting registration of their Registrable Common Stock
hereunder, and then, to the extent that any additional securities can, in the
good faith judgment of such managing underwriter or underwriters, be sold
without creating any such jeopardy to the success of such offering, among the
Company and other Persons having the right to register securities in connection
with such registration. To the extent it is impracticable to include all of the
Registrable Common Stock requested to be included in such registration, then
the shares of Registrable Common Stock to be sold shall be allocated pro rata
among each Stockholder participating in the offering based upon the number of
shares of Registrable Common Stock initially requested to be sold by each such
Stockholder. If the underwriters determine that less than 25% of the original
shares of Registrable Common Stock requested to be included in such
registration cannot be registered, then the holders of 51% of the Registrable
Common Stock requested to be included may withdraw the request for registration
and such request shall not count hereunder.
(iii) The Stockholders shall be entitled to one request to
register Registrable Common Stock under the terms of Section 2.2(a). Each such
request shall include a request as to whether the requesting Stockholders
desire such registration to be a firm underwritten registration or a continuous
or "shelf" registration; provided that the Company shall not be required to
comply with a request for a "shelf" registration if its Board of Directors
determines that such an action would be harmful to the Company's stock price or
otherwise. A "request" as it is used in this subparagraph (iii) shall be deemed
to have occurred only upon completion of a requested registration and the
subsequent sale of Registrable Common Stock.
(iv) In no event shall the Registrable Common Stock to be
offered under a registration statement prepared and filed pursuant to Section
2.2(a) constitute less than 5% of the
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then outstanding shares of Common Stock, unless the shares of Registrable Common
Stock to be offered comprise all of the shares of Registrable Common Stock held
by all of the Stockholders. For purposes of meeting the 5% threshold of this
Section 2.2(b)(iv), the Stockholders may aggregate their shares of Registrable
Common Stock to be included therein.
(v) The Company shall be entitled to defer for a
reasonable period of time, but not in excess of 90 days, the filing of any
registration statement otherwise required to be prepared and filed by it under
Section 2.2(a) if the Company notifies the Stockholders having made a
registration request within ten business days after the Company has received
the registration request under Section 2.2 that the Company (i) is at such time
conducting or about to conduct an underwritten public offering of its
securities for its own account and the Board determines in good faith that such
offering would be materially adversely affected by such registration requested
by the Stockholders or (ii) would be required to disclose in such registration
statement information not otherwise then required by law to be publicly
disclosed and, in the good faith judgment of the Board, such disclosure might
adversely affect any material business transaction or negotiation in which the
Company is then engaged. If the Company elects to defer the filing of a
registration statement pursuant to this Section 2.2(b)(v), the Stockholders may
withdraw their request, in writing, during the time of such deferral and such
request shall not be counted toward the limit set forth in Section 2.2(b)(iii).
(vi) The Stockholders shall not be entitled to exercise
their rights pursuant to Section 2.2(a) during the 180-day period immediately
following the effective date of any registration statement filed by the Company
under the Securities Act (other than on Form S-8 or another similar form) in
respect of an offering or sale of securities of the Company by or on behalf of
the Company or any other stockholder of the Company.
(vii) If some but less than all of a Stockholder's shares
of Registrable Common Stock are included in an offering contemplated by a
registration statement pursuant to Section 2.2(a) and the offering is an
underwritten offering, such Stockholder shall execute one or more "lockup"
letters, in customary form, setting forth an agreement by such Stockholder not
to offer for sale, sell, grant any option for the sale of, or otherwise dispose
of, directly or indirectly, any shares of Common Stock, or any securities
convertible into or exchangeable into or exercisable for any shares of Common
Stock, for a period of not longer than that which any investment banker or
manager engaged in connection with such offering may reasonably request from
the date such offering commences.
SECTION 3
COVENANTS
3.1 COVENANTS OF THE COMPANY. In connection with any offering of
shares of Registrable Common Stock pursuant to this Agreement, the Company
shall:
(a) Prepare and file with the Commission such amendments
and post-effective amendments to the registration statement as may be
necessary to keep the registration statement effective for a period of
not less than 120 days, or such shorter period which will terminate
when all Registrable Common Stock covered by such registration
statement have been sold or withdrawn at the request of participating
holders of Common
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Stock and cause the prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act;
(b) Make available to each Stockholder and to each
managing underwriter, if any, (i) at least two business days prior to
filing with the SEC, any registration statement covering shares of
Registrable Common Stock, any amendment or supplement thereto, and any
prospectus used in connection therewith, which documents will be
subject to the reasonable review of such Stockholders and such
underwriter, and, with respect to a registration statement prepared
pursuant to Section 2, the Company shall not file any such documents
with the SEC to which any such Stockholder shall reasonably object;
and (ii) a copy of any and all transmittal letters or other
correspondence with the SEC or any other governmental agency or
self-regulatory body or other body having jurisdiction (including any
domestic or foreign securities exchange) relating to such offering of
shares of Registrable Common Stock;
(c) Furnish to each Stockholder and each managing
underwriter, if any, such number of copies of such registration
statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein) and the prospectus included in such registration statement
(including each preliminary prospectus and prospectus supplement) as
such Stockholder or such underwriter may reasonably request to
facilitate the sale of the shares of Registrable Common Stock;
(d) After the filing of such registration statement,
promptly notify each Stockholder of any stop order issued or, to the
knowledge of the Company, threatened to be issued by the SEC and
promptly take all reasonable actions to prevent the entry of such stop
order or to obtain its withdrawal if entered;
(e) Use its commercially reasonable efforts to qualify
such shares of Registrable Common Stock for offer and sale under the
securities, "blue sky" or similar laws of such jurisdictions
(including any foreign country or any political subdivision thereof in
which shares of Common Stock are then listed) as any Stockholder or
any underwriter shall reasonably request and use its commercially
reasonable effort, to obtain all appropriate registrations, permits
and consents required in connection therewith, except that the Company
shall not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction where it is not
so qualified, or to subject itself to taxation or to file a general
consent to service of process in any such jurisdiction;
(f) Furnish to each managing underwriter, if any, an
opinion of counsel for the Company addressed to each of them, dated as
of the date of the closing of the offering of shares of Registrable
Common Stock, and a "comfort" letter or letters signed by the
Company's independent public accountants, each in reasonable and
customary form and covering such matters of the type customarily
covered by opinions or comfort letters delivered by such parties in
underwritten public offerings, and use its commercially reasonable
efforts to have copies of such opinions and comfort letters delivered
to each Stockholder participating in the offering;
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(g) Promptly inform each Stockholder (i) in the case of
any offering of shares of Registrable Common Stock in respect of which
a registration statement is filed under the Securities Act, of the
date on which such registration statement or any post-effective
amendment thereto becomes effective and, if applicable, of the date of
filing a Rule 430A prospectus (and, in the case of an offering abroad
of shares of Registrable Common Stock, of the date when any required
filing under the securities and other laws of such foreign
jurisdictions shall have been made and when the offering may be
commenced in accordance with such laws) and (ii) of any request by the
SEC, any securities exchange, government agency, self-regulatory body
or other body having jurisdiction for any amendment of or supplement
to any registration statement or preliminary prospectus or prospectus
included therein or any offering memorandum or other offering document
relating to such offering;
(h) Subject to Section 3.1(i), until the earlier of (i)
such time as all of the shares of Registrable Common Stock being
offered have been disposed of in accordance with the intended method
of disposition by such Stockholder set forth in the registration
statement or other offering document (and the expiration of any
prospectus delivery requirements in connection therewith) or (ii) the
expiration of 120 days after such registration statement or other
offering document becomes effective (unless the offering is a
continuous offering of securities under Rule 415, in which case until
the earliest of the date the offering is completed and the second
anniversary of such effective date; provided, that if the
effectiveness of such registration statement is suspended for any
reason, then the period contemplated by clause (i) above shall extend
for the time such registration statement's effectiveness was
suspended) keep effective and maintain any registration, qualification
or approval obtained in connection with the offering of the shares of
Registrable Common Stock, and amend or supplement the registration
statement or prospectus or other offering document used in connection
therewith to the extent necessary to comply with applicable securities
laws;
(i) Use its commercially reasonable efforts to have the
shares of Registrable Common Stock listed on any domestic and foreign
securities exchanges on which the Common Stock is then listed;
(j) As promptly as practicable, notify each Stockholder
at any time when a prospectus relating to the sale of the shares of
Registrable Common Stock is required by law to be delivered in
connection with sales by an underwriter or dealer, of the occurrence
of an event requiring the preparation of a supplement or amendment to
such prospectus so that, as thereafter delivered to the purchasers of
such shares, such prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statement therein, in light of the
circumstances under which they were made, not misleading, and as
promptly as practicable make available to each Stockholder and to each
managing underwriter, if any, any such supplement or amendment; if the
Company shall give such notice, the Company shall extend the period
during which such registration statement shall be maintained effective
as provided in Section 3.1(a) or Section 3.1(i) by the number of days
during the period from and including the date of the giving of such
notice to the date when the Company shall make available to each
Stockholder such supplemented or amended prospectus;
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(k) Make available for inspection during the normal
business hours of the Company by any Stockholder, any underwriter
participating in such offering, and any attorney, accountant or other
agent retained by any such Stockholder or any such underwriter in
connection with the sale of shares of Registrable Common Stock
(collectively, the Inspectors), all relevant financial and other
records, pertinent corporate documents and properties of the Company
as shall be reasonably necessary to enable them to exercise their due
diligence responsibility, and cause the officers, directors and
employees of the Company to supply all information reasonably
requested by any such Inspector in connection with such registration
statement; provided, however, that (i) in connection with any such
inspection, any such Inspectors shall cooperate to the extent
reasonably practicable to minimize any disruption to the operation by
the Company of its business and (ii) any records, information or
documents shall be kept confidential by such Inspectors, unless (A)
such records, information or documents are in the public domain or
otherwise publicly available or (B) disclosure of such records,
information or documents is required by a court or administrative
order or by applicable law and notice of such requirement is promptly
given to the Company after being received;
(l) Enter into usual and customary agreements (including
an underwriting agreement in usual and customary form) and take such
other actions as are reasonably required to expedite or facilitate the
sale of the Registrable Common Stock.
(m) Make "generally available to its security holders"
(within the meaning of Rule 158 under the Securities Act) an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder no later than 45 days after the end of the
12-month period beginning with the first day of the Company's first
fiscal quarter commencing after the effective date of the registration
statement, which earnings statement shall cover said 12-month period;
(n) If requested by the managing underwriter or
underwriters or the Stockholder, promptly incorporate in a prospectus
supplement or post-effective amendment such information as the
managing underwriter or underwriters or any participating Stockholder,
as the case may be, reasonably requests to be included therein,
including, without limitation, information with respect to the number
of shares of Registrable Common Stock being sold by the Stockholder to
any underwriter or underwriters, the purchase price being paid
therefor by such underwriter or underwriters and with respect to any
other terms of an underwritten offering of the Registrable Common
Stock to be sold in such offering, and promptly make all required
filings of such prospectus by supplement or post-effective amendment;
and
(o) Take all other commercially reasonable steps
necessary to effect the registration of the Registrable Common Stock
contemplated hereby.
3.2 COVENANT OF STOCKHOLDERS. Each Stockholder agrees and
covenants that, upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 3.1(i), such Stockholder will
forthwith discontinue disposition of Registrable Common Stock pursuant to the
registration statement covering such Registrable Common Stock until such
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Stockholder's receipt of the copies of the supplemented or amended prospectus
contemplated by Section 3.1(i), and, if so directed by the Company, such
Stockholder will deliver to the Company all copies, other than permanent file
copies, then in such Stockholder's possession of the most recent prospectus
covering such Registrable Securities at the time of receipt of such notice.
SECTION 4
RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND OTHERS
The Company agrees not to effect any public sale or distribution of
any securities during the 180-day period commencing on the effective date of a
registration statement filed pursuant to Section 2.2, except in connection with
any merger, acquisition, exchange offer, or any other business combination,
including any transaction within the scope of Rule 145 promulgated pursuant to
the Securities Act, subscription offer, dividend reimbursement plan or stock
option or other director or employee incentive or benefit plan;
SECTION 5
EXPENSES
All expenses incurred in connection with the registration of
Registrable Common Stock, including, without limitation, all filing fees,
escrow fees, fees and expenses of compliance with securities or blue sky laws
(including fees and disbursements, if any, of the Company's counsel in
connection with blue sky qualifications of the Registrable Common Stock),
rating agency fees, printing expenses, messenger and delivery expenses,
internal expenses (including, without limitation, all salaries and expenses of
the Company's officers and employees performing legal or accounting duties),
the fees and expenses incurred in connection with the listing of the securities
to be registered on each securities exchange on which similar securities issued
by the Company are then listed, and fees and disbursements of counsel for the
Company and the Company's independent certified public accountants (including
the expenses of any special audit or "cold comfort" letters required by or
incident to such performance) directly attributable to the registration of
securities, Securities Act liability insurance (if the Company elects to obtain
such insurance), and the fees and expenses of any special experts or other
persons retained by the Company will be borne by the Company. The Company shall
have no obligation to pay and shall not pay any underwriting fees, discounts or
commissions in connection with any Registrable Common Stock registered pursuant
to this Agreement or any out-of-pocket expenses (including, without limitation,
legal fees) of the holders thereof in connection therewith.
SECTION 6
INDEMNIFICATION
6.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Stockholder, its officers, directors and
agents, and will agree to indemnify and hold harmless any underwriter of
Registrable Common stock, and each person, if any, who controls any of the
foregoing persons within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (individually, a Loss; collectively, Losses) arising
from or caused by (a) any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus
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relating to the Registrable Common Stock (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by 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 (b) any violation or alleged violation
by the Company of the Securities Act, any blue sky laws, securities laws or
other applicable laws of any state in which shares of Registrable Common Stock
are offered and relating to action or inaction required of the Company in
connection with such offering; and will reimburse each such person for any
legal or other out-of-pocket expenses reasonably incurred in connection with
investigating, or defending against, any such Loss (or any proceeding in
respect thereof), subject to Section 6.3, except that the indemnification
provided for in this Section 6.1 shall not apply to Losses that are caused by
any such untrue statement or omission or alleged untrue statement or omission
based upon and in conformity with information furnished in writing to the
Company by or on behalf of any Stockholder expressly for use therein.
Notwithstanding the foregoing, the Company shall not be liable in any such case
to the extent that any such Loss arises out of, or is based upon, an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus if (i) a Stockholder failed to send or deliver a
copy of the prospectus included in the relevant registration statement at the
time it became effective (the Prospectus) with or prior to the delivery of
written confirmation of the sale of Registrable Common Stock to the person
asserting such Loss or who purchased such Registrable Common Stock which are
the subject thereof if, in either case, such delivery is required by the
Securities Act and (ii) the Prospectus would have corrected such untrue
statement or omission or alleged untrue statement or alleged omission; and the
Company shall not be liable in any such case to the extent that any such Loss
arises out of, or is based upon, an untrue statement or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact in the Prospectus, if such untrue statement or alleged untrue
statement or omission or alleged omission is corrected in any amendment or
supplement to the Prospectus and if, having previously been furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, a Stockholder thereafter fails to deliver such Prospectus as so
amended or supplemented prior to or concurrently with the sale of Registrable
Common Stock if such delivery is required by the Securities Act.
6.2 INDEMNIFICATION BY STOCKHOLDERS. Each Stockholder agrees to
indemnify and hold harmless the Company, its officers and directors, and each
person, if any, who controls the Company within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent
as the indemnity made pursuant to Section 6.1(a) from the Company to such
Stockholder, but only with reference to (a) information furnished in writing by
or on behalf of such Stockholder expressly for use in any registration
statement or prospectus relating to shares of Registrable Common Stock, or any
amendment or supplement thereto, or any preliminary prospectus or (b) any
Losses of the Company that would not have been incurred but for such
Stockholder failing to deliver an amended Prospectus as contemplated by the
last sentence of Section 6.1.
6.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 6.1 or
6.2, such person (the Indemnified Party) shall promptly notify the person
against whom such indemnity may be sought (the Indemnifying Party) in writing,
provided that the omission to so notify the Indemnifying Party will not relieve
the Indemnifying
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Party of any liability it may have under this Agreement or otherwise except to
the extent of any Loss arising from such omission. The Indemnifying Party, upon
the request of the Indemnified Party, shall retain counsel reasonably
satisfactory to such Indemnified Party to represent such Indemnified Party and
any others the Indemnifying Party may designate in such proceeding and shall
pay the fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any Indemnified Party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (a) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention, (b) the Indemnifying Party
shall have failed to comply with its obligations under the preceding sentence
or (c) the Indemnified Party shall have been advised by the Indemnifying
Party's counsel in writing that actual or potential differing interests exist
between the Indemnifying Party and the Indemnified Party. The Indemnifying
Party shall not be liable for any settlement of any proceeding effected without
its written consent, which consent shall not be unreasonably withheld. The
Indemnifying Party shall not agree to any settlement as the result of which any
remedy or relief, other than monetary damages for which the Indemnifying Party
shall be fully responsible, shall be applied to or against an Indemnified Party
without the prior written consent of such Indemnified Party.
6.4 CONTRIBUTION. If the indemnification provided for in this
Section 6.4 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any Losses referred to therein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such Losses in
such proportion to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a
material fact, has been made by, or relates to information supplied by, such
Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a result of the Losses
referred to above shall be deemed to include, subject to the limitations set
forth in Section 6.3, any legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding. No party
shall be liable for contribution with respect to any action or claim settled
without its written consent, which consent shall not be unreasonably withheld.
Notwithstanding the provisions of this Section 6.4, no Stockholder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Common Stock of such Stockholder was
offered to the public exceeds the amount of any damages which such Stockholder
has otherwise been required to pay due to such untrue or alleged untrue
statement or omission of alleged omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6.4 were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
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SECTION 7
TERMINATION
This Agreement shall terminate with respect to any Stockholder and
their Common Stock upon the earlier of (a) the first such instance as such
Stockholder ceases to own any shares of Common Stock or (b) with respect to
Stockholders that hold less than 10% of the issued and outstanding Common Stock
(other than with respect to any such Stockholder that is an Affiliate of the
Company), the second anniversary (or if the holding period for non affiliates
contemplated by Rule 144(d)(1) under the Securities Act is amended, such amount
of time) of the date such Stockholder purchased the last share of Common Stock
that such Stockholder purchased from the Company. For this Section 7, a
Stockholder shall be deemed to own any and all Common Stock owned by (i) such
Stockholder and (ii) its Affiliates. Notwithstanding the foregoing, the
Company's and Stockholders' rights, duties and obligations under Section 5 and
Section 6 shall survive the termination of this Agreement.
SECTION 8
AVAILABLE INFORMATION
The Company shall take such reasonable actions and file such
information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144 and Rule 144A, or any successor
provisions.
SECTION 9
ASSIGNMENT OF RIGHTS
9.1 ASSIGNMENT OF RIGHTS. The rights of any Stockholder under this
Agreement with respect to any Registrable Common Stock owned by such
Stockholder may not be assigned, except to (i) an Affiliate, (ii) an employee
(or controlled Affiliate thereof) of a Stockholder, or (iii) another
Stockholder having rights to register securities hereunder.
SECTION 10
MISCELLANEOUS
10.1 PROVISION OF INFORMATION. Each Stockholder shall, and shall
cause it officers, directors, employees and agents to complete and execute all
such questionnaires as the Company shall reasonably request in connection with
any registration pursuant to this Agreement.
10.2 INJUNCTIONS. Irreparable damage would occur if any of the
provisions of this Agreement were not performed in accordance with its
specified terms or were otherwise breached. Therefore, the parties hereto shall
be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically the terms of
provisions hereof in any court having jurisdiction, such remedy being in
addition to any other remedy to which they may be entitled at law or in equity.
10.3 SEVERABILITY. If any term or provision of this Agreement is
held by a court of competent jurisdiction to be unenforceable, the remainder of
the terms and provisions set forth
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herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated, and the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term or provision.
10.4 FURTHER ASSURANCES. Subject to the specific terms of this
Agreement, each Stockholder and the Company shall make, execute, acknowledge
and deliver such other instruments and documents, and take all such other
actions, as may be reasonably required to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby.
10.5 ENTIRE AGREEMENT; MODIFICATION. This Agreement contains the
entire understanding of the parties with respect to the transactions
contemplated hereby and supersedes all agreements and understandings entered
into prior to the execution hereof. This Agreement may be modified or
provisions may be waived hereunder only by a written instrument duly executed
by or on behalf of the Company and other Stockholders who collectively own in
excess of 50% of the Registrable Common Stock; provided that no such amendment
which materially and adversely effects less than all holders of Registrable
Common Stock shall be effective except with respect to such materially and
adversely affected holders that consent to such amendment in writing. In
addition, shares of Common Stock and Stockholders may be added to this
Agreement upon the resolution of a majority of the Board of Directors of the
Company to such effect.
10.6 COUNTERPARTS. For the convenience of the parties hereto, any
number of counterparts of this Agreement may be executed by the parties hereto,
but all such counterparts shall be deemed one and the same instrument.
10.7 NOTICES. All notices, consents, requests, demands, and other
communications hereunder shall be in writing and shall be given by hand or by
mail (return receipt requested) or sent by overnight delivery service, cable,
telegram, or facsimile transmission to the parties at the address specified
beside each party's name on the signature pages hereto or at such other address
as shall be specified by the parties by like notice.
Notice so given shall, in the case of notice so given by mail, be
deemed to be given and received on the fourth business day after posting, in
the case of notice so given by overnight delivery service, on the day after
notice is deposited with such service, and in the case of notice so given by
cable, telegram, facsimile transmission or, as the case may be, personal
delivery, on the date of actual delivery.
10.8 GOVERNING LAW. This Agreement is governed by the laws of the
state of Texas without regard to any choice of law principles.
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10.9 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
and shall inure to the benefit of and be enforceable by and against the
successors and permitted assigns of the parties hereto, including and without
the need for an express assignment, subsequent holders of Registrable Common
Stock that are permitted assigns pursuant to Section 9.1. Except as provided
herein, the parties may not assign their rights under this Agreement and the
Company may not delegate its obligations under this Agreement. Any attempted
assignment or delegation prohibited hereby shall be void.
10.10 PARTIES IN INTEREST. Except as otherwise specifically provided
herein, nothing in this Agreement expressed or implied is intended or shall be
construed to confer any right or benefit upon any person, firm or corporation
other than Stockholder and the Company and their respective successors and
permitted assigns.
10.11 SHARES SUBJECT TO THIS AGREEMENT; EFFECTIVE TIME. All shares
of Registrable Common Stock owned or acquired by any Stockholder at or after
the Effective Time shall be subject to, and entitled to the benefit of this
Agreement, such rights to be effective from and after the Effective Time.
IN WITNESS WHEREOF, Each Stockholder and the Company have caused this
Agreement to be duly executed as of the date first above written.
[STOCKHOLDER]
Number of Shares of
Common Stock: [________]
Address: By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
CLUB XXXXXX RESORTS, INC.
Address: By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
10,000 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
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