EXHIBIT 10.8
PREMIER APPRAISALS, INC.
Second Amended and Restated
Registration Rights Agreement
THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS
AGREEMENT (this "Agreement") is made and entered into as of the 16th day of
June, 1998 by and among (i) PREMIER APPRAISALS, INC., a Georgia corporation (the
"Company") and (ii) CHRYSALIS VENTURES LIMITED PARTNERSHIP, a Kentucky limited
partnership, JG PARTNERSHIP, LTD., a Kentucky limited partnership, JG FUNDING,
LLC, a Kentucky limited liability company, ▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual, W.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III, an individual, ▇▇▇▇ ▇▇▇▇▇▇▇, an individual, WINDCREST
PARTNERS, a New York limited partnership, CASSELBERRY PARTNERS, L.P., a Kentucky
limited partnership, J. ▇▇▇▇▇ ▇▇▇▇▇▇▇, an individual, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an
individual, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, an individual, RICHLAND VENTURES II, L.P., a
Delaware limited partnership, ▇▇▇▇▇ GLOBAL INVESTMENTS, LTD., a limited
partnership, REMINGTON INVESTMENTS STRATEGIES, L.P., a limited partnership,
SOUTH ATLANTIC PRIVATE EQUITY FUND IV, LIMITED PARTNERSHIP, a Delaware limited
partnership, and SOUTH ATLANTIC PRIVATE EQUITY FUND IV (Q.P.), LIMITED
PARTNERSHIP, a Delaware limited partnership (each an "Investor" and collectively
the "Investors").
WHEREAS, the Company and certain of the Investors are parties
to an Amended and Restated Registration Rights Agreement dated as of May 30,
1997 (the "Registration Rights Agreement"); and
WHEREAS, the Company and the Investors desire to amend and
restate the Registration Rights Agreement with respect to the Common Stock now
owned and hereafter acquired by the Investors;
NOW, THEREFORE, in consideration of the mutual promises and
covenants set forth herein, the parties hereto agree to amend and restate the
Registration Rights Agreement, in its entirety, as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the meanings set forth below.
1.1 "Common Stock" shall mean the Company's Common Stock,
par value $.01 per share, or any capital stock exchanged therefor.
1.2 "Commission" shall mean the federal Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act.
1.3 "Demand Statement" shall have the meaning given that
term in Section 3.1 hereof.
1.4 "Exchange Act" shall mean the Securities Exchange Ac
of 1934, as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
1.5 "Holder" shall mean any Investor and any holder of
Registrable Securities to whom the registration rights conferred by this
Agreement have been transferred in compliance with Section 8 hereof.
1.6 "Initiating Holders" shall mean any Holder or
Holders who hold not less than twenty-five percent (25%) of the Registrable
Securities and who submits the Demand Statement to the Company pursuant to
Section 3.1 hereof.
1.7 "Preferred Stock" shall mean any Preferred Stock of
the Company now or hereafter outstanding.
1.8 "Registrable Securities" shall mean all Common Stock
which any of the Investors shall have acquired at any time, provided, however,
that Registrable Securities shall NOT include any shares of Common Stock which
have previously been registered or which have been sold to the public or which
have been sold in a private transaction in which the transferor's rights under
this Agreement are not assigned.
1.9 The terms "register," "registered" and "registration"
shall refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement.
1.10 "Registration Expenses" shall mean all expenses
incurred in effecting any registration pursuant to this Agreement, including,
without limitation, all registration, qualification, and filing fees, printing
expenses, escrow fees, fees and disbursements of counsel for the Company, blue
sky fees and expenses, and expenses of any regular or special audits incident to
or required by any such registration, but shall not include Selling Expenses and
fees and disbursements of counsel for the Holders (but excluding the
compensation of regular employees of the Company, which shall be paid in any
event by the Company).
1.11 "Rule 144" shall mean Rule 144 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
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1.12 "Rule 145" shall mean Rule 145 as promulgated by the
Commission under the Securities Act, as such Rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
1.13 "Securities Act" shall mean the Securities Act of
1933, as amended, or any similar successor federal statute and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
1.14 "Selling Expenses" shall mean all underwriting
discounts, selling commissions, and stock transfer taxes applicable to the sale
of Registrable Securities and fees and disbursements of counsel for any Holder
(other than the fees and disbursements of counsel included in Registration
Expenses).
2. COMPANY REGISTRATION.
2.1 If the Company shall determine to register any of its
Common Stock or Preferred Stock for its own account or for the account of any
other party, other than a registration relating solely to employee benefit
plans, or a registration relating solely to a Rule 145 transaction, or a
registration on any registration form that does not permit secondary sales, the
Company will:
[a] promptly give to each Holder written notice
thereof and of the anticipated effective date of such registration; and
[b] use its best efforts to include in such
registration (and any related qualification under blue sky laws or
other compliance), except as set forth in Section 2.2 below, and in any
underwriting involved therein, all the Registrable Securities specified
in a written request or requests, made by any Holder and received by
the Company within thirty (30) days after the written notice from the
Company described in clause [a] above is mailed or delivered by the
Company. Such written request may specify all or any part of a Holder's
Registrable Securities.
2.2 UNDERWRITING. If the registration of which the
Company gives notice is for a registered public offering involving an
underwriting, the Company shall so advise the Holders as a part of the written
notice given pursuant to Section 2.1[a]. In such event, the right of any Holder
to registration pursuant to this Section 2 shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein. All
Holders proposing to distribute their securities through such under writing
shall (together with the Company and the other holders of securities of the
Company with registration rights to participate therein distributing their
securities through such underwriting) enter into an underwriting agreement in
customary form with the representatives of the underwriter or underwriters
selected by the Company.
Notwithstanding any other provision of this Section 2, if the
representative of the underwriter(s) advises the Company in writing that
marketing factors require a limitation on the number of
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shares to be underwritten, the representative may (subject to the limitations
set forth below) exclude all Registrable Securities from, or limit the number of
Registrable Securities to be included in, the registration and underwriting. The
Company shall so advise all holders of securities requesting registration, and
the number of shares of securities that are entitled to be included in the
registration and underwriting shall be allocated first to the Company for
securities being sold for its own account and thereafter as set forth in Section
10. If any person does not agree to the terms of any such underwriting, he shall
be excluded therefrom by written notice from the Company or the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
If shares are so withdrawn from the registration or if the
number of shares of Registrable Securities to be included in such registration
was previously reduced as a result of marketing factors as determined by the
underwriters, the Company shall then offer to all persons who have retained the
right to include securities in the registration the right to include additional
securities in the registration in an aggregate amount equal to the number of
shares so withdrawn, with such shares to be allocated among the persons
requesting additional inclusion in accordance with Section 10 hereof.
3. DEMAND REGISTRATION.
3.1 DEMAND FOR REGISTRATION. At any time following the
Company's initial registered public offering of its Common Stock with the
Commission, the Initiating Holders may submit in writing to the Company a demand
that the Company effect a registration with respect to all or a part of the
Registrable Securities on Form S-3 or any related form of registration statement
(the "Demand Statement"). If the Company receives such Demand Statement from the
Initiating Holders, the Company will:
[a] promptly (but in any event with ten (10) days)
give written notice of the proposed registration to all other Holders;
and
[b] as soon as practicable, use its best efforts to
effect such registration (including, without limitation, filing
post-effective amendments, appropriate qualifications under applicable
blue sky or other state securities laws, and appropriate compliance
with the Securities Act and any other governmental requirements or
regulations) and as would permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as
are specified in such request, together with all or such portion of the
Registrable Securities of any Holder or Holders joining in such request
as are specified in a written request received by the Company within
thirty (30) business days after such written notice from the Company is
mailed or delivered.
The Company shall not be obligated to effect, or to
take any action to effect, any such registration pursuant to this
Section 3.1:
[i] In any particular jurisdiction in
which the Company would be required to execute a general
consent to service of process in effecting such registration,
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qualification, or compliance, unless the Company is already
subject to service in such jurisdiction and except as may be
required by the Securities Act;
[ii] During a 180 day period commencing
with the effective date of a registration statement for the
Company's initial public offering;
[iii] If the Company delivers notice to
the Initiating Holders within thirty (30) days of the
Company's receipt of the Demand Notice stating the Company's
intent to file a registration statement within ninety (90)
days;
[iv] If the Initiating Holders do not
request that such offering be firmly underwritten by
underwriters selected by the Initiating Holders (subject to
the consent of the Company, which consent shall not be
unreasonably withheld);
[v] If the Company and the Initiating
Holders are unable to obtain the commitment of the underwriter
described in clause [iv] above to firmly underwrite the offer;
[vi] If the Company has previously
effected two (2) demand registrations for Holders pursuant to
this Section 3.1; or
[vii] If the Initiating Holders elect to
include less than twenty-five percent (25%) of the Registrable
Securities in the proposed registration.
3.2 POSTPONED REGISTRATION. Subject to the foregoing
clauses [i] through [vii] in Section 3.1, the Company shall file a registration
statement covering the Registrable Securities so requested to be registered as
soon as practicable, but in any event within ninety (90) days after receipt of
the request or requests of the Initiating Holders; provided, however, that if
(i) in the good faith judgment of the Board of Directors of the Company, such
registration would be seriously detrimental to the Company and the Board of
Directors of the Company concludes, as a result, that it is essential to defer
the filing of such registration statement at such time, and (ii) the Company
shall furnish to such Holders a certificate signed by the President of the
Company stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company for such registration
statement to be filed in the near future and that it is, therefore, essential to
defer the filing of such registration statement, then the Company shall have the
right to defer such filing (except as provided in Clause 3.1(ii) above) for a
period of not more than ninety (90) days after receipt of the Demand Notice,
and, provided further, that the Company shall not defer its obligation in this
matter more than once in any twenty-four month period.
The registration statement filed pursuant to the request of
the Initiating Holders may, subject to the provisions of this Section 3.2 and 10
hereof, include other securities of the Company, with respect to which
registration rights have been granted, and may include securities of the Company
being sold for the account of the Company.
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3.3 UNDERWRITING. The right of any Holder to registration
pursuant to Section 3 shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Securities in
the underwriting to the extent provided herein. A Holder may elect to include in
such underwriting all or a part of the Registrable Securities he holds.
3.4 PROCEDURES. If the Company shall request inclusion in
any registration pursuant to Section 3 of securities being sold for its own
account, or if other persons shall request inclusion in any registration
pursuant to Section 3, the Initiating Holders shall, on behalf of all Holders,
offer to include such securities in the underwriting and may condition such
offer on their acceptance of the further applicable provisions of this
Agreement. The Company shall (together with all Holders and other persons
proposing to distribute their securities through such underwriting) enter into
an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected for such underwriting by a majority in
interest of the Initiating Holders, which underwriters are reasonably acceptable
to the Company. Notwithstanding any other provision of this Section 3, if the
representative of the underwriters advises the Initiating Holders in writing
that marketing factors require a limitation on the number of shares to be
underwritten, the number of shares to be included in the underwriting or
registration shall be allocated as set forth in Section 10 hereof. If a person
who has requested inclusion in such registration as provided above does not
agree to the terms of any such underwriting, such person shall be excluded
therefrom by written notice from the Company, the underwriter or the Initiating
Holders. The securities so excluded shall also be withdrawn from registration.
Any Registrable Securities or other securities excluded or withdrawn from such
underwriting shall also be withdrawn from such registration. If shares are so
withdrawn from the registration and if the number of shares to be included in
such registration was previously reduced as a result of marketing factors
pursuant to this Section 3.4, then the Company shall offer to all holders who
have retained rights to include securities in the registration the right to
include additional securities in the registration in an aggregate amount equal
to the number of shares so withdrawn, with such shares to be allocated among
such Holders requesting additional inclusion in accordance with Section 10.
4. REGISTRATION EXPENSES. All Registration Expenses incurred in
connection with any registration, qualification or compliance pursuant to
Sections 2 and 3.1 hereof shall be borne by the Company. All Selling Expenses
relating to securities so registered shall be borne by the applicable Holder.
5. REGISTRATION PROCEDURES. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will keep each
Holder electing registration advised in writing as to the initiation of each
registration and as to the material progress and completion thereof. At its
expense, the Company will use its best efforts to:
5.1 Keep such registration effective for a period of one
hundred eighty (180) days or until the Holder or Holders have completed the
distribution described in the registration statement relating thereto, whichever
first occurs; provided, however, that such 180-day period shall be extended for
a period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of
Common Stock (or other securities) of the Company;
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5.2 Prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection with such registration statement as may be necessary to comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement;
5.3 Furnish such number of prospectuses and other
documents incident thereto, including any amendment of or supplement to the
prospectus, as a Holder from time to time may reasonably request;
5.4 Cause all such Registrable Securities registered
pursuant hereunto to be listed on each securities exchange, if any, on which
similar securities issued by the Company are then listed and comply with all
applicable blue sky laws to enable the Registrable Securities to be publicly
offered and sold in the states in which such Registrable Securities will be
offered;
5.5 Provide a transfer agent and registrar for all
Registrable Securities registered pursuant to such registration statement and a
CUSIP number for all such Registrable Securities, in each case not later than
the effective date of such registration; and
5.6 In connection with any underwritten offering pursuant
to a registration statement filed pursuant to section 2 hereof, the Company will
enter into an underwriting agreement in form reasonably necessary to effect the
offer and sale of the Common Stock provided such underwriting agreement contains
customary underwriting provisions and provided further that, if the underwriter
so requests, the underwriting agreement will contain customary contribution
provisions.
6. INDEMNIFICATION.
6.1 The Company will indemnify each Holder, each of the
Company's officers, directors and partners, legal counsel, and accountants and
each person controlling such Holder within the meaning of Section 15 of the
Securities Act, with respect to which registration, qualification, or compliance
has been effected pursuant to this Agreement, and each underwriter, if any, and
each person who controls within the meaning of Section 15 of the Securities Act
any underwriter, against all expenses, claims, losses, damages, and liabilities
(or actions, proceedings, or settlements in respect thereof), arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any prospectus, offering circular, or other document (including any
related registration statement, notification, or the like) incident to any such
registration, qualification, or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Securities Act or any rule or regulation thereunder applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification, or compliance, and will
reimburse each such Holder, each of its officers, directors, partners, legal
counsel, and accountants and each person controlling such Holder, each such
underwriter, and each person who controls any such underwriter, for any legal
and any other expenses
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reasonably incurred in connection with investigating and defending or settling
any such claim, loss, damage, liability or action, provided that the Company
will not be liable in any such case to the extent that any such claim, loss,
damage, liability, or expense arises out of or is based on any untrue statement
or omission based upon written information furnished to the Company by such
Holder or underwriter and stated to be specifically for use therein. It is
agreed that the indemnity agreement contained in this Section 6.1 shall not
apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of the Company
(which consent has not been unreasonably withheld).
6.2 Each Holder will, if Registrable Securities held by
such Holder are included in the securities as to which such registration,
qualification, or compliance is being effected, indemnify the Company, each of
its directors, officers, partners, legal counsel, and accountants and each
underwriter, if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter within the
meaning of Section 15 of the Securities Act, each other such Holder and each of
their officers, directors, and partners, and each person controlling such Holder
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
prospectus, offering circular, or other document, or any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Company and such Holders, directors, officers, partners, legal counsel, and
accountants, persons, underwriters, or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability, or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular, or other document in reliance upon and in
conformity with written information furnished to the Company by such Holder and
stated to be specifically for use therein provided, however, that the
obligations of such Holder hereunder shall not apply to amounts paid in
settlement of any such claims, losses, damages, or liabilities (or actions in
respect thereof) if such settlement is effected without the consent of such
Holder (which consent shall not be unreasonably withheld); and provided that in
no event shall any indemnity under this Section 6.2 exceed the gross proceeds
from the offering received by such Holder.
6.3 Each party entitled to indemnification under this
Section 6 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party who shall conduct the defense of such claim or any litigation
resulting therefrom shall be approved by the Indemnified Party (whose approval
shall not unreasonably be withheld), and the Indemnified Party may participate
in such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 6, to the extent such
failure is not prejudicial. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement that does
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not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
6.4 If the indemnification provided for in this Section 6
is held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage, or expense referred to
herein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage, or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions of the Indemnifying Party and of the
Indemnified Party. Such relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the Indemnifying Party or by the Indemnified Party and the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission; provided that in no event shall contribution by the
Holder under this Section 6.4 exceed the gross proceeds from the offering
received by the Holder.
6.5 Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
7. INFORMATION BY HOLDER. Each Holder of Registrable Securities
shall furnish to the Company such information regarding such Holder and the
distribution proposed by such Holder as the Company may reasonably request in
writing and as shall be reasonably required in connection with any registration,
qualification, or compliance referred to in this Agreement.
8. TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The rights to
cause the Company to register securities granted to a Holder by the Company
under Section 2 or the right of the Holders to demand that the Company register
securities granted under Section 3 may be transferred or assigned by such Holder
to a transferee or assignee provided that the Company is given written notice at
the time of or within a reasonable time after said transfer or assignment,
stating the name and address of the transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned, and, provided further, that the transferee or assignee of such
rights assumes in writing the obligations of such Holder under this Agreement.
9. "MARKET STAND-OFF" AGREEMENT. If requested by the Company and an
underwriter of Common Stock (or other securities) of the Company, a Holder shall
not sell or otherwise transfer or dispose of any Common Stock (or other
securities) of the Company held by such Holder (other than those
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included in the registration) during the one hundred eighty (180) day period
following the effective date of a registration statement of the Company filed
under the Securities Act, provided that all Holders and officers and directors
of the Company are bound by and have entered into similar agreements.
The obligations described in this Section 9 shall not apply to
a registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Rule 145 transaction on Form S-4 or similar forms that may
be promulgated in the future. The Company may impose stop-transfer instructions
with respect to the shares (or securities) subject to the foregoing restriction
until the end of said one hundred eighty (180) day period.
10. ALLOCATION OF REGISTRATION OPPORTUNITIES. In any circumstance
in which all of the Registrable Securities and other shares of Common Stock of
the Company with registration rights (the "Other Shares") requested to be
included in a registration on behalf of the Holders or other selling
stockholders cannot be so included as a result of limitations on the aggregate
number of shares of Registrable Securities and Other Shares that may be so
included, the number of shares of Registrable Securities and Other Shares that
may be so included shall be allocated among the Holders and other selling
stockholders requesting inclusion of shares pro rata on the basis of the number
of shares of Registrable Securities and Other Shares that would be held by such
Holders and other selling stockholders at the time of filing the Registration
Statement; provided, however, that those Registrable Securities held by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ shall be limited or excluded completely from
the registration before the other Investors suffer any limitation or exclusion
of their Registrable Securities from such registration; and provided, further,
that such allocation shall not operate to reduce the aggregate number of
Registrable Securities and Other Shares to be included in such registration. If
any Holder or other selling stockholder does not request inclusion of the
maximum number of shares of Registrable Securities and Other Shares allocated to
him pursuant to the above-described procedure, the remaining portion of this
allocation shall be reallocated among those requesting Holders and other selling
stockholders whose allocations did not satisfy their requests pro rata on the
basis of the number of shares of Registrable Securities and Other Shares that
would be held by such Holders and other selling stockholders and this procedure
shall be repeated until all of the shares of Registrable Securities and Other
Shares which may be included in the registration on behalf of the Holders and
other selling stockholders have been so allocated. The Company shall not limit
the number of Registrable Securities to be included in a registration pursuant
to this Agreement in order to include shares held by stockholders with no
registration rights.
11. LIMITATIONS ON REGISTRATION OF OTHER SECURITIES;
REPRESENTATION. Except with respect to acquisitions of assets or any business
entity, the Company shall not, without the prior written consent of a
majority in interests of the Holders, enter into any agreement with any
holder or prospective holder of any securities of the Company giving such
holder or prospective holder any registration rights the terms of which are
as or more favorable than registration rights granted to the Holders
hereunder unless the Company shall also give such rights to the Holders
hereunder.
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12. TERMINATION OF REGISTRATION RIGHTS. All rights provided for in
Sections 2 and 3 hereof expire four (4) years after the Closing of the Company's
initial public offering. In addition, a Holder's registration rights shall
expire on such date after the Company's initial public offering that all shares
of Registrable Securities held or entitled to be held upon conversion by such
Holder could immediately be sold under Rule 144 during any consecutive 90-day
period.
13. REPORTING. The Company agrees to:
13.1 Make and keep public information available, as those
terms are understood and defined in Rule 144, at all times after ninety (90)
days after the effective date of the first registration filed by the Company for
an offering of its securities to the general public.
13.2 Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act.
14. MISCELLANEOUS.
14.1 GOVERNING LAW. This Agreement shall be governed in
all respects by the laws of the State of Georgia, as applied to agreements among
Georgia residents entered into and to be performed entirely within Georgia.
14.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
14.3 TERMINATION OF PRIOR AGREEMENT; ENTIRE AGREEMENT.
This Agreement restates and supersedes in its entirety the Amended and Restated
Registration Rights Agreement dated as of May 30, 1997 between the Company,
Chrysalis Ventures Limited Partnership, J. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, W.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III, ▇▇▇▇ ▇▇▇▇▇▇▇, JG Partnership, Ltd., Windcrest Partners,
Casselberry Partners, L.P., ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇. This
Agreement constitutes the full and entire understanding and agreement between
the parties with regard to the subjects hereof.
14.4 AMENDMENT; WAIVER. Neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated, except by a
written instrument signed by the Company and holders of a majority in interest
of the Registrable Securities at the time such instrument is executed, and any
such amendment, waiver, discharge or termination shall be binding on all the
Holders, but in no event shall the obligation of any Holder hereunder be
materially increased, except upon the written consent of such Holder.
14.5 NOTICES. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be mailed by
first class, registered, or certified mail, postage
11
prepaid, or sent via overnight reputable courier service, or delivered
personally or via facsimile with copy sent by mail as provided above:
If to Investors, to: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Chrysalis Ventures Limited Partnership,
JG Funding, LLC and
JG Partnership, Ltd.
1850 National City Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
c/o Chrysalis Ventures, Limited
Partnership
1850 National City Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Casselberry Partners, L.P.
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
12
c/o Premier Appraisals, Inc.
▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Windcrest Partners
49th Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Richland Ventures II, L.P.
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
South Atlantic Private Equity Fund IV
Limited Partnership
and
South Atlantic Private Equity Fund IV
(Q.P.), Limited Partnership
c/o ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ Global Investments, Ltd.
and
Remington Investments Strategies, L.P.
c/o Moore Capital Management, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
If to Company to: Premier Appraisals, Inc.
▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
and Chief Executive Officer
13
or to such other address of which the addressee shall have notified the sender
in writing. Notices mailed in accordance with this section shall be deemed given
three days after being mailed, notices sent by overnight courier service shall
be deemed given one day after placed in the hands of a representative of such
service and notice given by facsimile shall be deemed given on the date of
transmission subject to sender's receipt of a confirmation copy.
14.6 DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any Holder, upon any breach or default of the
Company under this Agreement shall impair any such right, power or remedy of
such Holder nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval
of any kind or character on the part of any Holder of any breach or default
under this Agreement or any waiver on the part of any Holder of any provisions
or conditions of this Agreement must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement or by law or otherwise afforded to any Holder, shall be
cumulative and not alternative.
14.7 RIGHTS; SEPARABILITY. Unless otherwise expressly provided
herein, a Holder's rights hereunder are several rights, not rights jointly held
with any of the other Holders. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
14.8 TITLES AND SUBTITLES. The titles of the paragraphs and
subparagraphs of this Agreement are for convenience of reference only and are
not to be considered in construing or interpreting this Agreement.
14.9 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument.
14.10 PREVAILING PARTY. In the event any legal action or other
proceeding is brought by a party hereto to enforce the terms of this Agreement,
the prevailing party in such action or proceeding will be entitled to reasonable
attorneys', paralegals' and accountants' fees and costs incurred before and at
trial and at all appellate levels, in addition to all awards, judgments and
recoveries of damages obtained.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the day and year first written above.
14
"COMPANY"
PREMIER APPRAISALS, INC.
------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President and
Chief Executive Officer
"INVESTORS"
CHRYSALIS VENTURES LIMITED
PARTNERSHIP
By: ______________________________________
Its: General Partner
JG PARTNERSHIP, LTD.
By: ______________________________________
Its: General Partner
JG FUNDING, LLC
By: ______________________________________
Its: ______________________________________
CASSELBERRY PARTNERS, L.P.
By________________________________________
Its: General Partner
15
________________________________________
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
________________________________________
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III
________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇
________________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
WINDCREST PARTNERS
By:_______________________________________
A General Partner
RICHLAND VENTURES II, L.P.
By:_______________________________________
Its:_______________________________________
SOUTH ATLANTIC PRIVATE EQUITY FUND IV,
LIMITED PARTNERSHIP
16
By: South Atlantic Private Equity Partners,
Limited Partnership, Its General Partner
By:_______________________________________
Its:_______________________________________
SOUTH ATLANTIC PRIVATE EQUITY FUND IV,
(Q.P.), LIMITED PARTNERSHIP
By: South Atlantic Private Equity Partners,
Limited Partnership, Its General Partner
By:_______________________________________
Its:_______________________________________
▇▇▇▇▇ GLOBAL INVESTMENTS, LTD.
By:_______________________________________
______________ of ▇▇▇▇▇ Capital Management
Its: Trading Advisor
REMINGTON INVESTMENTS STRATEGIES, L.P.
By:_______________________________________
_____________ of ▇▇▇▇▇ Capital Advisors, LLC
Its: General Partner
17