EXHIBIT 10.5
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REGISTRATION RIGHTS AGREEMENT
Dated as of December 31, 2001
by and among
INTREPID CAPITAL CORPORATION
and
AJG FINANCIAL SERVICES, INC.
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TABLE OF CONTENTS
1. DEFINITIONS......................................................... 1
2. DEMAND REGISTRATION................................................. 3
(A) REQUEST FOR REGISTRATION................................... 3
(B) EFFECTIVE REGISTRATION AND EXPENSES........................ 3
(C) UNDERWRITTEN OFFERING...................................... 4
(D) EXCEPTIONS................................................. 4
3. PIGGYBACK REGISTRATION.............................................. 5
(A) RIGHT TO PIGGYBACK......................................... 5
(B) PIGGYBACK EXPENSES......................................... 5
(C) PRIORITY ON PIGGYBACK REGISTRATIONS........................ 5
(D) SELECTION OF UNDERWRITERS.................................. 6
4. MANDATORY REGISTRATION.............................................. 6
(A) INCLUSION OF UNREGISTERED REGISTRABLE SECURITIES........... 6
(B) MANDATORY REGISTRATION EXPENSES............................ 6
(C) UNDERWRITTEN OFFERING...................................... 6
(D) DURATION OF SHELF REGISTRATION............................. 6
5. REGISTRATION PROCEDURES............................................. 7
6. INDEMNIFICATION; CONTRIBUTION.......................................11
(A) INDEMNIFICATION BY THE COMPANY.............................11
(B) INDEMNIFICATION BY HOLDERS.................................12
(C) CONDUCT OF INDEMNIFICATION PROCEEDINGS.....................12
(D) CONTRIBUTION...............................................13
7. RULE 144 REPORTING..................................................14
8. RESTRICTIONS ON TRANSFER OF SHARES..................................14
9. MISCELLANEOUS.......................................................15
(A) AMENDMENTS AND WAIVERS.....................................15
(B) NOTICES....................................................15
(C) SUCCESSORS AND ASSIGNS.....................................16
(D) COUNTERPARTS...............................................16
(E) HEADINGS...................................................16
(F) GOVERNING LAW..............................................16
(G) SPECIFIC PERFORMANCE.......................................16
(H) SEVERABILITY...............................................16
(I) ENTIRE AGREEMENT...........................................16
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of December 31, 2001, by and among INTREPID CAPITAL CORPORATION,
a Delaware corporation (the "Company"), and AJG FINANCIAL SERVICES, INC., a
Delaware corporation (including its successors, assigns and transferees, the
"Holder(s)").
WHEREAS, on the date hereof Holder provided a $3,500,000 bridge loan
("Bridge Loan") to the Company, which bridge loan is convertible indirectly into
shares of common stock of the Company upon the satisfaction of certain
conditions precedent, and has entered into that certain Investment Agreement
with the Company, dated as of December 31, 2001 (the "Investment Agreement")
pursuant to which the Holder may become the holder of additional shares of
Common Stock of the Company in connection with the transactions (the
"Transactions") contemplated by the Investment Agreement; and
WHEREAS, as a condition to providing the Bridge Loan and the execution
of the Investment Agreement, the parties agreed to enter into this Agreement;
NOW, THEREFORE, the parties hereto, in consideration of the foregoing,
the mutual covenants and agreements hereinafter set forth, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
"Affiliate" shall have the meaning ascribed to it in the Exchange Act.
"Common Shares" shall mean the shares of common stock, par value $.01
per share, of the Company.
"Company" shall mean Intrepid Capital Corporation, a Delaware
corporation, and its successors.
"Company Notice" shall have the meaning set forth in Section 2(a).
"Demand Registration" shall have the meaning given in Section 2(a).
"Equity Interests" shall mean any rights in or securities, obligations
or interests of the Company held by Holder as a result of the Transactions,
including, but not limited to, the Bridge Loan, the Option and the Preferred
Shares, that are convertible or exchangeable for Common Shares of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Holder" shall mean AJG Financial Services, Inc., a Delaware
corporation, or if Holder shall have transferred its rights hereunder to any
unaffiliated third party, "Holder" shall mean the holders of at least 33 1/3% of
the Registrable Securities.
"Mandatory Registration" shall have the meaning given in Section 4(a).
"Person" shall mean an individual, partnership, corporation, trust,
unincorporated organization or other legal entity or a government or agency or
political subdivision thereof.
"Piggyback Notice" shall have the meaning given in Section 3(a).
"Piggyback Registration" shall have the meaning given in Section 3(a).
"Preferred Shares" shall mean the shares of Class A Cumulative
Convertible Pay-In-Kind Preferred Stock, par value $.01 per share, of the
Company, to be issued as contemplated by the Investment Agreement, upon the
authorization of such shares by the shareholders of the Company.
"Prospectus" shall mean the prospectus included in any Registration
Statement, including any preliminary prospectus, and any amendment or supplement
thereto and all material incorporated by reference therein.
"Option" shall mean that option to acquire additional Common Shares
that may be granted to Holder as part of the Transactions and as contemplated by
the Investment Agreement.
"Registrable Securities" shall mean the Shares and any Shares or other
securities issued or issuable with respect to the Shares upon any stock split,
stock dividend, recapitalization or similar event, excluding Shares (i) sold or
transferred pursuant to an effective registration statement, (ii) sold or
otherwise transferred pursuant to Rule 144 under the Securities Act, (iii) sold
or otherwise transferred pursuant to a transfer not requiring registration of
the Shares under the Securities Act, (iv) held by Holder who at such time is not
an Affiliate of the Company and that are eligible for sale pursuant to Rule
144(k) under the Securities Act, and (v) held by Holder who at such time is an
Affiliate of the Company if all of such Shares are eligible for sale pursuant to
Rule 144 under the Securities Act and could be sold in one transaction in
accordance with the volume limitations contained in Rule 144(e)(1)(i) under the
Securities Act.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance with this Agreement, including, without limitation:
(i) all applicable registration and filing fees imposed by the SEC, the New York
Stock Exchange, the National Association of Securities Dealers, Inc. ("NASD"),
or any securities exchange on which the Registrable Securities are required to
be listed hereunder, as the case may be, (ii) all fees and expenses incurred in
connection with compliance with state securities or "blue sky" laws (including
reasonable fees and disbursements of counsel in connection with qualification of
any of the Registrable Securities under any state securities or blue sky laws
and the preparation of a blue sky memorandum) and compliance with the rules of
the NASD, (iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing the Registration
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Statement, any Prospectus, certificates and other documents relating to the
performance of and compliance with this Agreement, (iv) all fees and expenses
incurred in connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges pursuant to Section 5(k)
hereof, and (v) the fees and disbursements of counsel for the Company and of the
independent public accountants of the Company. Registration Expenses shall
specifically exclude underwriting discounts and commissions, the fees and
disbursements of counsel representing Holder or any underwriter or agent acting
on behalf of Holder, and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by Holder, all of which shall be borne by
Holder in all cases.
"Registration Notice" shall have the meaning given in Section 5(b).
"Registration Statement" shall mean a registration statement of the
Company (and any other entity required to be a registrant pursuant to the
requirements of the Securities Act) covering all or a part of the Registrable
Securities under the Securities Act for which the Company is eligible, including
all amendments (including post-effective amendments), exhibits and materials
incorporated by reference therein.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shares" shall mean any and all Common Shares held by Holder or issued
or issuable to Holder upon conversion of its Equity Interests.
"Shelf Registration Statement" shall mean a Registration Statement on
Form S-3 (or any successor form) filed pursuant to Rule 415 of Regulation C
promulgated under the Securities Act (or any successor rule).
2. Demand Registration.
(a) Request for Registration.
Subject to Section 4, Holder may make one written
request during each 12-month period for registration under the Securities Act
(each, a "Demand Registration") of all or part of such Holder's Registrable
Securities so long as such Registrable Securities constitute at least 50% of the
total number of Registrable Securities held by such Holder. The written request
shall specify the aggregate number of Registrable Securities to be registered
and the intended method of disposition. The Company may elect, at its option, to
file such Demand Registration as a shelf registration pursuant to Rule 415 of
Regulation C promulgated under the Securities Act (or any successor rule).
Thereafter, the Company may elect to include in such registration additional
Common Shares to be issued by the Company, to the extent that the inclusion of
such additional Common Shares does not adversely affect the completion of
Holder's intended distribution of its Common Shares, in its reasonable
discretion.
(b) Effective Registration and Expenses.
A registration shall not constitute a Demand
Registration under Section 2(a) hereof until it has become effective and has
been kept effective for up to ninety days or, if
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earlier, until the Holder has completed the distribution related thereto. In any
registration initiated as a Demand Registration, the Company shall pay the
Registration Expenses incurred in connection therewith.
(c) Underwritten Offering.
The Holder must, unless otherwise agreed by the
Company and the Holder, distribute the Registrable Securities covered by the
Holder's request by means of an underwriting. If applicable, the Holder (and the
Company pursuant to Section 5(a) hereof) shall enter into an agreement in
customary form with an underwriter or underwriters selected for such
underwriting by the Company; provided, however, that the underwriter(s) must be
reasonably acceptable to Holder. If the managing underwriter or underwriters of
such offering advise the Company in writing that in its or their opinion the
number of Registrable Securities proposed to be sold in such offering exceeds
the number of Registrable Securities that can be sold in such offering without
adversely affecting the market for the Common Shares, the Company will include
in such registration, prior to inclusion of any securities which are not
Registrable Securities or shares of other capital stock of the Company upon
which registration rights have been granted by the Company ("Other Securities"),
the number of Registrable Securities and Other Securities that in the opinion of
such managing underwriters can be sold without adversely affecting the market
for the Common Shares. In such event, the number of Registrable Securities and
Other Securities, if any, to be offered for the accounts of each Holder
(including the Holder making the Demand Registration) and the holders of Other
Securities shall be reduced by reducing to the extent necessary, first, the
number of Other Securities requested by other holders, and second, the number of
Registrable Securities held by Holders other than the Holder making the Demand
Registration, to be included in such registration, and then, if and only if and
to the extent necessary, by reducing the number of Registrable Securities
requested by the Holder making the Demand Registration to be included in such
registration, to the extent necessary to reduce the total number of Registrable
Securities and Other Securities to be included in such offering to the number
recommended by such managing underwriter or underwriters; provided, however,
that if the reduced number of Registrable Securities that is included on behalf
of such Holder represents less than 50% of such Holder's total number of
Registrable Securities, such Holder shall not be excluded from such offering
pursuant to Section 2(a) hereof, and such Holder's participation in such
offering shall not constitute a request for registration pursuant to Section
2(a) hereof or the initiation of a registration pursuant to Section 2(d) hereof.
(d) Exceptions.
Notwithstanding the foregoing, (i) the Company shall
not be obligated to effect the filing of a registration statement pursuant to
this Section 2, (A) after the Company has initiated two such registrations
pursuant to this Section 2 (counting for these purposes only registrations which
have been declared or ordered effective and pursuant to which securities have
been sold and registrations which have been withdrawn by the Holder unless the
Holder bears all Registration Expenses related thereto), or (B) during the
period starting with the date that is 45 days prior to the Company's good faith
estimate, as certified in writing by the President of the Company to the Holder,
of the date of filing of, and ending on the date that is 180 days following the
effective date of, a registrations statement pertaining to an underwritten
primary public offering of securities on behalf of the Company; provided,
however, that the Company shall be entitled to defer a filing upon such notice
only once in any 365-day period, and provided
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further, that the Company shall not be entitled to defer such filing if the
Holder has requested to be included in such registration statement pursuant to
Section 3(a) hereof but such Holder has been denied participation, or such
Holder's participation has been reduced, pursuant to Section 3(c) hereof; or
(ii) if the Company shall furnish to the Holder 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 not be in the best interests of the
Company and its stockholders generally for such registration statement to be
filed, the Company shall have the right to defer such filing for a period of not
more than 60 days after receipt of the request of the Holder; provided, however,
that the Comply shall be entitled to defer a filing upon such notice only once
in any 365-day period.
3. Piggyback Registration.
(a) Right to Piggyback.
Subject to Section 4, any time after the date hereof,
if the Company proposes to register any of its securities under the Securities
Act (other than a registration pursuant to (i) a registration on Form S-4 or any
successor form or (ii) an offering of securities by the Company in connection
with an employee benefit, share dividend, share ownership or dividend
reinvestment plan) and the registration form to be used may be used for the
registration of Registrable Securities (a "Piggyback Registration"), the Company
will give prompt written notice (but in no event less than 30 days before the
anticipated filing date of a registration statement filed to register such
securities) to all Holders of its intention to effect such a registration (each,
a "Piggyback Notice") and, subject to subsection 3(c) below, the Company will
include in such registration, on such terms and conditions as the other
securities to be included therein, all Registrable Securities with respect to
which the Company has received written requests for inclusion therein, and other
requested information necessary for such registration, within 15 days after the
date of sending of the Piggyback Notice that included a request for other
information necessary for such registration.
(b) Piggyback Expenses.
The Holder shall not be liable for the Registration
Expenses in connection with the registration pursuant to Section 3(a).
(c) Priority on Piggyback Registrations.
If a Piggyback Registration is an underwritten
registration, and the managing underwriters advise the Company in writing that
in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the market or the price for the Common Shares to be
registered by the Company, the Company will include in such registration the
number of securities that in the opinion of such managing underwriters can be
sold without adversely affecting the market or the price for such Common Shares.
In such event, the Registration Statement will include the Other Securities
requested to be included therein by the holders requesting such registration,
the Registrable Securities requested to be included in such registration, and
the securities proposed to be sold by the Company, pro rata among each holder of
securities requesting such registration and the Company on the basis of the
number of shares requested for inclusion in such registration by each such
holder and the Company.
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(d) Selection of Underwriters.
In the case of an underwritten Piggyback
Registration, the Company will have the right to select the investment banker(s)
and manager(s) to administer the offering, if any.
4. Mandatory Registration.
(a) Inclusion of Unregistered Registrable Securities.
If the Company becomes eligible to use a Registration
Statement on Form S-3 (or any successor form thereto) to register its securities
and/or those of a selling stockholder, then the Company shall prepare and file
as commercially reasonably thereafter as possible, a Shelf Registration
Statement on Form S-3 which shall cover the resale of all Registrable Securities
that remain held by Holder (the "Mandatory Registration"). The Company may elect
to include in such registration additional Common Shares to be issued by the
Company or Other Securities of any prior investors or future investors in the
Company. The Holder's rights to request registration under Sections 2 and 3 of
this Agreement shall terminate upon the date that a Shelf Registration Statement
under this Section 4(a) becomes effective, unless and until such Shelf
Registration Statement is no longer effective. Notwithstanding the foregoing,
the Company shall not be obligated to effect any such Mandatory Registration (i)
in the circumstances described in clause (i)(B) of Section 2(d) or (ii) if the
Company shall furnish the certification described in Section 2(d)(ii) (but in
each of (i) and (ii) above, subject to the limitations set forth therein).
(b) Mandatory Registration Expenses.
In any Mandatory Registration, the Company shall pay
the Registration Expenses incurred in connection therewith, whether or not such
Mandatory Registration becomes effective.
(c) Underwritten Offering.
If any of the Registrable Securities covered by a
Mandatory Registration are to be sold in an underwritten offering, the
provisions of Section 2(c) hereof shall apply to such Mandatory Registration.
(d) Duration of Shelf Registration.
The Company agrees to use its best efforts to keep
the Shelf Registration Statement with respect to a Mandatory Registration
continuously effective for a period expiring on the earlier of (i) the date on
which all of the Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant thereto and (ii) the date on which (A) all
Shares that each Holder has the right to obtain in exchange for Equity
Interests, held by a Holder who is not an affiliate of the Company, in the
opinion of counsel for the Holder, are eligible for sale pursuant to Rule 144(k)
under the Securities Act and (B) all Shares that each Holder has the right to
obtain in exchange for Equity Interests, held by each Holder who is an affiliate
of the Company, in the opinion of counsel for the Holder, are eligible for sale
pursuant to Rule 144 under the Securities Act and could be sold in one
transaction in accordance with the volume limitations contained in Rule
144(e)(1)(i) under the Securities Act. Subject to Sections 5(b) and
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5(i), the Company further agrees to amend the Shelf Registration Statement if
and as required by the rules, regulations, interpretations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement or by the Securities Act or any rules and regulations
thereunder.
5. Registration Procedures.
In connection with the obligations of the Company
with respect to the registration of the Registrable Securities contemplated
herein, the Company shall:
(a) prepare and file with the SEC a Registration
Statement (x) as soon as reasonably practicable after receipt of a written
request pursuant to Sections 2 or 3 or (y) within the time period prescribed by
Section 4(a), which Registration Statement, in each case, shall (i) be available
for the sale of the Registrable Securities in accordance with the intended
method or methods of distribution by the selling Holders thereof and (ii) comply
as to form in all material respects with the requirements of the applicable form
and include all financial statements required by the SEC to be filed therewith,
and will use its best efforts to cause such Registration Statement to be
declared effective by the SEC as soon thereafter as is commercially practicable;
(b) subject to the last three sentences of this
Section 5(b) and Section 5(i) hereof, (i) prepare and file with the SEC such
amendments and supplements (including required periodic reporting filings under
the Exchange Act) to such Registration Statement and Prospectus included therein
as may be necessary to keep such Registration Statement effective for the
applicable period; (ii) cause the Prospectus to be amended or supplemented as
required and to be filed as required by Rule 424 or any similar rule that may be
adopted under the Securities Act; (iii) respond as promptly as practicable to
any comments received from the SEC with respect to the Registration Statement or
any amendment thereto; and (iv) comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method or
methods of distribution by the selling Holders thereof. Notwithstanding anything
to the contrary contained herein, the Company shall not be required to take any
of the actions described in clauses (i), (ii) or (iii) in this Section 5(b),
Section 5(d) or Section 5(i) with respect to each Holder of Registrable
Securities (x) to the extent that the Company is in possession of material
non-public information that it deems advisable not to disclose or is engaged in
active negotiations or planning for a material merger, acquisition or
disposition transaction and it delivers written notice to each such Holder of
Registrable Securities to the effect that such selling Holder may not make
offers or sales under the Registration Statement for a period not to exceed 60
days from the date of such notice; provided, however, that the Company may
deliver only two such notices within any 12-month period, (y) to the extent that
such registration would require initial or continuing disclosure of events or
proceedings yet unreported that, in the opinion of the Board of Directors of the
Company, would not be in the best interests of the Company and its stockholders
and such disclosure is not otherwise required under applicable law (including
applicable securities laws), and the Company delivers written notice to each
such Holder of Registrable Securities to the effect that such selling Holder may
not make offers or sales for a period not to exceed 60 days from the date of
such notice; provided, however, that the Company may deliver only one such
notice within any 365-day period, or (z) upon written notice by the Company to
each Holder of the need to take any action described in clauses (i), (ii) or
(iii) in this Section 5(b), unless and until the Company has received a written
notice (a "Registration
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Notice") from a Holder that such Holder intends to make offers or sales under
such Registration Statement as specified in such Registration Notice, except in
the case of a Shelf Registration Statement, in which case such Registration
Notice shall not be required; provided, however, that the Company shall have ten
(10) business days to prepare and file any such amendment or supplement after
receipt of the Registration Notice or such longer period as is reasonably
necessary if such preparation and filing are not commercially practicable within
ten (10) business days. Once a Holder has delivered a Registration Notice to the
Company, such Holder shall promptly provide to the Company such information as
the Company reasonably requests in order to identify such Holder and the method
of distribution in a post-effective amendment to the Registration Statement or a
supplement to the Prospectus. Such Holder also shall notify the Company in
writing upon completion of such offer or sale or at such time as such Holder no
longer intends to make offers or sales under the Registration Statement;
(c) furnish to each Holder of Registrable
Securities, without charge, as many copies of each Prospectus and any amendment
or supplement thereto as such Holder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Securities;
the Company consents to the use of the Prospectus and any amendment or
supplement thereto by each such Holder of Registrable Securities in connection
with the offering and sale of the Registrable Securities covered by the
Prospectus or amendment or supplement thereto;
(d) use its best efforts to register or qualify
the Registrable Securities by the time the Registration Statement is declared
effective by the SEC under all applicable state securities or blue sky laws of
such jurisdictions in the United States and its territories and possessions as
any Holder of Registrable Securities covered by the Registration Statement shall
reasonably request in writing and keep each such registration or qualification
effective during the period such Registration Statement is required to be kept
effective or during the period offers or sales are being made by a Holder that
has delivered a Registration Notice to the Company, whichever is shorter;
provided, however, that in connection therewith, the Company shall not be
required to (i) qualify as a foreign corporation to do business or to register
as a broker or dealer in any such jurisdiction where it would not otherwise be
required to qualify or register but for this Section 5(d), (ii) subject itself
to taxation in any such jurisdiction, or (iii) file a general consent to service
of process in any such jurisdiction;
(e) notify each selling Holder of Registrable
Securities promptly and, if requested by such Holder, confirm in writing, (i)
when the Registration Statement and any post-effective amendments thereto have
become effective, (ii) when any amendment or supplement to the Prospectus has
been filed with the SEC, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of the
Registration Statement or any part thereof or the initiation of any proceedings
for that purpose, (iv) if the Company receives any notification with respect to
the suspension of the qualification of the Registrable Securities for offer or
sale in any jurisdiction or the initiation of any proceeding for such purpose,
and (v) of the happening of any event during the period the Registration
Statement is effective as a result of which (A) such Registration Statement
contains any untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading or (B) the Prospectus as then amended or supplemented contains
any untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that the Company
shall not be obligated to prepare and
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furnish any prospectus supplements or amendments relating to any material
nonpublic information at any such time as the Board of Directors of the Company
has determined that, for good business reasons, the disclosure of such material
nonpublic information at that time would be materially detrimental to the
Company in the circumstances and is not otherwise required under applicable law
(including applicable securities laws); provided, further, that the Company may
only delay its obligations pursuant to the aforementioned proviso for a period
of 60 days in any 180-day period;
(f) use its best efforts to obtain the withdrawal
of any order suspending the effectiveness of the Registration Statement or any
part thereof as promptly as possible;
(g) upon request, furnish to each Holder of
Registrable Securities that has delivered a Registration Notice to the Company,
without charge, at least one conformed copy of the Registration Statement and
any post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) cooperate with the selling Holders of
Registrable Securities to facilitate the timely preparation and delivery of
unlegended certificates representing Registrable Securities to be sold; and
enable unlegended certificates for such Registrable Securities to be issued for
such numbers of shares and registered in such names as the selling Holders may
reasonably request at least two business days prior to any sale of Registrable
Securities;
(i) subject to the last three sentences of Section
5(b) hereof, upon the occurrence of any event contemplated by clause (x) or (y)
of Section 5(b) or clause (v) of and the proviso to Section 5(e) hereof, use its
best efforts promptly to prepare and file an amendment or a supplement to the
Prospectus or any document incorporated therein by reference or prepare, file
and obtain effectiveness of a post-effective amendment to the Registration
Statement, or file any other required document, in any such case to the extent
necessary so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus as then amended or supplemented will not contain any
untrue statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they are made, not misleading;
(j) within a reasonable time prior to the filing
of any Registration Statement or any amendment thereto, or any Prospectus or any
amendment or supplement thereto, provide copies of such document (not including
any documents incorporated by reference therein unless requested) to the Holders
of Registrable Securities that have provided a Registration Notice to the
Company;
(k) use its best efforts to maintain the listing
of the Common Shares on the securities exchange on which the Common Shares are
now listed or on another national securities exchange or national market system,
as those terms are used under the Exchange Act;
(l) use its best efforts to cause all Registrable
Securities to be listed on any securities exchange on which similar securities
issued by the Company are then listed; and
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(m) provide a transfer agent and registrar for all
Registrable Securities registered hereunder and a CUSIP number for all
Registrable Securities, not later than the effective date of the Registration
Statement;
(n) in the event of any underwritten public
offering, enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter(s) of such
offering (each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement); and
(o) use its best efforts to furnish, on the date
that such Registrable Securities are delivered to the underwriters for sale, if
such securities are being sold through underwriters, (i) an opinion, dated as of
such date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and (ii)
a letter dated as of such date, from the independent certified public
accountants of the Company, in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering addressed to the underwriters.
The Company may require each Holder of Registrable Securities to
furnish to the Company in writing such information regarding the proposed
distribution by such Holder of such Registrable Securities as the Company may
from time to time reasonably request in writing.
In connection with and as a condition to the Company's obligations with
respect to any Registration Statement pursuant to Sections 2, 3, and 4 of this
Agreement and this Section 5, each Holder covenants and agrees that (i) it will
not offer or sell any Registrable Securities under the Registration Statement
until it has provided a Registration Notice if required pursuant to Section 5(b)
and has received copies of the Prospectus as then amended or supplemented as
contemplated by Section 5(c) and notice from the Company that the Registration
Statement and any post-effective amendments thereto have become effective as
contemplated by Section 5(e); (ii) upon receipt of any notice from the Company
contemplated by Section 5(b) (in respect of the occurrence of an event
contemplated by clause (x) or (y) of Section 5(b)) or Section 5(e) (in respect
of the occurrence of an event contemplated by clause (v) of Section 5(e)), such
Holder shall not offer or sell any Registrable Securities pursuant to the
Registration Statement until, in the sole discretion of the Company, the event
no longer precludes sale or such Holder receives copies of the supplemented or
amended Prospectus contemplated by Section 5(i) hereof and receives notice that
any post-effective amendment has become effective, and, if so directed by the
Company, such Holder will deliver to the Company (at the expense of the Company)
all copies in its possession, other than permanent file copies then in such
Holder's possession, of the Prospectus as amended or supplemented at the time of
receipt of such notice; (iii) such Holder and any of its officers, directors or
affiliates, if any, must comply with the provisions of Regulation M under the
Exchange Act, or any successor regulations, as applicable to them in connection
with sales of Registrable Securities pursuant to the Registration Statement; and
(v) such Holder and any of its officers, directors or affiliates, if any, must
enter into such written agreements as the Company shall reasonably request to
ensure compliance with clause (iii) above.
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6. Indemnification; Contribution.
(a) Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Holder and its officers and directors and each
Person, if any, who controls any Holder within the meaning of Section 15 of the
Securities Act as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to which such Holder, officer,
director or controlling Person may become subject under the Securities Act or
otherwise (A) that arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or any amendment thereto, or the 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 (B) that arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Prospectus or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or incurred in connection with any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
alleged untrue statement or any omission or alleged omission contained in any
Registration Statement, if such settlement is effected with the written consent
of the Company; and
(iii) subject to the limitations set forth in
Section 6(c), against any and all expense whatsoever, as incurred (including
reasonable fees and disbursements of counsel), reasonably incurred in
investigating, preparing or defending against any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened, in
each case whether or not a party, or any claim whatsoever based upon any such
untrue statement or alleged untrue statement or omission or alleged omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
(iv) any violation by the Company of any rule or
regulation promulgated under the Securities Act applicable to the Company in
connection with any registration, qualification, or compliance of the
Registrable Securities or any other capital stock of the Company;
provided, however, that the indemnity provided pursuant to this Section 6(a)
shall not apply (i) to any amounts paid in settlement of any such loss,
liability, claim, damage or expense if such settlement is effected without the
consent of the Company (which consent shall not be unreasonably delayed or
withheld), or (ii) to any Holder with respect to any of the foregoing in this
Section 6(a) that arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by such Holder
expressly for use in any Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto, or the Holder's or an
underwriter's failure to deliver a copy of any Registration
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Statement or Prospectus or any amendments or supplements thereto after the
Company has furnished the Holder or underwriter with a sufficient number of
copies of the same.
(b) Indemnification by Holders. Each Holder severally
agrees to indemnify and hold harmless the Company and the other selling Holders,
and each of their respective directors and officers (including each director and
officer of the Company who signed the Registration Statement), and each Person,
if any, who controls the Company or any other selling Holder within the meaning
of Section 15 of the Securities Act, to the same extent as the indemnity
contained in Section 6(a) hereof, but only insofar as such loss, liability,
claim, damage or expense arises out of or is based upon (i) any untrue statement
or alleged untrue statement or omission or alleged omission made in any
Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by such selling Holder for use therein
relating to the Holder's status as a selling security holder or (ii) the breach
of any covenant contained in Section 5; provided, however, that in no event
shall any indemnity provided under this Section 6(b) by a Holder (i) exceed the
net proceeds from the offering received by such Holder, or (ii) apply to amounts
paid in settlement of any such loss, liability, claim, damage or expense if such
settlement is effected without the consent of the Holder (which consent shall
not be unreasonably delayed or withheld).
(c) Conduct of Indemnification Proceedings. Each
indemnified party shall give reasonably prompt notice to each indemnifying party
of any action or proceeding commenced against the indemnified party in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party (i) shall not relieve it from any liability which it may have
under the indemnity agreement provided in Section 6(a) or (b) above, unless and
to the extent it did not otherwise learn of such action and the lack of notice
by the indemnified party materially prejudices the indemnifying party or results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) shall not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided under Section 6(a) or (b) above. After receipt of such notice, the
indemnifying party shall be entitled to participate in and, at its option,
jointly with any other indemnifying party so notified, to assume the defense of
such action or proceeding at such indemnifying party's own expense with counsel
chosen by such indemnifying party and approved by the indemnified party, which
approval shall not be unreasonably withheld; provided, however, that, if the
defendants in any such action or proceeding include both the indemnified party
and the indemnifying party and the indemnified party reasonably determines, upon
advice of counsel, that a conflict of interest exists or that there may be legal
defenses available to it or other indemnified parties that are different from or
in addition to those available to the indemnifying party, then the indemnified
party shall be entitled to one separate counsel, the reasonable fees and
expenses of which shall be paid by the indemnifying party. If the indemnifying
party does not assume the defense of any such action or proceeding, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party will pay the reasonable fees and expenses of counsel (which
shall be limited to a single law firm) for the indemnified party. In such event,
however, the indemnifying party will not be liable for any settlement effected
without the written consent of such indemnifying party. If the indemnifying
party assumes the defense of any such action or proceeding in accordance with
this paragraph, such indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified party incurred thereafter in connection
with such action or proceeding except as set forth in the proviso in the second
sentence of this Section 6(c).
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(d) Contribution. In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in this Section 6 is for any reason held to be unenforceable
although applicable in accordance with its terms, the Company and the selling
Holders shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
the Company and the selling Holders, in such proportion as is appropriate to
reflect the relative fault of and benefits to the Company on the one hand and
the selling Holders on the other (in such proportions that the selling Holders
are severally, not jointly, responsible for the balance), in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits to the indemnifying party and indemnified parties shall be
determined by reference to, among other things, the total proceeds received by
the indemnifying party and indemnified parties in connection with the offering
to which such losses, claims, damages, liabilities or expenses relate. The
relative fault of the indemnifying party and indemnified parties shall be
determined by reference to, among other things, whether the 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 the indemnified parties, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such action.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph;
provided, however, that in no event shall any contribution by Holder hereunder
exceed the net proceeds from the offering received by such Holder.
Notwithstanding the provisions of this Section 6(d), no selling Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such selling Holder were offered to
the public exceeds the amount of any damages which such selling Holder would
otherwise have been required to pay by reason of such untrue statement or
omission.
Notwithstanding the foregoing, 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. For purposes of this Section 6(d), each Person, if
any, who controls a Holder within the meaning of Section 15 of the Securities
Act and directors and officers of a Holder shall have the same rights to
contribution as such Holder, and each director of the Company, each officer of
the Company who signed the Registration Statement and each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act
shall have the same rights to contribution as the Company.
(e) The obligations of the Company and Holders under this
Section 6 shall survive completion of any offering of Registrable Securities in
a registration statement and the termination of this agreement. No indemnifying
party, in the defense of any such claim or litigation, shall, except with the
consent of each indemnified party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect to such claim or litigation.
13
7. Rule 144 Reporting. With a view to making available to each
Holder the benefits of certain rules and regulations of the SEC which may permit
the sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) make and keep public information available, as those
terms are understood and defined in SEC Rule 144 or any similar or analogous
rule promulgated under the Securities Act, at all times after the effective date
of the first registration filed by the Company for an offering of its securities
to the general public;
(b) file with the SEC, in a timely manner, all reports
and other documents required of the Company under the Exchange Act; and
(c) so long as a Holder owns any Registrable Securities,
furnish to such Holder forthwith upon request: a written statement by the
Company as to its compliance with the reporting requirements of said Rule 144 of
the Securities Act, and of the Exchange Act (at any time after it has become
subject to such reporting requirements); a copy of the most recent annual and/or
quarterly report of the Company; and such other reports and documents as a
Holder may reasonably request in availing itself of any rule or regulation of
the SEC allowing it to sell any such securities without registration.
8. Restrictions on Transfer of Shares. Holder agrees not to make
any disposition of all or any portion of the Shares or Registrable Securities
unless and until:
(i) there is then in effect a registration
statement under the Securities Act covering such proposed disposition and such
disposition is made in accordance with such registration statement; or
(ii) (A) such Holder shall have notified the
Company of the proposed disposition and shall have furnished the Company with a
statement of the circumstances surrounding the proposed disposition, and (B) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, which counsel if other than ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇ or internal counsel of the Holder shall be reasonably
satisfactory to the Company and its counsel, that such disposition will not
require registration of such Shares under the Securities Act.
(iii) Notwithstanding the provisions of paragraphs
(i) and (ii) above, no such registration statement or opinion of counsel shall
be necessary for a transfer by a Holder which is (A) a partnership to its
partners or former partners in accordance with partnership interests, (B) a
limited liability company to its members or former members in accordance with
their interest in the limited liability company, or (C) to the Holder's family
member or trust for the benefit of an individual Holder or a family member;
provided that in each case the transferee will be subject to the terms of this
Agreement to the same extent as if he were an original Holder hereunder.
(b) Each certificate representing Shares or Registrable
Securities shall (unless otherwise permitted by the provisions of the Agreement)
be stamped or otherwise imprinted with a legend substantially similar to the
following (in addition to any legend required under applicable state securities
laws):
14
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY
STATE SECURITIES LAWS AND MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED OR
QUALIFIED UNDER SUCH LAWS (AS APPLICABLE) OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT
SUCH REGISTRATION OR QUALIFICATION IS NOT REQUIRED.
(c) The Company shall be obligated to reissue
promptly unlegended certificates at the request of any Holder thereof if the
Holder shall have obtained an opinion of counsel (which counsel may be counsel
to the Company) reasonably satisfactory to the Company if other than ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ or internal counsel of the Holder, to the effect that
the securities proposed to be disposed of may lawfully be so disposed of without
registration, qualification or legend.
(d) Any legend endorsed on an instrument pursuant to
applicable state securities laws and the stop-transfer instructions with respect
to such securities shall be removed upon receipt by the Company of an order of
the appropriate blue sky authority authorizing such removal.
(e) Subject to the foregoing restrictions, the Company
and the Holder hereby agree that any transferee and/or subsequent Holder of
Registrable Securities shall be entitled to all benefits and subject to all
obligations hereunder as a Holder of Registrable Securities.
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified, supplemented or waived, nor may consent to departures therefrom be
given, without the written consent of the Company and the Holders of a majority
of the outstanding Registrable Securities (treating for the purpose of such
computation the Holders of Equity Interests as the Holders of Registrable
Securities issuable upon exchange of such Equity Interests), provided, however,
that no amendment, modification, supplement or waiver of, or consent to the
departure from, the provisions of Sections 2, 3, 4, 6, 8, or 9 hereof shall be
effective as against any Holder of Registrable Securities unless consented to in
writing by such Holder of Registrable Securities. Notice of any such amendment,
modification, supplement, waiver or consent adopted in accordance with this
Section 9(a) shall be provided by the Company to each Holder of Registrable
Securities at least thirty (30) days prior to the effective date of such
amendment, modification, supplement, waiver or consent.
(b) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery, (i) if to a Holder, at such Holder's registered address
appearing on the register of the Company with a copy to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇ or (ii) if to the Company, at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇,
attention: President and Chief Executive
15
Officer, with a copy to ▇▇▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, 2700 International
Tower, Peachtree Center, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; upon receipt
of confirmation of delivery, if telexed or if telecopied; or at the time
delivered if delivered by a courier guaranteeing overnight delivery.
(c) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders. If any successor, assignee or transferee
of any Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by all of the terms and provisions hereof.
(d) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(f) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware without
giving effect to the conflicts of law provisions thereof.
(g) Specific Performance. The parties hereto acknowledge
that there would be no adequate remedy at law if any party fails to perform any
of its obligations hereunder, and accordingly agree that each party, in addition
to any other remedy to which it may be entitled at law or in equity, shall be
entitled to compel specific performance of the obligations of any other party
under this Agreement in accordance with the terms and conditions of this
Agreement in any court of the United States or any State thereof having
jurisdiction.
(h) Severability. In the event one or more of the
provisions of this Agreement should, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
(i) Entire Agreement. This 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
in respect of the subject matter contained herein. Except as this Agreement is
related to and referenced in the Investment Agreement, this Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
16
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by its duly authorized officer as of the date first written above.
COMPANY:
INTREPID CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
HOLDER:
AJG FINANCIAL SERVICES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
17