Registration Rights Agreement - Odyssey Marine Exploration Inc. and MacDougald Family LP
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
Amended And Restated Registration Rights Agreement (this
"Agreement") dated as of October 12, 2001, by and between Odyssey Marine
Exploration, Inc., a Nevada corporation (the "Company"), and Macdougald Family
Limited Partnership, a Nevada limited partnership (the "Purchaser").
RECITALS
WHEREAS, the Company, the Purchaser, John C. Morris, and Gregory P.
Stemm entered into a Series B Convertible Preferred Shares Purchase Agreement,
dated February 28, 2001 ("Stock Purchase Agreement"), pursuant to which the
Purchaser purchased (a) 864,008 shares of common stock, $0.0001 par value per
share of the Company ("Common Stock"), (b) 850,000 shares of the Series B
Preferred Stock, par value $0.0001 per share, of the Company ("Series B
Preferred Stock"), and (c) warrants (the "Warrants") to purchase an aggregate of
1,889,000 shares of Common Stock of the Company, (such Common Stock, Series B
Preferred Stock, and the Warrants, together, the "Securities");
WHEREAS, the Series B Preferred Stock is convertible into, and the
Warrants are exercisable for, shares of Common Stock under the terms and
conditions of the Series B Preferred Stock and the Warrants, respectively; and
WHEREAS, as an inducement to enter into the Stock Purchase Agreement,
and as a condition to the purchase of the Securities by the Purchasers in
connection therewith, the Company and the Purchaser entered into a Registration
Rights Agreement, dated February 28, 2001 (the "Registration Rights Agreement")
to provide certain registration rights to the Purchaser with respect to the
Securities.
WHEREAS, on the date hereof, the Company and the Purchaser are
concurrently entering into an agreement to amend the Stock Purchase Agreement
(the "First Amendment to Stock Purchase Agreement") pursuant to which the
Purchaser will eliminate certain of its rights under the Stock Purchase
Agreement;
WHEREAS, as an inducement to enter into the First Amendment Stock
Purchase Agreement, and as a condition to the execution thereof by the
Purchaser, the Company has agreed to amend and restate the Registration Rights
Agreement to provide certain additional demand registration rights to the
Purchaser with respect to the Securities as set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
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"Advice" shall have the meaning set forth in Section 5.2
hereof.
"affiliate" shall have the meaning set forth in Rule 405 promulgated
under the Securities Act.
"Agreement" shall have the meaning set forth in the first paragraph
of this Agreement.
"Board" shall have the meaning set forth in Section 3.2(f) hereof.
"Common Stock" shall have the meaning set forth in the Recitals of
this Agreement.
"Company" shall have the meaning set forth in the first paragraph of
this Agreement.
"Demand Period" shall have the meaning set forth in Section 3.1
hereof.
"Demand Registration" shall have the meaning set forth in Section
3.1 hereof.
"Demand Registration Request" shall have the meaning set forth in
Section 3.2(a) hereof.
"Demand Registration Statement" shall have the meaning set forth in
Section 3.2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar law then in force.
"First Amendment to Stock Purchase Agreement" shall have the meaning
set forth in the Recitals to this Agreement.
"Form S-3 Registration Statement" shall have the meaning set forth
in Section 3.2(b) hereof.
"Initiating Holder" or "Initiating Holders" shall have the meaning
set forth in Section 3.1 hereof.
"Interim Demand Period" shall have the meaning set forth in Section
3.2(b) hereof.
"NASD" shall mean the National Association of Securities
Dealers.
"Other Holders" shall have the meaning set forth in Section 4.4
hereof.
"Person" means an individual, a partnership, an association, a joint
venture, a corporation, a trust, an unincorporated organization and
a government or any department, agency or principal subdivision
thereof.
"Piggyback Notice" shall have the meaning set forth in Section 4.1
hereof.
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"Piggyback Registration" shall have the meaning set forth in Section
4.1 hereof.
"Piggyback Registration Statement" shall have the meaning set forth
in Section 4.1 hereof.
"Prospectus" is the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement and
by all other amendments and supplements to the prospectus,
including post-effective amendments and material incorporated by
reference in such prospectus.
"Purchasers" shall have the meaning set forth in the first paragraph
of this Agreement.
"Registration Rights Agreement" shall have the meaning set forth in
the Recitals of this Agreement.
"Registrable Securities" means, (i) shares of Common Stock issuable
upon conversion of the Series B Preferred Stock issued pursuant to
the Company's Articles of Incorporation, as amended, in accordance
with their terms, (ii) shares of Common Stock issuable upon exercise
of the Warrants, (iii) shares of Common Stock sold to the Purchaser
pursuant to the Stock Purchase Agreement, (iv) any Common Stock
issued or issuable with respect to the Securities by way of
replacement, stock dividend, stock-split, or in connection with or
combination of shares, recapitalization, or otherwise, and (v)
shares of Common Stock acquired (including, without limitation,
upon conversion of convertible securities, exercise of warrants,
options or similar securities, or otherwise) by the Purchaser after
the date hereof. As to any particular Registrable Securities, such
securities shall cease to be Registrable Securities when (a) a
Registration Statement with respect to the sale or transfer of such
securities has been declared effective under the Securities Act, (b)
such securities shall have been sold pursuant to Rule 144 (or any
successor provision) under the Securities Act, or (c) they shall
have ceased to be outstanding.
"Registration Statement" means any registration statement of the
Company which covers any of its securities, including a prospectus,
amendments and supplements to such Registration Statement, including
post-effective amendments, all exhibits and all materials
incorporated by reference in such Registration Statement.
"Registration Expenses" shall have the meaning set forth in Section
6.1 hereof.
"SEC" means the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the Recitals to this
Agreement
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Series B Preferred Stock" shall have the meaning set forth in the
Recitals to this Agreement.
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"Stock Purchase Agreement" shall have the meaning set forth in the
Recitals of this Agreement.
"Supplemental Demand Request" shall have the meaning set forth in
Section 3.2(d) hereof.
"Warrants" shall have the meaning set forth in the Recitals to this
Agreement
2. Registrable Securities; Cancellation of Prior Agreements.
2.1 Registrable Securities. The securities entitled to the
benefits of this Agreement are the Registrable Securities.
2.2 Rights of Subsequent Holders. Subject to the restrictions
on transferability as set forth on the legends affixed to certificates
representing the Registrable Securities, any subsequent holder of Registrable
Securities shall be entitled to all the benefits hereunder as a holder of such
Registrable Securities.
2.3 Cancellation of Prior Agreements. All prior agreements,
including the Registration Rights Agreement, between the Company and the
Purchaser relating to registration under the Securities Act of any shares of the
Registrable Securities are hereby terminated and superseded. The parties hereto
agree that, with respect to the subject matter hereof, they shall, from and
after the date hereof, exclusively rely on, and be bound by, this Agreement.
3. Demands for Registration.
3.1 Demand Registration. Commencing on the date of this
Agreement and ending with the termination of this Agreement pursuant to Section
9.3 hereof ("Demand Period"), subject to the terms and conditions of this
Agreement, one or more holders of the Registrable Securities may make a written
request to the Company for registration under the Securities Act of all or part
of their Registrable Securities ("Demand Registration"). Such holders of
Registrable Securities making such a demand are sometimes referred to herein as
"Initiating Holders" or individually an "Initiating Holder". A registration
shall not be deemed to be a Demand Registration (i) unless a Registration
Statement with respect thereto has become effective, (ii) if after it has become
effective, such registration is interfered with by any stop order, injunction or
other order or requirement of the Commission or other governmental agency or
court for any reason not attributable to the holders of Registrable Securities
participating in such registration and has not thereafter become effective, or
(iii) if the conditions to closing specified in the underwriting agreement, if
any, entered into in connection with such registration are not satisfied or
waived, other than by reason of a failure on the part of the Registrable
Securities participating in such registration.
3.2 Demand Procedure.
(a) Subject to Section 3.2(b) hereof, during the Demand
Period the Initiating Holders may deliver to the Company a written request (a
"Demand Registration Request") that the Company register any or all of the
Registrable Securities of such Initiating Holder(s).
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(b) Holders of Registrable Securities will be entitled:
(i) up to five (5) Demand Registrations, pursuant to which the Company will be
required to file a Registration Statement with the SEC on any form other than a
Form S-3 ("Form S-3 Registration Statement"), and (ii) an unlimited number of
Form S-3 Registration Statements. Holders of Registrable Securities may make
only one Demand Registration Request in any twelve-month period during the
Demand Period (the "Interim Demand Period"). The Company shall only be required
to file one Registration Statement (as distinguished from supplements or pre-
effective or post-effective amendments thereto) in response to each Demand
Registration Request. Notwithstanding anything to the contrary in this Section
3, the Company shall not be required to take any action to effect any such
registration, qualification, or compliance pursuant to this Section 3 if in the
case of a Form S-3 Registration Statement, the holders of the Registrable
Securities propose to offer or sell Registrable Securities having an aggregate
offering price to the public of less than $500,000.
(c) A Demand Registration Request shall (i) set forth
the number of Registrable Securities intended to be sold pursuant to the Demand
Registration Request, (ii) identify the Initiating Holders making the Demand
Registration Request and the nature and amount of their holdings, (iii) specify
the method of distribution, disclosing whether all or any portion of a
distribution pursuant to such registration will be sought by means of an
underwriting, and (iv) identify any underwriter or underwriters proposed for the
underwritten portion, if any, of such registration.
(d) Upon the receipt by the Company of a Demand
Registration Request in accordance with Section 3.2(c) hereof, the Company shall
promptly give written notice of such request to all registered holders of
Registrable Securities. The Company shall include in such notice information
concerning whether all, part or none of the distribution is expected to be made
by means of an underwriting, and, if more than one means of distribution is
contemplated, may require holders of Registrable Securities to notify the
Company of the means of distribution of their Registrable Securities to be
included in the registration. If any holder of Registrable Securities who is not
an Initiating Holder desires to sell any Registrable Securities owned by such
holder, such holder may elect to have all or any portion of its Registrable
Securities included in the Registration Statement by notifying the Company in
writing (a "Supplemental Demand Registration Request") within ten (10) days of
receiving notice of the Demand Registration Request from the Company. The right
of any holder to include all or any portion of its Registrable Securities in a
Demand Registration Statement shall be conditioned upon the Company's having
received a timely written request for such inclusion by way of a Demand
Registration Request or Supplemental Demand Registration Request (which right
shall be further conditioned to the extent provided in this Agreement). All
holders proposing to distribute their Registrable Securities through an
underwriting shall enter into an underwriting agreement in customary form with
the underwriter or underwriters selected for such underwriting.
(e) If during any Interim Demand Period, the Company
receives a Demand Registration Request from an Initiating Holder satisfying the
requirements of Section 3.1 and 3.2(b) of this Agreement, the Company, subject
to the limitations of Section 3.2(f) and Section 5 hereof, shall prepare and
file a Registration Statement with the SEC on the appropriate form to register
for sale all of the Registrable Securities that holders of the Registrable
Securities requested to be registered pursuant to the Demand Registration
Request or in any Supplemental Demand Registration Request timely received by
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the Company in accordance with Section 3(d) of this Agreement (a "Demand
Registration Statement"). The Company shall use its commercially reasonable
efforts (i) to cause such Registration Statement to become effective as soon as
practicable and (ii) thereafter to keep it continuously effective and to prevent
the happening of an event of the kind described in Section 5.1(c)(vi) hereof
that requires the Company to give notice pursuant to Section 5.2 hereof, until
the earlier of such time as all of the Registrable Securities included in the
Registration Statement have been sold (or otherwise disposed of by the holder
thereof) or one hundred eighty (180) days from the date of effectiveness of such
Registration Statement.
(f) It is anticipated that the Registration Statement
filed with the SEC may allow for different means of distribution, including
sales by means of an underwriting as well as sales into the open market. A
determination of whether all or part of the distribution will be by means of an
underwriting shall be made by the Initiating Holders. If the Initiating Holders
desire to distribute all or part of the Registrable Securities covered by its
request by means of an underwriting, they shall so advise the Company in writing
in their initial Demand Registration Request as described in Section 3.2(c)
hereof. Selection of the lead managing underwriter in any underwriting made in
connection with a Demand Registration Request shall be subject to approval by
the Company's Board of Directors (the "Board"), which approval shall not be
unreasonably withheld.
(g) In any registered offering pursuant to this Section
3 that becomes effective under the Securities Act in which a holder of
Registrable Securities participates, the Company shall use its commercially
reasonable efforts to keep available to such holder a Prospectus meeting the
requirements of Section 10(a)(3) of the Securities Act and shall file all
amendments and supplements under the Securities Act required for those purposes
during the period specified in Section 3.2(e). The Company agrees to supplement
or amend such Registration Statement, if required by the rules and regulations
or instructions applicable to the registration form utilized by the Company, or,
if applicable, the rules and regulations thereunder for shelf registrations
pursuant to Rule 415 promulgated under the Securities Act, or as reasonably
requested by holders of Registrable Securities covered by the Registration
Statement, or any underwriter of the Registrable Securities. In any offering
pursuant to this Section 3, the Company will promptly use its commercially
reasonable efforts to effect such qualification and compliance as may be
requested and as would permit or facilitate the distribution of the Registrable
Securities, including, without limitation, appropriate qualifications under
applicable blue sky or other state securities laws, appropriate compliance with
any other governmental requirements and listing on a national securities
exchange or inter-dealer quotation system on which the Registrable Securities
are then listed.
(h) Notwithstanding any other provision of this Section
3, if the managing underwriter advises the Company in writing that in its
opinion market factors require a limitation on the number of shares to be
underwritten, then the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated among the holders in proportion
(as nearly as practicable) to the respective amounts of Registrable Securities
each holder otherwise sought to have registered pursuant to its Demand
Registration Request or Supplemental Demand Registration Request (or in such
other proportion as they shall mutually agree). Registrable Securities excluded
or withdrawn from the underwriting pursuant to this Section 3.2(h) shall be
withdrawn from the registration.
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3.3 Priority on Demand Registration.
(a) The Company will not include in any Demand
Registration any securities which are not Registrable Securities without the
prior written consent of the holders of a majority of the shares of Registrable
Securities included in such registration, which consent will not be unreasonably
withheld. If the holders of a majority of the shares of Registrable Securities
included in such registration so request or otherwise agree, the Company may, in
its reasonable discretion, include in any Demand Registration securities owned
by the holders of Registrable Securities which are not Registrable Securities.
If the Company permits the inclusion of such securities, holders owning such
securities, in addition to the costs set forth in Section 6.2, shall pay all
incremental costs associated with the inclusion of such securities in the
Registration Statement, including but not limited to, all increments in
registration, filing fees, and NASD fees.
(b) If a Demand Registration involves an underwritten
offering and the managing underwriter or underwriters shall advise the Company
in writing that, in their opinion, the total number of Registrable Securities
and, as permitted hereunder, other securities requested to be included in such
offering exceeds the number which can be sold in such offering without an
adverse effect on the success of such offering, then the Company will include in
such Demand Registration, to the extent of the number which the Company is so
advised can be sold in such offering without having such an adverse effect: (i)
first, prior to the inclusion of any securities which are not Registrable
Securities, the number of Registrable Securities requested to be included
(subject to the provisions of Section 3.2(h) hereof if all such Registrable
Securities can not be included in such underwritten offering), and (ii) second,
all other securities which are permitted to be included in such Registration
Statement pursuant to Section 3.3(a) of this Agreement, allocated on a pro rata
basis among the holders thereof based upon the total number of shares of such
other securities proposed to be included in the registration. Notwithstanding
any of the foregoing, securities which are not Registrable Securities shall only
be included in such Demand Registration Statement to the extent that, in the
opinion of the underwriters, such securities can be sold without having an
adverse effect on the Company. Registrable Securities excluded or withdrawn from
the underwriting in accordance with this Section 3.3(b) shall be withdrawn from
the registration. If any such limitation results in Registrable Securities being
excluded or withdrawn from the last Demand Registration that the Company is
required to provide pursuant to Section 3.2(b) hereof, then the Company shall,
at its option either (i) grant the holders of such Registrable Securities
excluded or withdrawn from such registration, one additional Demand Registration
hereunder with respect to such Registrable Securities not included in the
offering, on the same terms and conditions as would have applied to such holders
had such earlier Demand Registration not been made (except that the minimum
threshold requirements referred to in Sections 3.1 and 3.2(b) hereof shall not
apply) or (ii) within twenty (20) business days of the date that a demand is
made for such additional Demand Registration, purchase such excluded or
withdrawn Registrable Securities at the average per share closing price for such
securities, as reported on the principal domestic securities exchange or inter-
dealer quotation system on which such securities are then listed, for the last
five trading days preceding the date of demand, but only if such securities are
quoted by a principal domestic securities exchange or an inter-dealer quotation
system maintained by the National Association of Securities Dealers.
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4. Piggyback Registrations.
4.1 Right to Piggyback. If the Company proposes to file a
Registration Statement in connection with a public offering of any of its
securities (other than in connection with a Demand Registration and other than a
Registration Statement on Form S-4 or Form S-8, or any comparable successor form
or form substituting therefor, or filed in connection with any exchange offer or
an offering of securities solely to the Company's existing shareholders) (a
"Piggyback Registration Statement"), whether or not for sale for its own
account, then each such time the Company shall give written notice of a proposed
offering (a "Piggyback Notice") to the holders of Registrable Securities of its
intention to effect such a registration at least twenty (20) days prior to the
anticipated filing date of such Piggyback Registration Statement. The Piggyback
Notice shall offer the holders of Registrable Securities the opportunity to
include in such Piggyback Registration Statement such amount of Registrable
Securities as they may request ("Piggyback Registration"). The Company will,
subject to the limitations set forth in Sections 4.3 and 4.4 of this Agreement,
include in such Piggyback Registration Statement (and related qualifications
under blue sky laws) and the underwriting, if any, involved therein, all
Registrable Securities with respect to which the Company has received a written
request for inclusion therein within fifteen (15) days after receipt of the
Piggyback Notice (five (5) days if the Company gives telephonic notice to all
registered holders of the Registrable Securities, with written confirmation to
follow promptly thereafter). Notwithstanding the above, the Company may
determine, at any time, not to proceed with such Piggyback Registration
Statement. Such determination, however, will be without prejudice to the rights
of holders of Registrable Securities to demand the continuation of such
Registration Statement under Section 3 hereof.
4.2 Underwriting Agreement. To the extent that the holders of
Registrable Securities request Piggyback Registration of their Registrable
Securities, the holders of Registrable Securities shall (together with the
Company) enter into an underwriting agreement in customary form with the
managing underwriter, if any, selected by the Company for such underwriting.
4.3 Priority on Primary Registrations. If a Piggyback
Registration involves an underwritten offering and the managing underwriter or
underwriters of any such proposed public offering delivers a written opinion to
the Company and the holders of Registrable Securities requesting registration
under this Section 4 that the total number or kind of securities which such
holders and any other Persons entitled to be included in such public offering
would adversely affect its ability to effect such an offering, then the Company
may limit some or all the Registrable Securities and other securities that may
be included in such registration and underwriting to the extent of the number or
kind of securities which the Company is so advised can be sold in (or during the
time of) such offering without having such an adverse effect, such that: (a)
first, all securities proposed by the Company to be sold for its own account,
(b) second, the Registrable Securities requested to be included in the
registration pro rata among the holders of the Registrable Securities requesting
such registration, on the basis of the total number of shares of such securities
that each such holder of the Registrable Securities otherwise proposed to
include in the Piggyback Registration.
4.4 Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities other than holders of Registrable Securities (the
"Other Holders"), and the managing underwriter or underwriters advises the
Company in writing that in their opinion the number and kind of securities
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requested to be included in such registration exceeds the number that can be
sold in such offering, then the Company will include in such registration (a)
first, the Registrable Securities requested to be included in such registration
hereunder up to that number which, in the opinion of the managing underwriter or
underwriters, can be sold in such offering, and if all such Registrable
Securities can not be so included, then pro rata among the holders of
Registrable Securities requesting such registration on the basis of the number
of shares of Registrable Securities each holder otherwise sought to have
included in the Piggyback Registration, and (b) second, the securities requested
to be included therein by the Other Holders requesting such registration, up to
that number which, in the opinion of the managing underwriter or underwriters,
can be sold in the offering.
4.5 No Demand Registration. No registration of the Registrable
Securities under this Section 4 of the Agreement shall be deemed to be a Demand
Registration.
5. Registration Procedures.
5.1 Whenever the holders of Registrable Securities have requested
that any Registrable Securities be registered for sale pursuant to this
Agreement, whether pursuant to Section 3 or Section 4 hereof, the Company will
use its commercially reasonable efforts to effect the registration and the sale
of such Registrable Securities in accordance with the intended method of
disposition thereof, and pursuant thereto the Company will as expeditiously as
possible:
(a) Registration Statement. (i) Prepare and file with the
SEC, as soon as practicable, a Registration Statement or Registration Statements
relating to the applicable registration on any appropriate form (subject to the
requirements of Section 3.2(b) hereof) under the Securities Act, which form
shall be available for the sale of the Registrable Securities in accordance with
the intended method or methods of distribution thereof, and shall include all
financial statements required by the SEC to be filed therewith; (ii) cooperate
and assist in any filings required to be made with the NASD; and (iii) use its
commercially reasonable efforts to cause such Registration Statement to become
effective; provided, however, that before filing a Registration Statement or
Prospectus or any amendments or supplements thereto, the Company will furnish to
the holders whose Registrable Securities are covered by such Registration
Statement and the underwriters, if any, copies of all such documents proposed to
be filed, which documents will be subject to the reasonable review of such
holders and underwriters, and the Company will not file any Registration
Statement, or any amendment or supplement thereto (except a Piggyback
Registration or any amendment or supplement thereto) to which the holders of a
majority of the Registrable Securities covered by such Registration Statement,
or the underwriters, if any, shall reasonably object; provided, further,
however, that the Company may discontinue any registration of securities to be
offered by the Company at any time prior to the effective date of the
Registration Statement relating thereto.
(b) Amendments and Supplements. (i) Prepare and file with
the SEC such amendments, post-effective amendments, and supplements to the
Registration Statement as may be necessary to keep such Registration Statement
continuously effective for the applicable period, or such shorter period which
will terminate when all the Registrable Securities covered by such Registration
Statement have been sold; (ii) cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and (iii) comply with the provisions of the
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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 sellers thereof set forth in
such Registration Statement or supplement to the Prospectus.
(c) Notifications. Notify the holders of Registrable
Securities covered thereby and the managing underwriter or underwriters, if any,
promptly, and (if requested by any such Person) confirm such advice in writing:
(i) when the Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to the Registration Statement or any post-
effective amendment, when the same has become effective; (ii) of any request by
the SEC for amendments or supplements to the Registration Statement or the
Prospectus or for additional information; (iii) of the issuance by the SEC of
any stop order suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; (iv) if at any time the
representations and warranties of the Company contemplated by Section 5.1(n)
below cease to be true and correct; (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose; or (vi) of the happening of any
event which makes any statement made in the Registration Statement, the
Prospectus, or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement, the
Prospectus, or any document incorporated therein by reference in order to make
the statements therein not misleading in light of the circumstances under which
they were made.
(d) Stop-Orders and Suspensions. In the event of the
issuance of a stop-order or a suspension in the sale of the Registrable
Securities, make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement or otherwise
prohibiting the offer or sale of the Registrable Securities, including those
issued by state governmental authorities, at the earliest possible moment.
(e) Distribution Disclosures. If requested by the
managing underwriter or underwriters or a holder of Registrable Securities if
the Registrable Securities are being sold in connection with an underwritten
offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters and
holders of majority of the Registrable Securities being sold reasonably agree
should be included therein relating to the plan of distribution with respect to
such Registrable Securities, including, without limitation, information with
respect to the amount of Registrable Securities being sold to such underwriters,
the purchase price being paid therefor by such underwriters, and with respect to
any other terms of the underwritten (or best efforts underwritten) offering of
the Registrable Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon as
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment. The Company may require each of such holders to
furnish to the Company such information regarding the distribution of such
Registrable Securities as the Company may from time to time reasonably request
in writing.
(f) Copies of Registration Statement. Furnish to
each holder of Registrable Securities which are covered by a Registration
Statement pursuant to this Agreement and each managing underwriter, without
charge, at least one signed or conformed copy of the Registration Statement and
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any post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits
(including those incorporated by reference).
(g) Copies of the Prospectus. Deliver to each
holder of Registrable Securities which are covered by a Registration Statement
pursuant to this Agreement and the underwriters, if any, without charge, as many
copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons may reasonably request; and the
Company hereby consents to the use of the Prospectus or any amendment or
supplement thereto by the holders of Registrable Securities and the
underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto.
(h) Blue Sky Laws. Prior to any public offering of
the Registrable Securities, use its commercially reasonable efforts to register
or qualify or cooperate with holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification of, such Registrable Securities for offer and sale
under the securities or blue sky laws of such jurisdictions (where an exemption
is not available) as such holder or underwriter reasonably requests in writing
and do any and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the Registration Statement; provided, however, that the Company will
not be required to qualify generally to do business in any jurisdiction where it
is not then so qualified or to take any action which would subject it to general
service of process in any jurisdiction where it is not then so subject or
subject the Company to any income or sale tax in any such jurisdiction where it
is not then so subject.
(i) Removal of Legends. Cooperate with the holders
of Registrable Securities and the managing underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such to be in such denominations and registered in such names as the
managing underwriter or underwriters may request at least two business days
prior to any sale of Registrable Securities to the underwriters.
(j) Other Governmental Filings. Use its reasonable
best efforts to cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to enable the holders
thereof or the underwriters, if any, to consummate the disposition of such
Registrable Securities.
(k) Prospectus Amendments and Supplements. Upon
the occurrence of any event contemplated by Section 5.1(c)(vi) above, prepare
and promptly file a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading under the circumstances
in which they were made.
Page 11
(l) Securities Exchange Listings. Use its
reasonable best efforts to cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange or inter-dealer
quotation system on which similar securities issued by the Company are then
listed, if any.
(m) Delivery of Certificates. Not later than the
effective date of the applicable Registration Statement, use its reasonable best
efforts to provide a CUSIP number for the Registrable Securities and provide the
transfer agent with printed certificates for the Registrable Securities which
are in a form eligible for deposit with Depository Trust Company.
(n) Agreements and Further Actions. Enter into
such customary agreements (including an underwriting agreement) and take all
such other reasonable actions in connection therewith in order to facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration (i) make such representations and
warranties to the holders of Registrable Securities and the underwriters, if
any, in form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings and covering matters including,
without limitation, those set forth in an underwriting agreement; (ii) obtain
opinions of counsel to the Company and updates thereof (which opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriter or underwriters, if any, and not objected to by the holders of a
majority of the Registrable Securities being sold), addressed to each holder
selling Registrable Securities and the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by a majority of the holders
selling such Registrable Securities and the underwriters, if any; (iii) obtain
"cold comfort" letters and updates thereof from the Company's independent
certified public accountants addressed to the holders of Registrable Securities
and the underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters by accountants
in connection with primary underwritten offerings; (iv) if an underwriting
agreement is entered into, the same shall set forth in full the indemnification
provisions and procedures of Section 7 hereof with respect to all parties to be
indemnified pursuant to such section; and (v) the Company shall deliver such
documents and certificates as may be requested by the holders of a majority of
the Registrable Securities being sold and the managing underwriter or
underwriters, if any, to evidence compliance with Section 5.1(k) above and with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company. The above shall be done at each closing
under such underwriting or similar agreement or as and to the extent required
thereunder.
(o) Due Diligence Examination. Make available for
inspection by the holders of a majority of the Registrable Securities being sold
and any managing underwriter or underwriters participating in any disposition
pursuant to such Registration Statement and any attorney or accountant retained
by such underwriters, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such representative, underwriter, attorney or accountant in connection with such
Registration Statement.
Page 12
(p) Earning Statements. Otherwise use its
reasonable efforts to comply with all applicable rules and regulations of the
SEC, and make generally available to its security holders, earnings statements
satisfying the provision of Section 11(a) of the Securities Act no later than 45
days after the end of each 12-month period (or 90 days after the end of each 12-
month period, if such period is a fiscal year end) (i) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to underwriters in a
firm or best efforts underwritten offering; or (ii) if not sold to underwriters
in such an offering, beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement, which statements shall cover each of such 12-month periods.
(q) Incorporated Documents. Promptly prior to the
filing of any document which is to be incorporated by reference into the
Registration Statement or the Prospectus (after initial filing of the
Registration Statement), provide copies of such document to counsel to the
holders of Registrable Securities included in the Registration Statement and to
the managing underwriters, if any; and make the Company's representatives
available for discussion of such document, and make such changes in such
document (other than exhibits thereto) prior to the filing thereof as counsel
for such holders or underwriters may reasonably request.
5.2 Discontinuation of Distribution by Holders. Each holder of
Registrable Securities agrees, by acquisition of such Registrable Securities
that, upon receipt of any notice from the Company of the happening of any event
of the kind that would require a Prospectus amendment or supplement pursuant to
Section 5.1(k) hereof, such holders will forthwith discontinue disposition of
Registrable Securities until such holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5.1(k) hereof, or
until it is advised in writing (the "Advice") by the Company that the use of the
Prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the Prospectus, and,
if so directed by the Company, such holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the time periods regarding the maintenance of the
effectiveness of any Registration Statement in Section 3.2(e) hereof and the
term of this Agreement in Section 9.3 shall be extended by the number of days
during the period from and including the date of the giving of such notice
pursuant to Section 5.1(c)(vi) hereof to and including the date when such holder
shall have received the copies of the supplemented or amended prospectus
contemplated by Section 5.1(k) hereof or the Advice.
5.3 Hold-back Agreements and Other Limitations to Registration.
(a) Restrictions on Holders.
(i) Notwithstanding anything to the contrary
contained herein, the Company shall be entitled to postpone for a reasonable
period of time the filing of any Registration Statement under Sections 3 or 4
hereof if (A) any other Registration Statement for an offering of the Company's
securities has been filed with the SEC prior to, or is anticipated to be filed
within thirty (30) days from, the receipt of a Demand Registration Request, or
(B) with respect to an offering of the Registrable Securities, an audit (other
than the regular audit conducted by the Company at the end of its fiscal year)
would be required to be conducted pursuant to the Securities Act or the rules
and regulations promulgated thereunder, the form on which the Registration
Page 13
Statement is to be filed, or otherwise by the SEC, or by the managing
underwriter, if any, unless the holders of Registrable Securities seeking
inclusion in such offering agree to pay the cost of such audit, or (C) the Board
or a committee thereof determines, in its reasonable judgment, that such
registration would have a material adverse effect upon the Company or interfere
with any financing, merger, acquisition, sale, corporate reorganization, or
other material transaction involving the Company or any of its affiliates;
provided, however, that the Company shall promptly give the Initiating Holders
written notice of such determination containing a general statement of the
reasons for such postponement and an approximation of such delay.
(ii) With respect to an underwritten public
offering of shares of Common Stock pursuant to an effective Registration
Statement, each holder of Registrable Securities agrees, if requested by the
managing underwriter or underwriters in an underwritten offering, not to effect
any public sale or distribution of securities of the Company of the same class
as the securities included in such Registration Statement, including a sale
pursuant to Rule 144 under the Securities Act (except as part of such
underwritten registration), during the ten (10) day period prior to, and during
the forty-five (45) day period beginning, on the closing date of each
underwritten offering made pursuant to such Registration Statement, to the
extent timely notified thereof in writing by the Company or the managing
underwriter or underwriters; provided, however, that all officers and directors
of the Company and all other holders holding 2% or more of the Company's issued
and outstanding capital stock enter into similar agreements. The provisions of
this Section 5.3(a)(ii) shall not apply to any holder of Registrable Securities
prevented by applicable statute or regulation from entering into such agreement;
provided, however, that any such holder shall undertake in its request to
participate in any such underwritten offering, not to effect a public sale or
distribution of any applicable class of securities commencing on the date of
sale of such applicable class of the securities unless it has provided
not less than forty-five (45) days' prior written notice of such sale or
distribution to the underwriter or underwriters.
6. Registration Expenses.
6.1 Expenses Borne by Company. Except as specifically otherwise
provided in Sections 3.3 and 6.2 hereof, the Company will be responsible for
payment of all expenses incident to the Company's performance of or compliance
with this Agreement and any registration hereunder, including, without
limitation, all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws (including reasonable fees and disbursements of
counsel for the underwriters in connection with the blue sky qualifications of
the Registrable Securities as the managing underwriter or the holders of a
majority of the Registrable Securities being sold may designate), fees and
expenses associated with filings required to be made with the NASD, printing
expenses (including expenses of printing certificates for the Registrable
Securities in a form eligible for deposit with Depository Trust Company and of
prospectuses), messenger and delivery expenses, and fees and disbursements of
counsel for the Company and for all independent certified public accountants
(including the expenses of any special audit and "cold comfort" letters required
by or incident to such performance), underwriters (excluding discounts,
commissions or fees of underwriters, selling brokers, dealer managers or similar
securities industry professionals relating to the distribution of the
Registrable Securities), Securities Act liability insurance if the Company so
desires and other Persons retained by the Company in connection with such
registration (all such expenses borne by the Company being herein called the
"Registration Expenses").
Page 14
6.2 Expenses Borne by Holders. Each holder of Registrable
Securities included in such registration will be responsible for payment of
brokerage discounts, commissions and other sales expenses incident to the
registration of any Registrable Shares registered hereunder. In addition,
holders of the Registrable Securities will be responsible for the payment of
their own legal fees if they retain legal counsel separate from that of the
Company. The holders of the Registrable Securities included in such registration
shall be responsible for payment of their out-of-pocket expenses and the
out-of-pocket expenses of any agents who manage their account. Holders of
Registrable Securities included in such registration also shall be responsible
for payment of any underwriting fees if such holders have requested
participation of an underwriting with respect to an offering subject to Demand
Registration or have elected to participate in a Piggyback Registration using
their own underwriter. Any such expenses which are common to the holders of the
Registrable Securities included in the registration shall be divided among such
holders pro rata on the basis of the number of shares of Registrable Securities
being registered on behalf of such holder, or as such holders may otherwise
agree.
7. Indemnification.
7.1 Indemnification by Company. In the event of any
registration of any Registrable Securities under the Securities Act, the Company
hereby agrees to indemnify, to the fullest extent permitted by law, and hold
harmless each seller of the Registrable Securities hereby, its officers,
directors, employees, partners, agents, and each Person who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and the rules and regulations promulgated thereunder) such holder or acts on
behalf of such holder, and each other Person who participates as an underwriter
in the offering or sale of such Registrable Securities, against all losses,
claims, damages, liabilities and expenses (including attorneys fees) in
connection with defending against any such losses, claims, damages and
liabilities or in connection with any investigation or inquiry, in each case
caused by or based on any untrue or alleged untrue statement of material fact
contained in any Registration Statement in which such Registrable securities are
registered under the Securities Act, Prospectus or preliminary prospectus
contained therein, or any amendment thereof or supplement thereto, or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse each such indemnified person for any reasonable legal or any other
expenses reasonably incurred by them or any of them in connection with
investigating or defending any such claim (or action or proceeding in respect
thereof); provided, that the Company shall not be liable in any such case to the
extent that (i) same arises out of or is based on an untrue statement or alleged
untrue statement or omission or alleged omission made in such Registration
Statement, any such Prospectus or preliminary prospectus, or in any amendment or
supplement thereto in reliance on and in conformity with written information
furnished to the Company by such holder of Registrable Securities specifically
stating that it is for use in the preparation thereof, (ii) such holder or any
underwriter or selling agents failed to deliver a copy of the Prospectus or any
amendments or supplements thereto to the Person asserting such loss, claim,
damage, liability, or expense if the Company had furnished such holder with a
reasonably sufficient number of copies of the same, or (iii) such holder has
violated the provisions of Section 5.2 hereof. In connection with an
underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each Person who controls (within the meaning of the
Securities Act) such underwriters at least to the same extent as provided above
Page 15
with respect to the indemnification of the holders of Registrable Securities.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of a holder or any such underwriter and shall
survive the transfer of the Registrable Securities by a holder.
7.2 Indemnification by Sellers. In connection with any
Registration Statement in which a holder of Registrable Securities is
participating, each such holder will furnish to the Company in writing
information concerning such holder that is required by the provisions of
applicable law and regulation to be included in a Registration Statement as the
Company reasonably requests for use in connection with any such Registration
Statement or Prospectus and, to the extent permitted by law, each such holder,
jointly and severally, will indemnify the Company, its directors and officers,
and each Person who controls (within the meaning of the Securities Act) the
Company against any losses, claims, damages, liabilities and expenses resulting
from any untrue or alleged untrue statement of material fact contained in the
Registration Statement, Prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, but only to the extent that such untrue statement or omission is
contained in any information so furnished in writing by such holder expressly
for use in connection with such Registration Statement; provided, however, that
the indemnity agreement contained in this Section 7.2 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 such holder, which consent shall
not be unreasonably withheld or delayed; and provided, further, that, in no
event shall any indemnity under this Section 7.2 exceed the net proceeds from
the offering actually received by such holder.
7.3 Assumption of Defense by Indemnifying Party. Any Person
entitled to indemnification hereunder will (a) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided, however,
that any Person entitled to indemnification hereunder shall have the right to
employ separate counsel and to participate in the defense of such claim, but the
fees and expenses of such counsel shall be at the expense of such Person unless
(i) the indemnifying party has agreed to pay such fees or expenses, or (ii) the
indemnifying party shall have failed to assume the defense of such claim and
employ counsel reasonably satisfactory to such Person or (iii) in the reasonable
judgment of any such Person, based upon written advice of its counsel, a
conflict of interest may exist between such Person and the indemnifying party
with respect to such claims (in which case, if the Person notifies the
indemnifying party in writing that such Person elects to employ separate counsel
at the expense of the indemnifying party, the indemnifying party shall not have
the right to assume the defense of such claims on behalf of such Person). If
such defense is not assumed, the indemnifying party will not be subject to any
liability for any settlement made without its consent (but such consent will not
be unreasonably withheld). An indemnifying party which is not entitled to, or
elects not to, assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which case the indemnifying party shall pay the reasonable fees and
expenses of such additional counsel or counsels. The failure of any indemnified
party to provide the notice required by Section 7.3(a) above shall not relieve
the indemnifing party under this Section 7, except to the extent that the
indemnifying party is actually prejudiced by such failure to give notice.
Page 16
7.4 Contribution. If for any reason the indemnification
provided for in Sections 7.1 and 7.2 is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by Sections 7.1 and 7.2, then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnified party and the indemnifying party, but also the relative fault
of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations. 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.
7.5 Binding Effect. The indemnification provided for under
this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the
transfer of securities.
8. Participation in Underwritten Registrations.
8.1 Underwriting Arrangements. No Person may participate in
any Registration Statement hereunder which is underwritten unless such Person
(a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under such underwriting arrangements.
9. General Provisions.
9.1 No Inconsistent Agreements. The Company will not on or
after the date hereof, without the consent of the holders of not less than
two-thirds of the Registrable Securities, enter into any agreement with respect
to its securities which is inconsistent with the rights granted to the holders
of Registrable Securities in this Agreement, grants to any person or entity
rights as to registration that all superior to are more beneficial than the
rights granted hereunder, or otherwise conflicts with the provisions hereof. The
rights granted to holders of Registrable Securities hereunder do not in any way
conflict with any other agreement to which the Company is a party.
9.2 Remedies. All remedies under this Agreement, or by law
or otherwise afforded to any party hereto, shall be cumulative and not
alternative. Any Person having rights under any provision of this Agreement will
be entitled to enforce such rights specifically to recover damages caused by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or other
security) for specific performance and for other injunctive relief in order to
enforce or prevent violation of the provisions of this Agreement.
Page 17
9.3 Term. Except as specifically otherwise provided herein,
the provisions of this Agreement shall terminate upon the earlier to occur of:
(i) no Registrable Securities remain outstanding, (ii) all of the Registrable
Securities may be transferred, sold, or otherwise disposed of in accordance with
the provisions of Rule 144(e) or 144(k) promulgated under the Securities Act, or
(iii) on the fifth anniversary of this Agreement.
9.4 Amendments and Waivers. Except as otherwise
specifically provided herein, this Agreement may be amended or waived only upon
the prior written consent of the Company and the holders of a majority of the
then outstanding shares of Registrable Securities.
9.5 Assignment. This Agreement shall be binding upon and
inure to the benefit and be enforceable by the parties hereto, and their
respective successors and assigns, whether so expressed or not. In addition,
whether or not any express assignment has been made, the provisions of this
Agreement which are for the benefit of holders of Registrable Securities also
are for the benefit of, and enforceable by, any subsequent holder of such
Registrable Securities so long as, and to the extent that, such securities
continue to be Registrable Securities.
9.6 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
9.7 Counterparts. This Agreement may be executed in
multiple counterparts, any one of which need not contain the signatures of more
than one party, but all such counterparts taken together will constitute one and
the same Agreement.
9.8 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
9.9 Governing Law. All questions concerning the
construction, validity and interpretation of this Agreement will be governed by
and construed in accordance with the domestic laws of the State of Nevada,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Nevada or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Nevada.
9.10 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
with respect of the subject matter contained herein. This agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
9.11 Notices. All notices, demands, or other communications
to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be delivered personally to the recipient, sent to
the recipient by reputable express courier service (charges prepaid), mailed to
the recipient by certified or registered mail, return receipt requested and
postage prepaid, or by telecopy and shall be deemed to have been received at the
time of personal delivery, on the next business day if delivered by express
Page 18
courier, three business days after deposit in the mail, or at the time of
transmission, if sent by telecopy during the recipient's business hours (or
otherwise on the next business day). Such notices, demands and other
communications will be sent to each holder at the address indicated on the
records of the Company and to the Company at the address indicated below:
(a) If to the Company:
3604 Swann Avenue
Tampa, Florida 33609
Attn: Corporate Secretary
(b) If to Stockholders:
To their respective addresses shown on the Company's
records or to such other address or to the attention
of such Person as the recipient party has specified
by prior written notice to the sending party.
with a copy, which shall not constitute notice, to:
Richard A. Denmon, Esq.
Carlton, Fields, P.A.
777 South Harbour Island Boulevard
Tampa, Florida 33602
9.12 Delays or Omissions. No failure to exercise or delay
in the exercise of any right, power or remedy accruing to a holder on any breach
or default of the Company under this Agreement shall impair any such right,
power or remedy nor shall it be construed to be a waiver of any such breach.
9.13 Aggregation of Stock. All shares of Registrable
Securities held or acquired by affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.
[Remainder of Page Intentionally Left Blank - Signatures on Next Page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY:
ODYSSEY MARINE EXPLORATION, INC.,
a Nevada corporation
By: /s/ John C. Morris
-----------------------------------------
John C. Morris
President and Chief Executive Officer
Page 19
PURCHASER:
---------
MACDOUGALD FAMILY LIMITED
PARTNERSHIP, a Nevada limited partnership
By: MACDOUGALD MANAGEMENT, INC.,
a Nevada corporation, General Partner
By: /s/ James E. MacDougald
---------------------------------
James E. MacDougald,
President
Signature Page to Amended and Restated Registration Rights Agreement
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