EXHIBIT VIII
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") dated as of the
22 day of October, 2002, is entered into by and between INTERNATIONAL ASSETS
HOLDING CORPORATION, a Delaware corporation (the "Company"), and JOHN RADZIWILL
(the "Investor").
RECITALS
WHEREAS, the Investor is a party to the Share Subscription Agreement of
even date herewith (the "Subscription Agreement") by and between the Investor
and the Company, providing, inter alia, for the purchase by the Investor of
117,581 shares of the Company's Common Stock (the "Common Shares") and 452,272
shares of the Company's Series A preferred stock (the "Preferred Shares") (the
Common Shares and Preferred Shares are hereafter referred to collectively as the
"Purchased Shares"); and
WHEREAS, the Subscription Agreement provides for the execution and
delivery of a Registration Rights Agreement providing certain registration
rights for the Investor with respect to the Purchased Shares;
WHEREAS, each of the parties hereto desires to set forth in a single
document the registration and certain other rights of the Investor with respect
to the Purchased Shares; and
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions hereinafter set forth and for other good and valuable consideration
the Company and the Investor hereby agree as follows:
Section 1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"Approved Investors" shall mean the Investor, Scott J. Branch and Sean
M. O'Connor, together with their approved assignees and transferees.
"Common Stock" means (a) the Company's common stock, $.01 par value, as
authorized on the date of this Agreement, and (b) any other securities into
which or for which any of the securities described in (a) may be converted or
exchanged pursuant to a plan of recapitalization, reorganization, merger, sale
of assets or otherwise.
"Commission" means the Securities and Exchange Commission, or any other
federal agency at the time administering the Securities Act and the Exchange
Act.
"Company Indemnified Person" means the Company, its directors, each of
its officers who have signed or otherwise participated in the preparation of the
registration statement, each underwriter of the Registrable Securities so
registered (including any broker or dealer through whom such of the shares may
be sold) and each Person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act.
"Exchange Act" means the Securities Exchange Act of 1934, or any
similar federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect at the time.
"Excluded Registration" means a registration under the Securities Act
of shares issued solely in connection with any acquisition of any entity or
business, shares issuable solely upon the exercise of options, or shares
issuable solely pursuant to employee benefit plans, including Registration
Statements on Form S-4, S-8 or any successor form.
"Holder(s)" or "Holder(s) of Registrable Securities" means the Investor
and any assignee or transferee of the Registrable Securities.
"Holder Indemnified Person" means the Holder of Registrable Securities
and each underwriter of the Registrable Securities (including their directors,
officers, affiliates and partners) so registered (including any broker or dealer
through whom such shares may be sold) and each Person, if any, who controls such
Holder or any such underwriter within the meaning of Section 15 of the
Securities Act.
"Investor" means John Radziwill.
"Liabilities" for purpose of Sections 6 and 7 includes any claims,
damages, losses, and liabilities, costs or expenses.
"Person(s)" means an individual, corporation, partnership, joint
venture, limited liability company, trust, or unincorporated organization, or a
government or any agency or political subdivision thereof.
"Preferred Stock" means the Company's preferred stock, $.01 par value,
issued pursuant to the terms and conditions of the Subscription Agreement.
"Registrable Securities" means (a) the Common Shares; (b) Common Stock
of the Company issued in or issuable upon conversion of the Preferred Shares;
and (c) any Common Stock of the Company issued as (or issuable upon the
conversion or exercise of any warrant, right, or other security which is issued
as) a dividend or other distribution with respect to, in exchange for, or in
replacement of, the above-described securities. Notwithstanding the foregoing,
the Registrable Securities shall not include any securities sold by a person to
the public either pursuant to a registration statement or Rule 144 or sold in a
private transaction in which the transferor's rights under this Agreement are
not assigned.
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"Registration Statement" means a registration statement filed under the
Securities Act pursuant to this Agreement.
"Securities Act" means the Securities Act of 1933, or any similar
federal statute, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect at the time.
Section 2. "Demand Registration".
(a) At any time beginning six months from the date of this Agreement
and for a period of three years thereafter, the Holder may make one written
request for registration under the Securities Act, (a "Demand Registration") of
all or part of Holder's Registrable Securities (but such part, together with the
number of securities requested by other Approved Investors, to be included in
such Demand Registration pursuant to this Section 2, shall have an estimated
market value at the time of such request (based upon the then market price of a
share of Common Stock of the Company) of at least $250,000. Notwithstanding the
foregoing, the Company shall not be required to file any registration statement
on behalf of the Holder within twelve months after the effective date of any
earlier registration statement so long as the Holder was given a notice offering
it the opportunity to sell Registrable Securities under the earlier registration
statement and the Holder did not request that its Registrable Securities be
included; provided, however, that if Holder requested that its Registrable
Securities be included in the earlier registration statement but not all were so
included through no fault of the Investor, the Investor may, but shall not be
obligated to, require the Company to file another registration statement
pursuant to a Demand Registration. Within fifteen (15) days after receipt of a
request for a Demand Registration, the Company shall give written notice (the
"Notice") of such request to all other Approved Investors and shall include in
such registration all Registrable Securities that the Company has received
written requests for inclusion therein within 15 days after the Notice is given
(the "Requested Securities"). Thereafter, the Company may elect to include in
such registration additional shares of Common Stock to be issued by the Company.
All requests made pursuant to this Section 2 shall specify the aggregate number
of Registrable Securities to be registered.
(b) A registration shall not constitute a Demand Registration under
this Section 2 until it has become effective.
(c) The Holder making the Demand Registration may elect whether the
offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of a firm commitment underwritten offering or otherwise;
provided, however, that such Holder may not elect that such offering be made on
a delayed or continuous basis pursuant to rule 415 under the Securities Act. In
any case in which an offering is in the form of a firm commitment underwritten
offering, 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 aversely
affecting the market for the Company's Common Stock, the Company will include in
such registration the number of Registrable Securities that in the opinion of
such
managing underwriter or underwriters can be sold without adversely
affecting the market for the Company's Common Stock. In such event, the number
of Registrable Securities, if any, to be offered for the accounts of Approved
Investors (including the Holder making the Demand Registration) shall be reduced
pro rata on the basis of the relative number of any Registrable
Securities requested by each Approved Investor to be included in such
registration to the extent necessary to reduce the total number of Registrable
Securities to be included in such offering to the number recommended by such
managing underwriter or underwriters. In the event the Holder making the Demand
shall receive notice pursuant to this Section 2(c) that the amount of
Registrable Securities to be offered for such Holder shall be reduced, such
Holder shall be entitled to withdraw the Demand by written notice to the Company
within seven (7) days after receipt of such notice, with the effect that such
Demand shall be deemed not to have been made.
(d) If any of the Registrable Securities covered by a Demand
Registration are to be sold in an underwritten offering, the Approved Investors,
in the aggregate, that own or will own a majority of the Registrable Securities
that the Company has been requested to register (including the Requested
Securities but excluding any securities to be issued by the Company), shall have
the right to select the investment banker or investment bankers and manager or
managers that will underwrite the offering; provided, however, that such
investment bankers and managers must be reasonably satisfactory to the Company.
Section 3. "Piggy-Back" Registration.
(a) If, at any time after the six month anniversary of the date of this
Agreement, the Company shall determine to register any of its Common Stock under
the Securities Act, other than an Excluded Registration, it shall send to each
Holder of Registrable Securities, including each Holder who has the right to
acquire Registrable Securities, written notice of such determination. If within
five (5) business days after receipt of such notice, such Holder shall so
request in writing, the Company will, subject to the limits of this Section 2,
use its best efforts to include in such Registration Statement all or any part
of the Registrable Securities such Holder requests to be registered therein.
(b) If, however, in connection with any offering under this Section
involving an underwriting of the Common Stock to be issued by the Company, the
managing underwriter shall impose a limitation on the number of shares which may
be included in any such Registration Statement because, in its judgment, such
limitation is necessary to effect an orderly public distribution, and such
limitation is imposed pro rata with respect to all shares whose holders have a
contractual, incidental ("piggyback") right to include such shares in the
Registration Statement, and as to which inclusion has been requested pursuant to
such right and there is first excluded from such Registration Statement all
shares sought to be included therein by any holder thereof having contractual,
piggyback registration rights subordinate and junior to the rights of the
Holders of Registrable Securities, then the Company shall only be obligated to
include in such Registration Statement that number of the Registrable Securities
so requested to be registered by such Holders as will constitute no less than
ten percent (10%) of the total number of Registrable Securities so requested to
be registered by the Holders thereof.
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(c) The obligations of the Company under this Section 3 shall terminate
at such time as a Holder may sell any Registrable Securities without
registration pursuant to Rule 144(k) as promulgated under the Securities Act.
Section 4. Registration Procedures. If and whenever the Company is
required by the provisions of this Agreement to effect the registration of
Registrable Securities under the Securities Act, the Company will:
(a) promptly prepare and file with the Commission a Registration
Statement with respect to such shares, and use its best efforts to cause such
Registration Statement to become effective;
(b) maintain the effectiveness of the Registration Statement until the
earlier to occur of (i) the completion by the underwriters of the distribution
pursuant to such Registration Statement or (ii) one hundred twenty (120) days
after the effectiveness of any Registration Statement.
(c) provide each Holder of Registrable Securities and any underwriter
thereof with as many copies of the preliminary and final prospectus as it may
reasonably request for the period effectiveness is required to be maintained
under paragraph (b) above;
(d) prepare and promptly file with the Commission such amendment or
supplement to such Registration Statement or prospectus as may be necessary to
maintain effectiveness for the period under paragraph (b) or to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event shall
have occurred as the result of which any such prospectus or any other prospectus
as then in effect would include an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances in which they were made, not misleading;
(e) prepare and file with the Commission, promptly upon the request of
any such Holders, any amendments or supplements to such Registration Statement
or prospectus which, in the opinion of counsel for such Holders (and concurred
in by counsel for the Company), is required under the Securities Act or the
rules and regulations promulgated thereunder in connection with the distribution
of the Registrable Securities by such Holders;
(f) refrain from filing any amendment or supplement to such
Registration Statement or prospectus to which a majority in interest of such
participating Holders shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects with the
requirements of the Securities Act or the rules and regulations promulgated
thereunder, after having been furnished with a copy thereof at least five (5)
business days prior to the filing thereof, unless in the opinion of counsel for
the Company the filing of such amendment or supplement is reasonably necessary
to protect the Company from any liabilities under any applicable federal or
state law and such filing will not violate applicable law;
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(g) promptly notify each selling Holder of Registrable Securities, such
selling Holder's counsel and any underwriter and (if requested by any such
Person) confirm such notice in writing, of the happening of any event which
makes any statement made in the Registration Statement or related prospectus
untrue or which requires the making of any changes in such Registration
Statement or prospectus so that they will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein in light of the circumstances under
which they were made not misleading; and, as promptly as practicable thereafter,
prepare and file with the Commission and furnish a supplement or amendment to
such prospectus so that, as thereafter deliverable to the purchasers of such
Registrable Securities, such prospectus will not contain any untrue statement of
a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
(h) notify each Holder participating in such registration, promptly
after it shall receive notice thereof, of the time when such Registration
Statement has become effective or a supplement to any prospectus forming a part
of such Registration Statement has been filed;
(i) notify each Holder promptly of any request by the Commission for
the amending or supplementing of such Registration Statement or prospectus or
for additional information;
(j) advise each such Holder, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of such Registration Statement or the initiation or
threatening of any proceeding for that purpose and use its best efforts to
prevent the issuance of any stop order or to obtain its withdrawal if such stop
order should be issued;
(k) furnish to each selling Holder a copy of all documents filed and
all correspondence from or to the Commission in connection with any such
offering of securities;
(l) if, at the time of such registration, the Company's Common Stock is
listed on any national securities exchange or the Nasdaq Stock Market, Inc., use
its best efforts to simultaneously list on such exchange or the Nasdaq Stock
Market, Inc., and maintain such listing of, all of the Registrable Securities;
(m) at the expense of the Holders, to use its best efforts to register
and qualify the securities covered by such Registration Statement under such
other securities or "blue sky" laws of such jurisdictions as shall reasonably
requested by the Holders, provided that the Company shall not be required in
connection therewith or as a condition thereto to qualify to do business or to
file a general consent to service of process in any such states or
jurisdictions; and
(n) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security Holders,
as soon as reasonably practicable, an earnings statement covering the period of
at least twelve (12) months, but not more than eighteen (18) months, beginning
with the first month after the effective date of the Registration Statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
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Section 5. Further Obligations of the Parties.
(a) Whenever under the preceding sections of this Agreement, the
Company is required hereunder to register Registrable Securities, it agrees that
it shall also do the following:
(i) With prior notice and at reasonable times during normal business
hours and without undue interruption of the Company's business or
operations, permit each selling Holder or its counsel or other
representatives to inspect and copy such corporate documents,
records and properties as may reasonably be requested by them to
enable them to exercise their due diligence responsibilities, and
cause the Company's officers and agents to supply any information
reasonably requested for that purpose;
(ii) Enter into any reasonable underwriting agreement containing such
provisions as are customary for such an arrangement and use its
best efforts to facilitate the public offering of the shares;
(iii) In connection with any underwritten public offering of such
Registrable Securities, 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 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; and
(iv) Use its best efforts to insure the obtaining of all necessary
approvals from the National Association of Securities Dealers,
Inc.
(b) Whenever the Holders are registering Registrable Securities
pursuant to any Registration Statement, each such Holder agrees to (i) timely
provide to the Company, at its request, such information and materials as it may
reasonably request in order to effect the registration of such Registrable
Securities, (ii) enter into a written agreement with the underwriters and the
Company in such form and containing such provisions as are customary in the
securities business for such an arrangement between major underwriters and
companies of the Company's size and investment stature, and such selling Holder
of Registrable Securities will use its best efforts to cause its counsel to give
any opinion customarily given in connection with secondary distributions under
similar circumstances, (iii) comply with all applicable laws and, during such
time as any such selling Holder of Registrable Securities may be engaged in a
distribution of such Registrable Securities, such selling Holder of Registrable
Securities will, to the extent required by such laws, among other things (a) not
engage in any stabilization activity in connection with the securities of the
Company in contravention of such laws, (b) distribute the Registrable Securities
owned by such selling Holder of Registrable Securities solely in the manner
described in the applicable registration statement or as otherwise permitted by
law, (c)
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cause to be furnished to each agent or broker-dealer to or through whom the
Registrable Securities owned by such selling Holder of Registrable Securities
may be offered, or to the offeree if an offer is made directly by such Holder,
such copies of the applicable prospectus (as amended and supplemented to such
date) and the documents incorporated by reference therein as may be required by
such agent, broker-dealer or offeree, provided that the Company shall have
provided such selling Holder of Registrable Securities with an adequate number
of copies thereof and (d) not bid for or purchase any shares of the Company or
attempt to induce any person to purchase any shares of the Company other than
pursuant to such distribution, and (iv) on notice from the Company of the
happening of any event specified in paragraph (g) of Section 4 hereof, that
requires the suspension by such selling Holder of Registrable Securities of the
distribution of any of the Registrable Securities, then such selling Holder will
cease offering or distribution the Registrable Securities until the Company
notifies such selling Holder that offering and distribution of the Registrable
Securities may recommence.
Section 6. Indemnification of Holder Indemnified Persons.
(a) In the event that the Company registers any of the Registrable
Securities under the Securities Act, the Company will, to the extent permitted
by law, indemnify and hold harmless each Holder Indemnified Person from and
against any and all Liabilities, joint or several, to which they or any of them
become subject under the Securities Act or under any other statute or at common
law or otherwise, and, except as hereinafter provided, will reimburse the Holder
Indemnified Persons, for any legal or other expenses reasonably incurred by them
or any of them in connection with investigating or defending any actions,
whether or not resulting in any Liability, insofar as such Liabilities arise out
of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any filing with any
state securities authority, in any preliminary or amended preliminary prospectus
or in the final prospectus (or the Registration Statement or prospectus as from
time to time amended or supplemented by the Company) or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act or any state securities laws or
regulations applicable to the Company and relating to action or inaction
required of the Company in connection with such registration, unless (i) such
untrue statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement, preliminary or amended preliminary
prospectus or final prospectus in reliance upon and in conformity with
information furnished in writing to the Company in connection therewith by such
Holder Indemnified Person expressly for use therein or (ii) in the case of a
sale directly by such Holder (including a sale of such Registrable Securities
through any underwriter retained by such Holder to engage in a distribution
solely on behalf of Holder), such untrue statement or alleged untrue statement
or omission or alleged omission was contained in a preliminary prospectus and
corrected in a final or amended prospectus at or prior to the confirmation of
the sale of Registrable Securities to the Person asserting any such Liability in
any case where such delivery is required by the Securities Act or any state
securities laws and such Holder was timely provided with sufficient copies of
such final or amended prospectus, provided that such delivery of such final or
amended
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prospectus would have legally cured such untruth or omission or alleged untruth
or alleged omission.
(b) Promptly after receipt by any Holder Indemnified Person of notice
of the commencement of any action in respect of which indemnity may be sought
against the Company, such Holder Indemnified Person will notify the Company in
writing of the commencement thereof, and, subject to the provisions hereinafter
stated, the Company shall assume the defense of such action (including the
employment of counsel, who shall be counsel reasonably satisfactory to such
Holder Indemnified Person), and the payment of expenses insofar as such action
shall relate to any alleged liability in respect of which indemnity may be
sought against the Company.
(c) Such Holder Indemnified Person shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall not be at the expense of the
Company unless the employment of such counsel has been specifically authorized
by the Company. The Company shall not be liable to indemnify any Holder
Indemnified Person for any settlement of any such action effected without the
Company's prior written consent, which consent will not be unreasonably
withheld. The Company shall not, except with the prior written approval of each
Holder Indemnified Person being indemnified under this Section 6, 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 the
parties being so indemnified of a release from all liability in respect to such
claim or litigation.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which any Holder Indemnified
Person makes a claim for indemnification pursuant to this Section 6 but it is
judicially determined (by the entry of a final judgment or decree by a court of
competent jurisdiction and the expiration of time to appeal or the denial of the
last right of appeal) that such indemnification may not be enforced in such case
notwithstanding the fact that this Section 6 provides for indemnification in
such case, then the Company and such Holder Indemnified Person will contribute
to the aggregate Liabilities to which they may be subject (after contribution
from others) in such proportion as is appropriate to reflect the relative fault
of the Company on the one hand and of the Holder Indemnified Person on the other
in connection with the statements or omissions which resulted in such
Liabilities, as well as any other relevant equitable consideration. The relative
fault of the Company on the one hand and of the Holder Indemnified Person on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
on the one hand or by the Holder Indemnified Person on the other, and each
party's relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission; provided, however, that, in any
such case, (i) no Holder will be required to contribute any amount in excess of
the public offering price of all such Registrable Securities offered by it
pursuant to such Registration Statement, net of underwriting discounts and
commissions; and (ii) no person or entity guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person or entity who was not guilty of such fraudulent
misrepresentation.
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Section 7. Indemnification of Company Indemnified Persons.
(a) In the event that the Company registers any of the Registrable
Securities under the Securities Act, each Holder of the Registrable Securities
so registered, to the extent permitted by law, will indemnify and hold harmless
the Company Indemnified Persons from and against any and all Liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act or under any other statute or at common law or otherwise, and, except as
hereinafter provided, will reimburse each such Company Indemnified Person for
any legal or other expenses reasonably incurred by them or any of them in
connection with investigating or defending any actions, whether or not resulting
in any Liability, insofar as such Liabilities arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any filing with any state securities commission or
agent, in any preliminary or amended preliminary prospectus or in the final
prospectus (or in the Registration Statement or prospectus as from time to time
amended or supplemented) or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary in order to make the statements therein not misleading, but only
insofar as any such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company in connection
therewith by such Holder of Registrable Securities expressly for use therein;
provided, however, that such Holder's obligations hereunder shall be limited to
an amount equal to the proceeds received by such Holder of the Registrable
Securities sold in such registration.
(b) Promptly after receipt of notice of the commencement of any
action in respect of which indemnity may be sought against such Company
Indemnified Person, the Company will notify such Holder in writing of the
commencement thereof, and such Holder shall, subject to the provisions
hereinafter stated, assume the defense of such action (including the employment
of counsel, who shall be counsel reasonably satisfactory to the Company) and the
payment of expenses insofar as such action shall relate to the alleged liability
in respect of which indemnity may be sought against the Holder.
(c) Each Company Indemnified Person shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall not be at the expense of such
Holder of Registrable Securities unless employment of such counsel has been
specifically authorized by such Holder of Registrable Securities. Such Holder of
Registrable Securities shall not be liable to indemnify any Person for any
settlement of any such action effected without such Holder's prior written
consent, which consent shall not be unreasonably withheld. Such Holder of
Registrable Securities shall not, except with the prior written approval of each
party being indemnified under this Section 7, consent to the 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 the parties being so
indemnified of a release from all liability with respect to such claim or
litigation.
(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which the Company Indemnified
Person exercising its rights under this Agreement, makes a claim for
indemnification pursuant to this Section 7, but it is judicially determined (by
the entry of a final judgment or decree by a court of competent jurisdiction and
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the expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case notwithstanding that this
Section 7 provides for indemnification, in such case, then, the Company and such
Holder will contribute to the aggregate Liabilities to which they may be subject
(after contribution from others) in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and of the Holder of
Registrable Securities on the other in connection with the statements or
omissions which resulted in such Liabilities, as well as any other relevant
equitable consideration. The relative fault of the Company on the one hand and
of the Holder of Registrable Securities on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the Holder
of Registrable Securities on the other, and each party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, however, that, in any such case, (i) no such
Holder will be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered by it pursuant to such
Registration Statement, net of underwriting discounts and commissions; and (ii)
no person or entity guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) will be entitled to contribution from
any person or entity who was not guilty of such fraudulent misrepresentation.
Section 8. Expenses of Registration. In the case of any registration
under Sections 2 or 3 of this Agreement, the Company shall bear the following
costs and expenses incurred by the Company in complying with Sections 2, 3 and 4
hereof: printing, legal and accounting expenses; Securities and Exchange
Commission and National Association of Securities Dealers, Inc. registration and
filing fees and expenses; and "blue sky" fees and expenses except as otherwise
provided in Section 4(m) hereof. The Holders selling Registrable Securities
shall bear the costs of counsel for the selling Holders of Registrable
Securities in connection with the registration of their Registrable Securities
and of any underwriting discounts and selling commissions attributable to the
Registrable Securities.
Section 9. Right of Company To Delay Registration. For a period not to
exceed one hundred eighty (180) days, the Company shall not be prevented from
delaying or abandoning or suspending, a Registration Statement pursuant to this
Agreement at any time when the Board of Directors of the Company, in its good
faith judgment with advice of counsel, reasonably believes that:
(a) the filing thereof at the time requested, or the offering
of the Registrable Securities pursuant thereto, would materially and
adversely affect (1) a pending or scheduled public offering of the
Company's securities, (2) an acquisition, merger, recapitalization,
consolidation, reorganization or similar transaction by or of the
Company, (3) pre-existing and continuing negotiations, discussions or
pending proposals with respect to any of the foregoing transactions, or
(4) the financial condition of the Company in view of the disclosure of
any pending or threatened litigation, claim, assessment or governmental
investigation which may be required thereby; and
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(b) the failure to disclose any material information with
respect to the foregoing would cause a violation of the Securities Act
or the Exchange Act.
Provided that such right to delay a request shall be exercised by the
Company not more than once in any twelve (12) month period.
Section 10. Conditions to Registration Obligations. The Company shall
not be obligated to effect the registration of Registrable Securities pursuant
to Sections 2 or 3 unless all Holders of Registrable Securities being registered
consent to such reasonable conditions as the Company shall determine (with the
advice of counsel) are required by law, including without limitation:
(a) conditions requiring Holder to comply with all prospectus
delivery requirements of the Securities Act and with all anti-stabilization,
anti-manipulation and similar provisions of Section 10 of the Exchange Act and
any rules issued thereunder by the Commission, and to furnish to the Company
information about sales made in such public offering;
(b) conditions prohibiting such Holders upon receipt of telegraphic
or written notice from the Company (until further notice) from effecting sales
of shares, such notice being given to permit the Company to correct or update a
registration statement or prospectus;
(c) conditions requiring that at the end of the period during which
the Company is obligated to keep the Registration Statement effective under
Section 3, the Holders of shares included in the Registration Statement shall
discontinue sales of shares pursuant to such Registration Statement upon receipt
of notice from the Company of its intention to remove from registration the
shares covered by such Registration Statement that remain unsold, and requiring
such Holders to notify the Company of the number of shares registered that
remain unsold immediately upon receipt of notice from the Company; and
(d) conditions requiring the Holders of Registrable Securities to
enter into an underwriting agreement in form and substance reasonably
satisfactory to the Company.
Section 11. Miscellaneous.
(a) No Waiver; Cumulative Remedies. No failure or delay on the part
of any party to this Agreement in exercising any right, power or remedy
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy hereunder.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
(b) Amendments, Waivers and Consents. Except as hereinafter
provided, this Agreement may be amended or terminated, and compliance with any
covenant or provision set forth herein may be omitted or waived, if the Company
(i) shall obtain consent thereto in writing from the holder or holders of at
least fifty percent (50%) in interest of the Registrable Securities, and (ii)
shall deliver copies of such consent in writing to any holders who did not
execute such
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consent; provided that no consents shall be effective to reduce the percentage
in interest of the Purchased Shares and the consent may be given subject to
satisfaction of conditions stated therein and any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that any assignee of the Investor or transferee of the
Registrable Securities shall become a party to this Agreement by executing
together with the Company a counterpart signature page hereto and shall
thereafter for all purposes be deemed to be a "Holder" hereunder.
(c) Addresses for Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing (including telegraphic
communication) and mailed, sent by facsimile or delivered to each applicable
party at the address set forth in the Subscription Agreement or at such other
address or facsimile number as to which such party may inform the other parties
in writing in compliance with the terms of this Section. Any notice or other
communication in connection with this Agreement shall be deemed to be delivered
if in writing addressed as provided and if either (a) actually delivered at said
address, (b) in the case of delivery by facsimile transmission with receipt
acknowledged, or recognized overnight courier service, one business day after
transmittal, or (c) in the case of a letter, three business days after deposit
in the United States mails, postage prepaid and registered or certified, return
receipt requested.
(d) Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the Company and the Investor and their respective heirs,
successors and assigns, except that the Company shall not have the right to
delegate its obligations hereunder or to assign its rights hereunder or any
interest herein without the prior written consent of the holders of at least
fifty percent (50%) in interest of the Registrable Securities.
(e) Prior Agreements. This Agreement and the Subscription Agreement
constitute the entire agreement between the parties and supersede any prior
understandings or agreements concerning the subject matter hereof.
(f) Severability. The provisions of this Agreement and the Subscription
Agreement are severable and, in the event that any court of competent
jurisdiction shall determine that any one or more of the provisions or part of a
provision contained in this Agreement, shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision or part of a provision of
this Agreement or such other agreements; but this Agreement and such other
agreements shall be reformed and construed as if such invalid or illegal or
unenforceable provision, or part of a provision, had never been contained
herein, and such provisions or part reformed so as to be valid, legal and
enforceable to the maximum extent possible.
(g) Governing Law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Florida and without giving
effect to choice of laws provisions thereof.
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(h) Headings. Articles, section and subsection headings in this Agreement
are included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose.
(i) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
(j) Further Assurances. From and after the date of this Agreement, upon the
request of the Investor or the Company, the Company and the Investor shall
execute and deliver such instruments, documents and other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed, or caused to be
executed by their authorized official, this Agreement, effective as of the date
first above written.
INTERNATIONAL ASSETS HOLDING
CORPORATION
By: /s/ Diego J. Veitia
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Name: Diego J. Veitia
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Title: Chairman of the Board
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INVESTOR:
By: /s/ John Radziwill
------------------------------------------------
John Radziwill
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