EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of
October 24, 1996, by and among Maintenance Specialists of America, Inc., a Texas
corporation (the "Company"), and the Holders as defined herein, to be effective
as provided in Section 3.3.
Recitals
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WHEREAS, in connection with the sale and issuance of the common stock, par
value $.001 per share (the "Common Stock"), of the Company to certain persons,
the Company has agreed to enter into this Registration Rights Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall
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have the following respective meanings:
"best lawful efforts" shall mean the efforts that a prudent
business person desirous of achieving a result would use under similar
circumstances to ensure that such result is achieved as expeditiously as
possible.
"Xxxx Holders" shall mean Xxxxxx X. Xxxx and any transferee(s) of
Registrable Securities initially issued to Xxxxxx X. Xxxx in accordance
with that certain Subscription Agreement, dated the date hereof, between
the Company and Xx. Xxxx.
"Commission" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Common Stock" means the Common Stock, par value $.001, of the
Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Holders" shall mean those persons listed on Schedule A hereto as
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a "Holder" under this Agreement, including the Xxxx Holders and Management
Holders.
"Initiating Holders" shall have the meaning assigned in Section
2.1(a) of this Agreement.
"Management Holders" shall mean those persons listed on Schedule
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A hereto and identified as "Management Holders" under this Agreement,
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together with the designees identified in their respective Subscription
Agreements for issuance of shares.
"Registrable Securities" means any Common Stock of the Company
issued or issuable by the Company to a Holder, and other securities issued
or issuable in respect of the above upon any stock split, stock dividend,
recapitalization, or similar event; excluding in all cases, however, any
Common Stock or other security transferred pursuant to a registration
statement, or Rule 144 under the Securities Act.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses, other than
Selling Expenses (as defined below), incurred by the Company in complying
with Sections 2.1 and 2.2 hereof, including, without limitation, all
registration, qualification and filing fees, exchange listing fees,
printing expenses, escrow fees, fees and disbursements of counsel for the
Company, blue sky fees and expenses, the expense of any special audits
incident to or required by any such registration (but excluding the
compensation of regular employees of the Company which shall be paid in any
event by the Company) and the reasonable fees and disbursements of one
counsel for all Holders.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute and the rules and regulations of
the Commission thereunder, all as the same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities
registered by the Holders and, except as set forth above, all fees and
disbursements of counsel for any Holder.
2. Registration Rights.
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2.1 Requested Registration.
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(a) Request for Registration. In case the Company shall receive from
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(1) Xxxx Holders who in the aggregate hold at least 40% of the then outstanding
Registrable Securities held by all the Initiating Holders, or (2) Management
Holders who in the aggregate hold at least 40% of the then outstanding
Registrable Securities held by all of the Management Holders, a written request
that the Company effect any registration, qualification or compliance with
applicable registration provisions of the Securities Act with respect to shares
of Registrable Securities then outstanding (Holders providing such written
request shall be the "Initiating Holders"), the Company will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best lawful efforts to
effect such registration, qualification or compliance (including, without
limitation, appropriate qualification under applicable blue sky or other
state securities laws and appropriate
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compliance with applicable regulations issued under the Securities Act and
any other governmental requirements or regulations) as may be so requested
and as may be reasonably required to permit or facilitate the sale and
distribution of all or such portion of such Registrable Securities as are
specified in such request, together with all or such portion of the
Registrable Securities of any Holders joining in such request as are
specified in a written request received by the Company within fifteen (15)
days after receipt by all of the Holders of such written notice from the
Company; provided, however, that the Company shall not be obligated to take
any action to effect any such registration, qualification or compliance
pursuant to this Section 2.1:
(A) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of process
in effecting such registration, qualification or compliance unless the
Company is already subject to service in such jurisdiction and except
as may be required by the Securities Act;
(B) Prior to the earlier to occur of (1) five (5) years
after the date of this Agreement and (2) the date upon which the
Company shall have both (a) sold Common Stock to the public in an
underwritten offering at an offering price of at least $5.00 per share
(subject to appropriate adjustments for stock splits, dividends,
combinations and the like) and at an aggregate offering price to the
public of at least $7,500,000, pursuant to an effective registration
statement filed with the Securities and Exchange Commission and (b)
obtained the listing (or filed an application for the listing) of its
shares of Common Stock on a national securities exchange or the NASDAQ
National Market System;
(C) During the period starting with the date sixty (60) days
prior to the Company's estimated date of filing of, and ending on the
date one hundred twenty (120) days immediately following the effective
date of, any registration statement pertaining to securities of the
Company (other than a registration of securities in a Rule 145
transaction or with respect to any employee benefit plan), provided
that (1) the Company is actively employing in good faith all
reasonable efforts to cause such registration statement to become
effective, (2) the registration statement relates to a firm commitment
underwriting and the Initiating Holders were provided an opportunity
to include shares in such registration statement in accordance with
Section 2.2 hereof and (3) the Company cannot, pursuant to this
Section 2.1(a)(ii)(C), delay implementation of a demand for
registration more than once in any twelve (12) month period;
(D) After the Company has effected one such registration
pursuant to this subparagraph 2.1(a) and such registration has been
declared or ordered effective; provided, however, that in the event
that less than 80% of the shares requested to be registered by the
Initiating Holders are in fact registered and sold in connection with
any registration, such registration shall not be counted as the
registration permitted by this Section 2.1(a)(ii)(D); and provided
further that the Xxxx Holders on the one hand, and the Management
Holders, on the other hand, may
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request three registrations on Form S-3 so long as the Company is
eligible to use Form S-3 and the other requirements and limitations of
this Section 2.1 are complied with.
(E) If the Company shall furnish to such Initiating Holders
a certificate signed by the President or Chief Executive Officer of
the Company stating that in the good faith judgment of the Board of
Directors of the Company it would be seriously detrimental to the
Company or its shareholders for a registration statement to be filed
in the near future, or that delay in the filing of any registration
statement is necessary in light of a pending corporate development,
then the Company's obligation to use its best lawful efforts to
register, qualify or comply under this Section 2.1 shall be deferred
(with respect to any demand for registration hereunder) for a period
not to exceed one hundred twenty (120) days from the date of receipt
of written request from the Initiating Holders, provided that the
Company cannot, pursuant to this Section 2.1(a)(ii)(E), delay
implementation of a demand for registration more than once in any
twelve (12) month period; or
(F) If the registration or qualification requested does not
relate to at least 500,000 shares in the aggregate of Registrable
Securities held by the Initiating Holders making such request.
Subject to the foregoing clauses (A) through (F), the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as practicable, after receipt of the request or
requests of the Initiating Holders.
(b) Underwriting. In the event that a registration pursuant to
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Section 2.1 is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as part of the notice given pursuant to
Section 2.1(a)(i). In such event, the right of any Holder to registration
pursuant to Section 2.1 shall be conditioned upon such Holder's participation in
the underwriting arrangements required by this Section 2.1, and the inclusion of
such Holder's Registrable Securities in the underwriting to the extent requested
shall be limited to the extent provided herein.
The Company shall (together with all Holders and other holders of
Company securities who have rights to distribute their securities through such
underwriting) enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Initiating Holders,
but subject to the Company's reasonable approval. Notwithstanding anything
herein to the contrary, if the managing underwriter advises the Initiating
Holders in writing that marketing factors require a limitation of the number of
shares to be underwritten, then the Company shall so advise all Holders who have
requested to participate in the registration and the number of shares that may
be included in the registration and underwriting shall be allocated among all
Holders who have requested to participate in the registration in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities held
by each of them at the time of filing the registration statement, but only after
eliminating from such registration the securities held by other holders of
Company securities whose rights to distribute their securities through such
underwriting are junior to those of the Holders, and provided further, that the
Registrable Securities held by all Holders that
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are not Initiating Holders shall be reduced and eliminated from such
registration before the reduction or elimination of any Registrable Securities
held by any Initiating Holders and the Registrable Securities held by the
Initiating Holders shall be reduced only after all Registrable Securities held
by other Holders have been eliminated from the underwritten registration. No
Registrable Securities excluded from the underwriting by reason of the
underwriter's marketing limitation shall be included in such registration. To
facilitate the allocation of shares in accordance with the above provisions, the
Company or the underwriters may round the number of shares allocated to any
Holder to the nearest one hundred (100) shares.
If any Holder disapproves of the terms of the underwriting, such
person may elect to withdraw therefrom by written notice to the Company, the
managing underwriter and the Initiating Holders. The Registrable Securities
and/or other securities so withdrawn shall also be withdrawn from registration,
and such Registrable Securities shall be withheld from the market for a period
of one hundred twenty (120) days after the effective date of such registration,
or such other shorter period of time as the underwriters may require.
(c) One Demand. Except as provided in Section 2.1(a)(ii)(D), the Xxxx
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Holders on the one hand, and the Management Holders, on the other hand, shall be
entitled to obtain, and the Corporation shall be obligated to effect, no more
than one effective registration statement under the Securities Act pursuant to
this Section 2.1, but the foregoing shall not otherwise restrict such Holders'
ability to participate in other registrations initiated by other Holders
hereunder.
(d) Prorata Reductions. The Company shall be entitled to register
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securities for sale for its own account in any registration requested pursuant
to this Section 2.1 unless the underwriter shall indicate in writing to the
Initiating Holders that the inclusion of the shares to be sold for the account
of the Company will adversely affect the registration, the price of the shares
to be sold or the number of shares to be sold for the account of the Initiating
Holders. Without the consent of the Initiating Holders, the Company may not
otherwise cause any other registration of securities for sale for its own
account (other than a registration effected solely to implement a stock option
plan or other employee benefit plan or a transaction contemplated by Rule 145 of
the Commission) to become effective less than ninety (90) days after the
effective date of any registration requested pursuant to Section 2.1.
2.2 Company Registration.
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(a) Notice of Registration. If at any time or from time to time the
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Company shall determine to register any of its securities, either for its own
account or the account of a security holder or holders, other than a (i) a
registration relating solely to employee benefit plans, or (ii) a registration
relating solely to a Rule 145 transaction, the Company will:
(i) promptly give to each Holder written notice thereof, and
(ii) use its best lawful efforts to include in such registration
(and any related qualification under blue sky laws or other compliance),
and in any underwriting
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involved therein, all the Registrable Securities
specified in a written request or requests, made within fifteen (15) days
after receipt of such written notice from the Company, by any Holder.
(b) Underwriting. If the registration of which the Company gives
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notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to Section 2.2(a)(i). In such event the right of any Holder's
participation in such underwriting, and the inclusion of Registrable Securities
in the underwriting shall be limited to the extent provided herein. All Holders
proposing to distribute their securities through such underwriting shall
(together with the Company and the other holders distributing their securities
through such underwriting) enter into any underwriting agreement in customary
form with the managing underwriter selected for such underwriting by the
Company.
Notwithstanding anything herein to the contrary, if the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit some or all of
the Registrable Securities that may be included in the registration and
underwriting as follows: the securities held by holders of Company securities
whose rights to distribute their securities through such underwriter are junior
to the Holders shall be cut back first in proportion to their respective
holdings to the extent required by such limitation; thereafter, if a limitation
is still required after eliminating the securities held by holders of Company
securities whose rights to distribute their securities through such underwriter
are junior to the Holders in their entirety from such registration, the number
of Registrable Securities that may be included in the registration and
underwriting by Holders shall be cut back, as nearly as practicable, in
proportion to the respective amounts of Registrable Securities then held by such
Holders to the extent required by such limitation. To facilitate the allocation
of shares in accordance with the above provisions, the Company may round the
number of shares allocable to any Holder to the nearest one hundred (100)
shares.
If any Holder disapproves of the terms of any such underwriting, he
may elect to withdraw therefrom by written notice to the Company and the
managing underwriter, delivered not less than seven days before the effective
date. Any securities excluded or withdrawn from such underwriting shall be
withdrawn from such registration, and shall be withdrawn from the market for a
period of one hundred twenty (120) days after the effective date of the
registration statement relating thereto, or such other shorter period of time as
the underwriters may require.
(c) Right to Terminate Registration. The Company shall have the right
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to terminate or withdraw any registration initiated by it under this Section 2.2
prior to the effectiveness of such registration whether or not any Holder has
elected to include securities in such registration.
2.3 Limitations on Subsequent Registration Rights. The Company agrees and
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covenants that it will not grant or allow any persons any registration rights
with respect to any securities of the Company which are superior to the rights
granted hereunder without the prior written consent of the holders of at least
80% of the outstanding shares of Registrable Securities in which event the
additional holders may be added as parties to this Agreement with regard to any
or all securities of the Company held by them. Any such additional parties
shall execute a counterpart of this Agreement and, upon such execution by each
additional party and the Company, each additional party shall be
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considered a Holder for all purposes of this Agreement. The additional parties
and the additional Registrable Securities shall be identified in an amendment to
this Agreement. In the event that the Company authorizes registration rights
which are superior in any way to those granted herein to the Holders without
such prior written consent, the Holders shall be entitled to the same rights.
2.4 Expenses of Registration. All Registration Expenses shall be borne by
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the Company. Unless otherwise stated, all Selling Expenses relating to
securities registered on behalf of the Holders shall be borne by the Holders pro
rata on the basis of the number of shares so registered.
2.5 Registration Procedures. In the case of each registration,
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qualification or compliance effected by the Company pursuant to this Agreement
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense, the Company will:
(a) Prepare and file with the Commission a registration statement with
respect to such securities and use its best lawful efforts to cause such
registration statement to become and remain effective for at least ninety (90)
days or until the distribution described in the Registration Statement has been
completed;
(b) Furnish to each underwriter such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such underwriter may reasonably
request in order to facilitate the public sale of the shares by such
underwriter, and promptly furnish to each underwriter and Holder notice of any
stop-order or similar notice issued by the Commission or any state agency
charged with the regulation of securities; and
(c) Use its best lawful efforts to cause all Registrable Securities to
be listed or authorized for inclusion on each securities exchange or similar
trading system on which similar securities issued by the Company are then listed
or authorized for trading.
2.6 Indemnification.
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(a) To the extent permitted by law, the Company will indemnify each
Holder participating in a registration pursuant to this Agreement, each of its
officers and directors and partners, and each person controlling such Holder
within the meaning of Section 15 of the Securities Act, with respect to which
registration, qualification or compliance has been effected pursuant to this
Agreement, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the Securities Act, against all
expenses, claims, losses, damages or liabilities (or actions in respect
thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, to the extent such expenses, claims,
losses, damages or liabilities arise out of or are based on any untrue statement
(or alleged untrue statement) of a material fact contained in any registration
statement, prospectus, offering circular or other document, or any amendment or
supplement thereto, incident to any such registration, qualification or
compliance, or based on any omission (or alleged omission) to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
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misleading, or any violation by the Company of the Securities Act or any rule or
regulation promulgated under the Securities Act applicable to the Company in
connection with any such registration, qualification or compliance, and the
Company will reimburse each such Holder, each of its officers and directors, and
each person controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, provided, however, that the indemnity
contained herein shall not apply to amounts paid in settlement of any claim,
loss, damage, liability or expense if settlement is effected without the consent
of the Company (which consent shall not be unreasonably withheld), provided
further, that the Company will not be liable in any such case to the extent that
any such claim, loss, damage, liability or expense arises out of or is based on
any untrue statement or omission or alleged untrue statement or omission, made
in reliance upon and in conformity with written information furnished to the
Company by such Holder, controlling person or underwriter specifically for use
therein. Notwithstanding the foregoing, insofar as the foregoing indemnity
relates to any such untrue statement (or alleged untrue statement) or omission
(or alleged omission) made in a preliminary prospectus but eliminated or
remedied in the amended prospectus on file with the Commission at the time the
registration statement becomes effective or in the final prospectus filed with
the Commission pursuant to Rule 424 of the Commission, the indemnity agreement
herein shall not inure to the benefit of any underwriter or (if there is no
underwriter) any Holder if a copy of the final prospectus filed pursuant to Rule
424 was not furnished to the person or entity asserting the loss, liability,
claim or damage at or prior to the time such furnishing is required by the
Securities Act.
(b) To the extent permitted by law, each Holder will, if Registrable
Securities owned by such Holder are included in the securities as to which such
registration, qualification or compliance is being effected, indemnify the
Company, each of its directors and officers, each underwriter, if any, of the
Company's securities covered by such a registration statement, each person who
controls the Company or such underwriter within the meaning of Section 15 of the
Securities Act, and each other such Holder, each of its officers and directors
and each person controlling such Holder within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement by such
Holder of a material fact, which statement is made by such Holder within one
hundred twenty (120) days of the effective date of such registration statement
and is contained in any such registration statement, prospectus, offering
circular or other document, or any omission by such Holder (or alleged omission)
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, or any violation by such Holder of
any rule or regulation promulgated under the Securities Act applicable to such
Holder and relating to action or inaction required of such Holder in connection
with any such registration, qualification or compliance, and such Holder will
reimburse the Company, such other Holders, such directors, officers,
underwriters or control persons for any legal or other expenses reasonably
incurred in connection with defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Holder specifically for use therein; provided, however,
that the indemnity contained herein shall not apply to amounts paid in
settlement of any claim, loss, damage, liability or expense if settlement is
effected without the consent
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of the Holder from whom such payment is sought (which consent shall not be
unreasonably withheld). Notwithstanding the foregoing, the liability of each
Holder under this subsection (b) shall be limited to an amount equal to the net
proceeds from the sale of the shares sold by such Holder, unless such liability
arises out of or is based on intentional misstatements by such Holder. In
addition, insofar as the foregoing indemnity relates to any such untrue
statement (or alleged untrue statement) or omission (or alleged omission) made
in a preliminary prospectus but eliminated or remedied in the amended prospectus
on file with the Commission at the time the registration statement becomes
effective or in the final prospectus filed pursuant to Rule 424 of the
Commission, the indemnity agreement herein shall not inure to the benefit of the
Company, any underwriter or (if there is no underwriter) any other Holder if a
copy of the final prospectus filed pursuant to Rule 424 was not furnished to the
person or entity asserting the loss, liability, claim or damage at or prior to
the time such furnishing is required by the Securities Act.
(c) Each party entitled to indemnification under this Section 2.6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action
and provided further, that the Indemnifying Party shall not assume the defense
for matters as to which there is a conflict of interest or separate or different
defenses. No Indemnifying Party, in the defense of any such claim or
litigation, shall, except with the consent of each indemnified Party, 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 such
Indemnified Party of a release from all liability in respect to such claim or
litigation. No Indemnified Party shall consent to entry of any judgment or
enter into any settlement without the consent of each Indemnifying Party.
(d) If the indemnification provided for in this Section 2.6 is
unavailable to an Indemnified Party in respect of any losses, claims, damages or
liabilities referred to herein, then each Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and all shareholders offering
securities in the offering (the "Selling Shareholders") on the other from the
offering of the Company securities, or (ii) if the allocation provided by the
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and the Selling
Shareholders on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Selling Shareholders on the other shall be the
net proceeds from the offering (before deducting expenses) received by the
Company on the one hand and the Selling Shareholders on the other. The relative
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fault of the Company on the one hand and the Selling Shareholders on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company or by the
Selling Shareholders and the parties' relevant intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Selling Shareholders agree that it would not be just and
equitable if contribution pursuant to this Section 2.6(d) were based solely upon
the number of entities from whom contribution was requested or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this Section 2.6(d). The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages and liabilities
referred to above in this Section 2.6(d) shall be deemed to include any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
defending any such action or claim, subject to the provisions of Section 2.6(c)
hereof. Notwithstanding the provisions of this Section 2.6(d) or any other
provision of this Article 2, no Holder shall be required to contribute any
amount or make any other payments under this Agreement which in the aggregate
exceed the net proceeds received in the offering by such Holder. No person
guilty of fraudulent misrepresentation (within the meaning of the Securities
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(e) Notwithstanding the foregoing provisions of this Section 2.6, if
pursuant to an underwritten public offering of capital stock of the Company, the
Company, the selling shareholders and the underwriters enter into an
underwriting or purchase agreement relating to such offering which contains
provisions covering indemnification among the parties thereto in connection with
such offering, the indemnification provisions of this Section 2.6, to the extent
they are in conflict therewith, shall be deemed inoperative for the purpose of
such offering, except as to any parties to this Agreement who are not parties to
such subsequent underwriting or purchase agreement.
2.7 Certain Information.
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(a) As a condition to exercising the registration rights provided for
herein, each Holder, with respect to any Registrable Securities included in any
registration, shall furnish the Company such information regarding such Holder,
the Registrable Securities and the distribution proposed by such Holder as the
Company may request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in Section 2.
(b) The failure of any Holder to furnish the information requested
pursuant to Section 2.7(a) shall not affect the obligation of the Company under
Section 2 to the remaining Holder(s) who furnish such information unless, in the
reasonable opinion of counsel to the Company or the underwriters, such failure
impairs or may impair the legality of the Registration Statement or the
underlying offering.
(c) Each Holder, with respect to any Registrable Securities included
in any registration, shall cooperate in good faith with the Company and its
underwriters, if any, in connection with such registration, including placing
such shares in escrow or custody to facilitate the sale and distribution
thereof.
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(d) Each Holder, with respect to any Registrable Securities included
in any registration, shall make no further sales or other dispositions, or
offers therefor, of such shares under such registration statement if, during the
effectiveness of such registration statement, such Holder is informed that an
intervening event has occurred which, in the opinion of counsel to the Company,
makes the prospectus included in such registration statement no longer comply
with the Securities Act until such time as such holder has received from the
Company copies of a new, amended or supplemented prospectus complying with the
Securities Act.
2.8 Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best lawful efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Exchange Act;
(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
(at any time after it has become subject to such reporting requirements); and
(c) So long as a Holder owns any Registrable Securities, to furnish to
such Holder forthwith upon request a written statement by the Company as to its
compliance with the reporting requirements of said Rule 144 (at any time after
ninety (90) days after the effective date of the first registration statement
filed by the Company for an offering of its securities to the general public),
and of the Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent annual or
quarterly report of the Company, and such other reports and documents of the
Company and other information in the possession of or reasonably obtainable by
the Company as a Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing such Holder to sell any such securities
without registration. In addition, if at any time following the effective date
of the first registration of any of the Company's securities under the
Securities Act the Company shall cease to be subject to the requirements of
Section 15(d) of the Exchange Act, the Company will make available to any of the
Holders the information required by Rule 15c2-11(a)(4) of the Exchange Act (or
any corresponding rule hereafter in effect).
2.9 Transfer of Registration Rights. The rights granted to a Holder
-------------------------------
hereunder may be assigned to a transferee or assignee in connection with any
transfer or assignment of Registrable Securities by Holder provided that: (i)
such transfer is otherwise effected in accordance with applicable securities
laws, (ii) the Holder notifies the Company in writing prior to the transfer or
assignment and the assignee or transferee agrees in writing to be bound by the
provisions of this Agreement, and (iii) such transfer is not pursuant to a
registration statement under the Securities Act or Rule 144 promulgated under
the Securities Act.
-11-
2.10 Standstill Agreement. Each Holder agrees, so long as such Holder
--------------------
holds at least five percent (5%) of the Company's outstanding voting equity
securities and upon request of the underwriters managing each of the first three
underwritten public offerings of the Company's securities, not to sell, make any
short sale of, loan, grant any option for the purchase of, or otherwise dispose
of any equity securities of the Company (other than those included in the
registration) without the prior written consent of such underwriters, for such
period of time (not to exceed 120 days) following the effective date of the
registration statement relating to each such underwritten public offering as may
be requested by the underwriters; provided, that the officers and directors of
the Company who own stock of the Company also agree to such restrictions.
3. Miscellaneous.
-------------
3.1 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS BY
-------------
THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF.
3.2 Successors and Assigns. Except as otherwise provided herein, the
----------------------
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto.
3.3 Effective Date, Entire Agreement; Amendment. Notwithstanding anything
-------------------------------------------
in this Agreement to the contrary, this Agreement shall not be effective or
binding on the Company or the Holders until it has been executed by the Company
and persons or entities holding at least two-thirds (2/3) of the outstanding
shares of Registrable Securities. Upon its effectiveness as provided herein,
this Agreement shall constitute the full and entire understanding and agreement
between the parties with regard to the subject hereof. Except as expressly
provided herein, this Agreement, or any provision hereof, may be amended,
waived, discharged or terminated upon the written consent of the Company and the
Holders holding at least 80% of the then outstanding Registrable Securities.
3.4 Notices, Etc. All notices and other communications required or
------------
permitted hereunder shall be in writing and shall be mailed by registered or
certified mail, postage prepaid, or otherwise delivered by hand or by messenger
including Federal Express or similar courier service, addressed (a) if to a
Holder, at such person's address set forth on the signature page hereof, or at
such other address as such party shall have furnished to the Company in writing,
or (b) if to the Company, at 0000 Xxxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000, ATTN: Corporate Secretary, or at such other address as the Company shall
have furnished to the other parties hereto.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective upon receipt.
3.5 Delays or Omissions. Except as expressly provided herein, no delay or
-------------------
omission to exercise any right, power, or remedy accruing to any party to this
Agreement shall impair any such right, power or remedy of such party nor shall
it be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default
-12-
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any party of any breach or default under
this Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be in writing and shall be effective only to
the extent specifically set forth in such writing. All remedies, either under
this Agreement or by law or otherwise afforded to any party to this Agreement,
shall be cumulative and not alternative.
3.6 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which may be executed by less than all of the parties
hereto, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
3.7 Validity. In the event that any provisions hereof are held to be
--------
invalid, illegal or against public policy, the remaining provisions hereof shall
not be affected thereby. In such event, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible with respect to those provisions which were held
to be invalid, illegal or against public policy.
3.8 Construction. Each party to this Agreement has had the opportunity to
------------
review this Agreement with legal counsel. This Agreement shall not be construed
or interpreted against any party on the basis that such party drafted or
authored a particular provision, parts of or the entirety of this Agreement.
3.9 Titles and Subtitles. The titles and subtitles used in this Agreement
--------------------
are used for convenience only and are not considered in construing or
interpreting this Agreement.
IN WITNESS WHEREOF, the undersigned or each of their respective duly
authorized officers or representatives have executed this agreement effective as
of the date first set forth above.
"COMPANY"
MAINTENANCE SPECIALISTS OF
AMERICA, INC.
By: /s/ J.Xxxxxxx Xxxxxxxx, Xx.
---------------------------------------
J. Xxxxxxx Xxxxxxxx, Xx., President
[SIGNATURES CONTINUED ON THE FOLLOWING TWO PAGES]
-13-
"HOLDERS"
XXXXX DECENDENTS TRUST OF 1996
FOR THE BENEFIT OF XXXX
XXXXXXXX XXXXX /s/ XXXXXX X. XXXXXXX-XXXXXXXX
-----------------------------------
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
By:/s/ XXXXXX XXXXXXX
--------------------------------
Xxxxxx Xxxxxxxx, Trustee
Address: c/o Insurance
Network Systems
0000 Xxxxx Xxxxxxxx Xxxxx /s/ XXXXXX XXXXX
-----------------------------------
Xxxxxxxx X, Xxxxx 000 XXXXXX XXXXX
Palm Beach Gardens, FL Address: 0000 Xxxxxx Xxxx#000
00000 Xxxxxx, XX 00000
XXXXX DECENDENTS TRUST OF 1996
FOR THE BENEFIT OF XXXXX
XXXX XXXXXXXXXXX /s/ XXXXXXX XXXXXXXX
-----------------------------------
XXXXXXX XXXXXXXX
Address: 23007 Xxxxx Hollow
By:/s/ XXXXXX XXXXXXXX Xxxxxxx, XX 00000
--------------------------------
Xxxxxx Xxxxxxxx, Trustee
Address: c/o Insurance Network
Systems
0000 Xxxxx Xxxxxxxx Xxxxx /s/ XXXXX XXXXXXXX
-----------------------------------
Building E, Suite 201 XXXXX XXXXXXXX
Palm Beach Gardens, FL Address: 00000 Xxxxx Xxxxxx
00000 Xxxxxxx, XX 00000
/s/ XXXXX XXXXXXX /s/ XXXXXX XXXXXXX
----------------------------------- -----------------------------------
XXXXX XXXXXXX XXXXXX XXXXXXX
Address: City of Arlington Address: 0000 Xxxxxxxx Xx., X.X.
000 Xxxx Xxxxxx Xxxxx, XX 00000
Xxxxxxxxx, XX 00000
/s/ XXXXXXXX X. XXXXXX /s/ XXXXXX X. XXXXXXXX, XX.
----------------------------------- -----------------------------------
XXXXXXXX X. XXXXXX XXXXXX X. XXXXXXXX, XX.
Address: 0000 Xxxxx Xxxx Address: 0000 Xxxxx Xxxxx #0000
Xxxx Xxxx, XX 00000 Xxxxxxx, XX 00000
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XXXXX XXX XXXXXXXXX TRUST XXXXX XXXXXXXXX XXXXXXXXX TRUST
By:/s/ Xxxxxxx X. Xxxxxxxxx By:/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------- -------------------------------------
Xxxxxxx X. Xxxxxxxxx, Trustee Xxxxxxx X. Xxxxxxxxx, Trustee
Address: 2035 Island Oak Address: 0000 Xxxxxx Xxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
/s/ XXXXXX X. XXXX /s/ J. XXXXXXX XXXXXXXX, XX.
----------------------------------- -------------------------------------
XXXXXX X. XXXX J. XXXXXXX XXXXXXXX, XX.
Address: ___________________ Address: 0 Xxxxxxxx Xxxxx, Xxxxx 000
___________________ Xxxxxxx, XX 00000
/s/ XXXXXX X. XXXXX /s/ XXXXXXX X. XXXXXXX
----------------------------------- -------------------------------------
XXXXXXX X. XXXXX XXXXXXX X. XXXXXXX
Address: 0000 Xxxx Xxxxx Address: 00000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000 Xxxxxxx, XX 00000
/s/ XXXXXXX X. XXXXXXXXX /s/ XXXXXX XXXXXX
----------------------------------- -------------------------------------
XXXXXXX X. XXXXXXXXX XXXXXX XXXXXX
Address: 2035 Island Oak Address: 0000 Xxxxx Xxxx
Xxxxxxx, XX 00000 Xxxxx Xxxx, XX 00000
/s/ XXXXXX X. XXXXXX /s/ XXXXXX X. XXXXXX
----------------------------------- -------------------------------------
XXXXXX X. XXXXXX XXXXXX X. XXXXXX
Address: 9833 Warwana Address: 0000 Xxxxxxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
/s/ XXXXX XXXX
-----------------------------------
XXXXX XXXX, TRUSTEE
Address: ________________
________________
-15-
/s/ XXXXXX XXXXXX /s/ XXXXX X. XXXX
-------------------------------- -------------------------------------
XXXXXX XXXXXX XXXXX X. XXXX
Address: ________________ Address: ______________________
________________ ______________________
-16-
