REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of
April 15, 1999 by and among Xxxxxxx-Xxxxxx, Inc., a Delaware corporation
(the "Company"), Strategic Associates, L.P., a limited partnership organized
under the laws of the State of Delaware ("Associates"), and Xxxxxx Xxxxxxx
Strategic Partners Fund, L.P., a limited partnership organized under the laws of
the State of Delaware ("Partners") (Associates and Partners are referred to
herein individually as a "Purchaser" and collectively as the "Purchasers").
WHEREAS, the Company and the Purchasers have entered into a Convertible
Debenture Purchase Agreement dated as of April 15, 1999 (the "Purchase
Agreement");
WHEREAS, pursuant to the Purchase Agreement, the Company and the
Purchasers desire to enter into this Agreement to provide Purchasers with
certain registration rights and to address related matters;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the parties agree as follows:
1. Registration. The Company agrees to use commercially reasonable best
efforts to cause a registration statement under the Securities Act of 1933 (the
"Act") on an appropriate form relating to all of the Conversion Shares (as
defined in the Purchase Agreement) to be filed with the Securities and Exchange
Commission ("SEC") by August 13, 1999. The Company shall have no obligation to
file a registration statement pursuant to this Section 1, unless and until the
Purchasers or the Purchasers' assigns, transferees and distributees as permitted
under the Purchase Agreement (collectively the "Permitted Assigns") shall have
furnished the Company all information and statements about or pertaining to the
Purchasers or their Permitted Assigns in such reasonable detail and on such
timely basis as is reasonably required by the Company in connection with the
preparation of the registration statement.
2. Registration Procedure. In using its commercially reasonable best
efforts to effect the registration described in Section 1, the Company shall, as
expeditiously as reasonably possible:
(a) prepare and file with the SEC a registration statement to
register the continuous offering of the Conversion Shares and use its
commercially reasonable best efforts (i) to cause such registration statement to
become effective as soon as reasonably practicable thereafter (provided that
before filing such a registration statement or prospectus or any amendments or
supplements thereto, the Company shall furnish one counsel for Purchasers with
copies of all such documents proposed to be filed) and (ii) to cause such
registration statement to remain effective until the earlier of the sale of all
Conversion Shares by the Purchasers or their Permitted Assigns or 2 years after
the Closing Date; provided, however, the Company may withdraw the use of the
registration statement upon written notice to the Purchasers or their
Permitted Assigns for a period or periods of time not to exceed in the aggregate
30 days during any 12-month period, if there then exists material, non-public
information relating to the Company which, in the reasonable opinion of the
Company, would not be appropriate for disclosure during that time;
(b) prepare and file with the SEC such amendments and supplements to
such registration statement and prospectus used in connection therewith as may
be necessary to keep such registration statement effective for the period
specified in (a) above;
(c) furnish to each Purchaser such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus
included in such registration statement (including each preliminary prospectus),
and such other documents as the Purchaser may reasonably request;
(d) use its commercially reasonable best efforts to register or
qualify such shares under such other securities or blue sky laws of such
jurisdictions in the United States of America as the Purchasers request (and to
maintain such registrations and qualifications effective for the period
specified in (a) above, and to do any and all other acts and things which may be
necessary or advisable to enable the Purchasers to consummate the disposition in
such jurisdictions of such shares (provided that the Company will not be
required to (i) qualify generally to do business in any jurisdiction where it
would not be required but for this Section 1.3(d), (ii) subject itself to
taxation in any such jurisdiction, or (iii) file any general consent to service
of process in any such jurisdiction);
(e) notify each Purchaser who is a registered owner of a Convertible
Debenture, at any time during which a prospectus relating thereto is required to
be delivered under the Act within the period that the Company is required to
keep a registration statement effective, of the happening of any event as a
result of which the prospectus included in such registration statement contains
an untrue statement of a material fact or omits any material fact necessary to
make the statements therein not misleading, and prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such shares, such prospectus will not contain 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 under which they were
made, not misleading;
(f) use its commercially reasonable best efforts to cause all such
Conversion Shares to be quoted on the NASDAQ National Market (or, if the common
stock of the Company is no longer quoted on the NASDAQ National Market, listed
on the principal exchange upon which the Company's common stock is then listed);
and
(g) enter into such customary agreements (including an underwriting
agreement in customary form) and take all such other actions as the Purchasers
shall reasonably request (and subject to Purchasers' reasonable approval) in
order to expedite or facilitate the disposition of such shares, provided that
the Company shall not be required to enter into any such agreement more than
once.
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3. Registration Expenses. All expenses incurred by the Company in
complying with Sections 1 and 2, including, without limitation, all registration
and filing fees, fees and disbursements of counsel and independent public
accountants for the Company, fees and expenses incurred in connection with
complying with state securities or "blue sky" laws, fees of the National
Association of Securities Dealers, Inc., transfer taxes and fees of transfer
agents and registrars, but excluding any Selling Expenses (as defined below),
are called "Registration Expenses." All underwriting discounts (if any) and
selling commissions applicable to the sale of Conversion Shares are called
"Selling Expenses."
The Company will pay all Registration Expenses in connection with the
registration statement under Section 1. All Selling Expenses in connection with
the registration statement under Section 1 and the sale of Conversion Shares
thereunder shall be borne by the Purchasers or their Permitted Assigns in
proportion to the number of shares sold by each.
4. Indemnity. (a) In connection with the registration of the Conversion
Shares under the Act pursuant to Section 1 hereof, the Company will indemnify
and hold harmless (i) each Purchaser and its Permitted Assigns, (ii) any
underwriter of such Conversion Shares thereunder and (iii) each other person, if
any, who controls such Purchaser, Permitted Assign or underwriter (each a
"Section 4(a) Indemnitee") within the meaning of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Section 4(a)
Indemnitee may become subject under the Act, the Securities Exchange Act of 1934
(the "Exchange Act"), state securities laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (a) any untrue statement or alleged untrue statement of
material fact contained in the registration statement under which such
Conversion Shares were registered under the Act pursuant to Section 1 hereof,
any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereto, (b) the omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made
or (c) any violation by the Company of any rule or regulation promulgated under
the Act, the Exchange Act or state securities laws applicable to the Company and
relating to action or inaction required of the Company in connection with such
registration, and the Company will reimburse each such Section 4(a) Indemnitee
for any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or action,
provided, however, that the Company will not be liable in any such case if any
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement, an omission or
alleged omission or a violation or alleged violation so made in conformity with
information furnished in writing by any such Section 4(a) Indemnitee for use in
such registration statement, preliminary prospectus, final prospectus, amendment
or supplement and provided, further that with respect to any such untrue or
alleged untrue statement in or omission or alleged omission from the related
preliminary prospectus, the indemnity contained in this Section 4 shall not
inure to the benefit of any Section 4(a) Indemnitee from whom the person
asserting any such loss, claim, damage or liability received Convertible
Debentures or Conversion Share to the extent such loss, claim, damage or
liability with respect to such Section 4(a) Indemnitee results from the fact
that both (A) a copy of the
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prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Convertible Debenture or Conversion Share to
such person and (B) the untrue or alleged untrue statement in or omission or
alleged omission from the related preliminary prospectus was corrected in the
final prospectus.
(b) Each Purchaser and its Permitted Assigns Conversion Shares
pursuant to the registration in Section 1, severally and not jointly, will
indemnify and hold harmless the Company, each person, if any, who controls the
Company within the meaning of the Act, each officer of the Company who signs the
registration statement, each director of the Company, each underwriter and each
person who controls any underwriter within the meaning of the Act, (each a
"Section 4(b) Indemnitee"), against all losses, claims, damages or liabilities,
joint or several, to which a Section 4(b) Indemnitee may become subject under
the Act, the Exchange Act, state securities laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereto, 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 to make
the statements therein not misleading, provided, however, that such Purchaser or
its Permitted Assigns will be liable hereunder in any such case if and only to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information pertaining to such Purchaser or its Permitted Assigns, furnished by
such Purchaser or its Permitted Assigns; and provided, further, that in no event
shall any indemnity under this subsection 4(b) exceed the net proceeds from the
offering received by such Purchaser or its Permitted Assigns from the sale of
Conversion Shares.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party in writing thereof, but the omission so to notify
the indemnifying party shall not relieve it from any liability which it may have
to such indemnified party other than under this Section 4 and shall only relieve
it from any liability which it may have to such indemnified party under this
Section 4 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense, the indemnifying party shall not be liable to such indemnified party
under this Section 4 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and if the interests of the indemnified party
reasonably may be deemed to conflict with the interests of the indemnifying
party, the indemnified party shall have the right to select a separate counsel
and to assume such legal defenses and otherwise to participate in the
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defense of such action, with the expenses and fees of such separate counsel and
other expenses related to such participation to be reimbursed by the
indemnifying party as incurred. Each Indemnitee, as a condition to the
indemnification contained in this Section 4, shall use all reasonable efforts to
cooperate with the indemnifying party in the defense of any action or claim. No
indemnifying party shall, without the prior written consent of the Indemnitee
(which consent shall not be unreasonably withheld), effect any settlement of any
pending or threatened proceeding in respect of which any such Indemnitee is or
could have been a party and indemnification could have been sought hereunder by
such Indemnitee, unless such settlement includes an unconditional release of
such Indemnitee from all liability on claims that are the subject matter of such
proceeding.
(d) In order to provide for just and equitable contribution to joint
liability in any case in which a claim for indemnification is made pursuant to
this Section 4 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 4
provides for indemnification in such case, the Company and each Purchaser or its
Permitted Assign will contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (after contribution from others) in
proportion to the relative fault of the Company, on the one hand, and the
Purchaser or its Permitted Assign, severally, on the other hand; provided,
however, that, in any such case, 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 and; provided, further, that in no event shall
any contribution under this subsection 4(d) on the part of any seller exceed the
net proceeds received by such seller from the sale of Conversion Shares.
5. Additional Actions and Documents. Each of the parties hereto hereby
agrees to use its good faith best efforts to bring about the consummation of
this Agreement, and to take or cause to be taken such further actions, to
execute, deliver and file or cause to be executed, delivered and filed such
further documents and instruments, and to obtain such consents, as may be
necessary or as may be reasonably requested in order to fully effectuate the
purposes, terms and conditions of this Agreement.
6. Assignment. Each Purchaser may assign its rights under this Agreement
to any assignee, transferee or distributee of a Convertible Debenture or the
Conversion Shares issuable thereunder.
7. Entire Agreement; Amendment. This Agreement and the Purchase Agreement
including the other writings referred to herein or therein or delivered pursuant
hereto or thereto, constitute the entire agreement among the parties hereto with
respect to the transactions contemplated herein or therein and its supersedes
all prior oral or written agreements, commitments or understandings with respect
to the matters provided for herein. No amendment, modification or discharge of
this Agreement shall be valid or binding unless set forth in writing and duly
executed by the party against whom enforcement of the amendment, modification,
or discharge is sought.
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8. Binding Effect. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
9. Governing Law. This Agreement, the rights and obligations of the
parties hereto, and any claims or disputes relating thereto, shall be governed
by and construed in accordance with the laws of Delaware (excluding the choice
of law rules thereof).
10. Notices. All notices, demands, requests, or other communications which
may be or are required to be given, served, or sent by any party to any other
party pursuant to this Agreement shall be in writing and shall be mailed by
first-class, registered or certified mail, return receipt requested, postage
prepaid, or transmitted by hand delivery (including delivery by courier),
telegram, telex, or facsimile transmission, addressed as follows:
(a) If to the Company:
Xxxxxxx-Xxxxxx, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx Xxxxx, XX 00000-0000
Attention: Chief Executive Officer
with a copy (which shall not constitute notice) to:
White & Case LLP
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Xx., Esq.
Facsimile: 000-000-0000
(b) If to Associates
Strategic Associates, L.P.
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Facsimile: 000-000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxx
Xxxxx, Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
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(c) If to Partners
Xxxxxx Xxxxxxx Strategic Partners Fund, L.P.
Xxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxx
Facsimile: 000-000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx X. Xxxxx
Xxxxx, Xxxxxxx & Xxxxxxxxx
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: 000-000-0000
Each party may designate by notice in writing a new address to which any notice,
demand, request or communication may thereafter to so given, served or sent.
Each notice, demand, request, or communication which shall be mailed, delivered
or transmitted in the manner described above shall be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee (with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a telex) the answerback being deemed conclusive
(but not exclusive) evidence of such delivery) or at such time as delivery is
refused by the addressee upon presentation.
11. Execution in Counterparts. To facilitate execution, this Agreement may
be executed in as many counterparts as may be required; and it shall not be
necessary that the signatures of each party appear on each counterpart; but it
shall be sufficient that the signature of each party appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of all of the parties hereto.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be duly executed on its behalf as of the date first above written.
XXXXXXX-XXXXXX, INC.
By: /s/ Xxxxxxx X. XxXxxxxx
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Name: Xxxxxxx X. XxXxxxxx
Title: CEO
STRATEGIC ASSOCIATES, L.P.
By: Xxxxxx, Xxxxxxx & Company, LLC
its general partner
By: /s/ X. Xxxxxx
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Name:
Title:
XXXXXX, XXXXXXX STRATEGIC
PARTNERS FUND, L.P.
By: Xxxxxx, Xxxxxxx Strategic Partners, L.P.
its general partner
By: /s/ X. Xxxxxx
----------------------------------------
Name:
Title:
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