EXHIBIT 10.35
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (the "Agreement")
made as of January 1, 1999 by and between JANUS AMERICAN GROUP, INC., a Delaware
corporation ("the "Corporation") ("Seller") and XXXXX X. XXXXXX, an individual
(the "Shareholder").
Recitals:
A. As a result of the closing of the transactions contemplated by (i)
the Asset Purchase Agreement dated April 23, 1997 (the "Asset Purchase
Agreement") by and among the Corporation, Xxxx Yeaggy of Ohio, Inc., Motel
Associates of Westerville, Inc., Xxxxx Xxxxxx and the Shareholder and (ii) the
Agreement and Plan of Merger dated April 23, 1997 (the "1997 Merger Agreement";
and together with the Asset Purchase Agreement, the "1997 Acquisition
Agreements"), the Shareholder became the holder of Registrable Securities
(defined below).
B. As a result of the closing of the transactions contemplated by the
Asset Purchase and Agreement and Plan of Merger dated as of January 1, 1999 (the
"1999 Acquisition Agreement"), the Shareholder will become the holder of
additional Registrable Securities.
C. It is a condition precedent to the closing of the transactions under
the 1999 Acquisition Agreement that the Corporation and the Shareholder enter
into this Agreement, which amends and restates the Registration Rights Agreement
dated April 23, 1997.
NOW, THEREFORE, the parties intending to be legally bound, agree as
follows:
1. Definitions. For purposes of this Agreement, the following
definitions shall apply:
(i) The terms "register," "registered," and "registration" refer to a
registration under Section 5 of the Federal Securities Act of 1933, as
amended (the "Act") effected by preparing and filing a registration
statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such registration statement,
document or amendment thereto by the United States Securities and Exchange
Commission ("SEC");
(ii) The term "Common Stock" means the Corporation's common stock, par
value $.01 per share;
(iii) The term "Preferred Stock" means the shares of the Corporation's
Series B Preferred Stock issued under the terms of the Merger Agreement and
issuable under the terms of the 1999 Acquisition Agreement;
(iv) The term "Shareholder Common Stock" means the shares of the
Corporation's Common Stock issued under the terms of the 1997 Acquisition
Agreements; and
(v) The term "Registrable Securities" means the Preferred Stock and the
Shareholder Common Stock collectively;
2. Demand Registration Request as to the Preferred Stock. (a) On a one time
basis, at any time, the Shareholder may deliver to the Corporation a notice to
the effect that the Shareholder desires to have all, but not less than all, of
the Preferred Stock registered under the Act (a "Preferred Demand Registration
Request").
(b) Provided that the Corporation has received a Preferred Demand
Registration Request from holders representing 75% of the outstanding
shares of the Preferred Stock, the Corporation shall thereupon, as
expeditiously as possible, effect the registration of the Preferred Stock
under the Act to permit the transfer by the Shareholder of the Preferred
Stock in accordance with the intended method of transfer described in the
Preferred Demand Registration Request. Notwithstanding the foregoing, (i)
the right of the Shareholder to require registration under this paragraph 2
shall not be exercisable less than six (6) months following the date upon
which a previous registration statement issued in respect of an offering of
securities for cash for the account of the Corporation shall have become
effective and (ii) unless the Shareholder shall notify the Corporation that
the Preferred Stock to be sold can only be sold in a manner not permitted
by Rule 144 of the SEC promulgated under this Act, the Corporation shall
not be required to register any Preferred Stock on behalf of the
Shareholder to the extent such Preferred Stock may then be sold without
restrictive legend in compliance with Rule 144 and the Corporation takes
all steps as are necessary or appropriate to permit the transfer of the
Preferred Stock under such rule.
3. Incidental Registration Rights as to the Preferred Stock. If the
Corporation proposes to register any of its stock or other securities under the
Act in connection with a public offering of such securities (other than a
registration on Form X-0, Xxxx X-0 or other limited purpose form) and all
Preferred Stock has not theretofore been included in a registration statement
under paragraph 2 which remains effective, the Corporation agrees to give the
Shareholder and all other holders of the Preferred Stock prompt written notice
of such registration. Upon the written request of the Shareholder and holders of
the Preferred Stock representing 75% of the outstanding shares in the aggregate
given within twenty (20) days after receipt of such notice, the Corporation
agrees to use its best efforts to cause to be registered under the Act all of
the Preferred Stock. However, the Corporation shall have no obligation under
this paragraph 3 to the extent that, with respect to a public offering
registration, any underwriter of such public offering determines, in its
reasonable discretion, that the inclusion of the Preferred Stock in the offering
would adversely affect its consummation.
4. Demand Registration Request as to the Common Stock. (a) On a one time
basis, at any time following the Termination Date under the Investor Agreement
dated April 23, 1997 herewith between the Corporation and the Shareholder (the
"Investor Agreement"), the Shareholder may deliver to the Corporation a notice
to the effect that the Shareholder desires to have shares of the Shareholder
Common Stock registered under the Act (a "Common Demand Registration Request"),
at the expense of the Corporation, as provided in Section 9 below. The
Corporation shall thereupon, as expeditiously as possible, effect the
registration of the shares of Shareholder Common Stock under the Act to permit
the transfer by the Shareholder of the Shareholder Common Stock in accordance
with the intended method of transfer described in the Common Demand Registration
Request.
(b) To the extent that all of the Shareholder's Shareholder Common
Stock has not theretofore been included in a registration statement under
paragraph (a) above which remains effective, on a one time basis, following
the Termination Date under the Investor Agreement, the Shareholder may
deliver a Common Demand Registration Request, and all of the fees, costs
and expenses of and incidental to such registration shall be at the
Shareholder's expense.
(c) Notwithstanding the foregoing paragraphs (a) and (b), (i) the
right of the Shareholder to require registration under this paragraph 4
shall not be exercisable less than six (6) months following the date upon
which a previous registration statement issued in respect of an offering of
securities for cash for the account of the Corporation shall have become
effective and (ii) unless the Shareholder shall notify the Corporation that
the shares of Shareholder Common Stock to be sold can only be sold in a
manner not permitted by Rule 144 of the SEC promulgated under this Act, the
Corporation shall not be required to register any Shareholder Common Stock
on behalf of the Shareholder to the extent such Shareholder Common Stock
may then be sold without restrictive legend in compliance with Rule 144 and
the Corporation takes all steps as are necessary or appropriate to permit
the transfer of the Shareholder Common Stock under such rule.
5. Incidental Registration Rights as to the Shareholder Common Stock. If
following the Termination Date under the Investor Agreement the Corporation
proposes to register any of its Common Stock under the Act in connection with a
public offering of such securities (other than a registration on Form X-0, Xxxx
X-0 or other limited purpose form), the Corporation agrees to give the
Shareholder prompt written notice of such registration. Upon the written request
of the Shareholder given within twenty (20) days after receipt of such notice,
the Corporation agrees to use its best efforts to cause to be registered under
the Act all of the Shareholder Common Stock which the Shareholder requests to be
included in the registration. However, the Corporation shall have no obligation
under this paragraph 4 to the extent that, with respect to a public offering
registration, any underwriter of such public offering determines, in its
reasonable discretion, that the inclusion of the Shareholder Common Stock, or a
portion thereof, in the offering would adversely affect its consummation.
Moreover, the Corporation shall have no obligation under this paragraph 4 to the
extent that any of Daewoo Corporation, Mitsubishi Corporation, The Prudential
Insurance Company of America or General Electric Capital Corporation, or any of
their respective successors, remains subject to restrictions on the disposition
of its or their Common Stock by way of agreement with the Corporation or under
the terms of the Corporation's Restated Certificate of Incorporation, as
amended.
6. Certain Covenants of the Corporation. Whenever required under this
Agreement to effect the registration of any Registrable Securities, the
Corporation agrees to use its best efforts to:
(i) Keep a registration statement effective for at least a period of
one year in the aggregate, pursuant to the provisions of Rule 415 under the
Act or otherwise, while any holder of Registrable Securities desires to
dispose of the securities covered by such registration statement (but not
after the holder of Registrable Securities, in the reasonable opinion of
the Corporation's counsel, is free to sell all such securities in any three
month period under the provisions of Rule 144 under the Act).
(ii) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of
the Act with respect to the disposition of all securities covered by such
registration statement.
(iii) Furnish to each holder of Registrable Securities such numbers of
copies of a current prospectus, in conformity with the requirements of the
Act, and such other documents as each holder of Registrable Securities may
reasonably require in order to facilitate the disposition of Registrable
Securities owned by such holder of Registrable Securities.
(iv) Use its reasonable 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 be reasonably
requested by the holder of Registrable Securities, provided that the
Corporation 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.
(v) Notify each holder of Registrable Securities of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of material fact
or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing, and use its reasonable best efforts to
promptly update and/or correct such prospectus.
(vi) Furnish, at the request of any holder of Registrable Securities,
an opinion of counsel of the Corporation, dated the effective date of the
registration statement, as to the due authorization and issuance of the
securities being registered.
(vii) Use its best efforts to list the Registrable Securities covered
by such registration statement with any securities exchange on which the
Common Stock, is then listed in accordance with the rules of such exchange.
7. Information to be provided by the Shareholder. The Shareholder will
furnish to the Corporation in connection with any registration under this
Agreement, in writing, such information regarding himself, the Registrable
Securities and other securities of the Corporation held by him and the intended
method of disposition of the Registrable Securities as shall be reasonably
required to effect the registration of the Registrable Securities held by the
Shareholder. Notwithstanding the provisions of this Agreement, if the
Shareholder fails to provide such information to the Corporation on a timely
basis as is reasonably requested by the Corporation, the Corporation may exclude
the Shareholder's Registrable Securities from such registration statement and
the Shareholder will not for twelve (12) months thereafter be entitled to
registration of such Shareholder's Registrable Securities under this Agreement.
8. Indemnification.
(i) The Corporation agrees to indemnify, defend and hold harmless the
Shareholder from and against, and shall reimburse the Shareholder with
respect to, any and all claims, suits, demands, causes of action, losses,
damages, liabilities, costs or expenses ("Liabilities") to which the
Shareholder may become subject under the Act or otherwise, arising from or
relating to (A) any untrue statement or alleged untrue statement of any
material fact contained in a registration statement pursuant to the
provisions of this Agreement, any prospectus contained therein or any
amendment or supplement thereto, or (B) the 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 misleading; provided, however, that the Corporation shall
not be liable in any such case to the extent that any such Liability arises
out of or is based upon an untrue statement or omission so made in
conformity with information furnished by the Shareholder in writing
specifically for use in the preparation thereof.
(ii) The Shareholder shall indemnify, defend and hold harmless the
Corporation from and against, and shall reimburse the Corporation with
respect to, any and all Liabilities to which the Corporation may become
subject under the Act or otherwise, arising from or relating to (A) any
untrue statement or alleged untrue statement of any material fact contained
in a registration statement pursuant to the provisions of this Agreement,
any prospectus contained therein or any amendment or supplement thereto or
(B) the 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 misleading if
the case of (A) or (B) the information was supplied by the Shareholder in
writing specifically for use in the preparation of such registration
statement.
(iii) Promptly after receipt by a party entitled to indemnification
hereunder (an "indemnitee") of notice of the commencement of any action,
such indemnitee shall, if a claim in respect thereof is to be made against
the party required to make indemnification hereunder (the "indemnitor"),
notify the indemnitor in writing thereof, but the omission so to notify the
indemnitor shall not relieve the indemnitor from any Liability which it may
have to the indemnitee other than under this paragraph and shall only
relieve it from any Liability which it may have to the indemnitee under
this section if and to the extent the indemnitor is materially prejudiced
by such omission. In case any such action shall be brought against any
indemnitee and such indemnitee shall notify the indemnitor of the
commencement thereof, the indemnitor 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 indemnitee, and, after
notice from the indemnitor to the indemnitee of its election so to assume
and undertake the defense thereof, the indemnitor shall not be liable to
the indemnitee under this section for any legal expenses subsequently
incurred by the indemnitee 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 indemnitor and such indemnitee and the indemnitee shall
have reasonably concluded that there may be reasonable defenses available
to it which are different from or additional to those available to the
indemnitor or if the interests of the indemnitee reasonably may be deemed
to conflict with the interests of the indemnitor, the indemnitee shall have
the right to select a separate counsel and to assume such legal defenses
and otherwise to participate in the defense of such action, with the
reasonable expenses and fees of such separate counsel and other reasonable
expenses related to such participation to be reimbursed by the indemnitor
as incurred.
9. Expenses of Registration.
(i) With respect to the inclusion of Registrable Securities in a
registration statement pursuant to this Agreement, except for a
registration under Section 4(b), all fees, costs and expenses of and
incidental to such registration, inclusion and public offering shall be
borne by the Corporation; provided, however, that any security holders
participating in such registration shall bear their pro-rata share of the
underwriting discounts and commissions, if any, incurred in connection with
such registration.
(ii) The fees, costs and expenses of registration to be borne by the
Corporation as provided in this paragraph 9 shall include, without
limitation, all registration, filing and NASD fees, printing expenses, fees
and disbursements of counsel and accountants for the Corporation, and all
legal fees and disbursements and other expenses of complying with state
securities or Blue Sky laws of any jurisdiction or jurisdictions in which
securities to be offered are to be registered and qualified. In all cases
the fees and disbursements of counsel and accountants for the holders of
Registrable Securities for personal services rendered incidental to any
registration shall be borne by such respective holders.
10. Standstills. Notwithstanding any other provision of this Agreement, if
requested by the Corporation and an underwriter in connection with a public
offering of securities of the Corporation which are the same or similar to the
Registrable Securities or convertible into such securities or evidencing a right
to purchase such securities registered on Form X-0, X-0, X-0 or similar form of
the SEC then available to the Corporation, the Shareholder shall not sell or
otherwise transfer or dispose of any Registrable Securities held by him during
the one hundred eighty (180) day period following the effective date of a
registration statement of the Corporation filed under the Act; provided that the
foregoing restrictions shall not apply to a registration statement relating
solely to an employee benefit plan or a registration relating solely to a
transaction covered by Rule 145 under the Act on Form S-4 or similar form or
forms promulgated in the future. The Corporation may impose stop-transfer
instructions with respect to the Registrable Securities subject to the foregoing
restriction until the end of said one hundred eighty (180) day period.
11. Rights of Transferees. In the event that all or any part of the
Preferred Stock held by the Shareholder shall at any time be transferred by the
Shareholder, in a transfer permissible under applicable securities laws, other
than pursuant to an effective registration statement, the registration rights
hereunder shall extend to the transferee of such securities. In the event that
all or any part of the Shareholder Common Stock held by the Shareholder shall at
any time be pledged by the Shareholder to a bank or other financial institution
as security for a loan, the registration rights hereunder shall extend to the
pledgee of such securities.
12. Notices. Except as otherwise provided herein, whenever it is provided
herein that any notice, demand, request, consent, approval or other
communication shall or may be given to or served upon any party by any other, or
whenever any party desires to give or serve upon another party communication
with respect to this Agreement, each such notice, demand, request, consent,
approval, or other communication shall be in writing and either shall be
delivered in person with receipt acknowledged or registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
(i) If to the Shareholder, at the address of such holder appearing on
the books and records of the Corporation.
(ii) If to the Corporation, at
Janus American Group, Inc.
0000 Xxxxxxxxx Xxxxxxxxx, X.X.
Xxxx Xxxxx, Xxxxxxx 00000-0000
Telecopy: 561-997-5331
Attention: President
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, or three (3) days after the same shall have been
deposited in the United States mail for overnight delivery or delivered to a
courier service for overnight delivery. Failure or delay in delivering copies of
any notice, demand, request, consent, approval, declaration or other
communication to the persons designated above to receive copies shall in no way
adversely affect the effectiveness of such notice, demand, request, consent,
approval, declaration or other communication.
13. Miscellaneous.
(i) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and assigns.
(ii) None of the terms or provisions of this Agreement may be waived,
altered, modified or amended except in writing duly signed for and on
behalf of the parties hereto.
(iii) Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed as of the day and year first above written.
JANUS AMERICAN GROUP, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: President
/s/ Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Address: 0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
