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EXHIBIT 10.8
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of April 2, 2001 (the "EFFECTIVE DATE"), by and between U S
Industrial Services, Inc., a Delaware corporation (the "COMPANY") Xxxxx X.
Xxxxxxxx ("XXXXXXXX"), and any Permitted Transferee (as defined in Section 8)
that executes a counterpart to this Agreement.
WHEREAS, the Company and Xxxxxxxx are parties to that certain
Employment Agreement (so called herein) of even date herewith. In order to
induce Xxxxxxxx to enter into the Employment Agreement, the Company has agreed
to provide Xxxxxxxx with the registration rights set forth in this Agreement;
and
WHEREAS, Xxxxxxxx has acquired, either for his own account or as
third-party nominee, 6,925,858 shares (the "XXXXXXXX SHARES") of the common
stock, $.01 par value, of the Company (the "COMMON STOCK").
NOW, THEREFORE, in consideration of the foregoing premise and the
mutual undertakings and covenants made herein, and for such other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement hereby agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time after the Effective
Date, Xxxxxxxx (or a Permitted Transferee) may, in accordance herewith, request
registration under the Securities Act (as defined in Section 9) of all or any
portion of his Registrable Securities (as defined in Section 9) on Form S-1 or
any similar long-form registration ("LONG-FORM REGISTRATIONS"), or on Form S-2
or S-3 (including pursuant to Rule 415 under the Securities Act) or any similar
short-form registration ("SHORT-FORM REGISTRATIONS"), if available. All
registrations requested pursuant to this Section 1(a) are referred to herein as
"DEMAND REGISTRATIONS." Each request for a Demand Registration shall specify the
approximate number of Registrable Securities requested to be registered and the
anticipated per share price range for such offering.
(b) Long-Form Registrations. Each holder of Registrable
Securities shall be entitled to request one Long-Form Registration in which the
Company shall pay all Registration Expenses (as defined in Section 5). A
registration shall not count as one of the permitted Long-Form Registrations
until it has become effective. If the requesting holder is unable to register
and sell at least 90% of his Registrable Securities requested to be included in
the first Long-Form Registration requested by him, he shall be entitled to a
second Long-Form Registration, provided that such second Long-Form Registration
may not be requested within six months of the effectiveness of the most recent
Long-Form Registration requested by he or any other holder of Registrable
Securities. The Company shall pay all Registration Expenses in connection with
any registration initiated as a Company-paid Long-Form Registration whether or
not it has become effective and whether or not such registration has counted as
one of the permitted Company-paid Long-Form Registrations. All Long-Form
Registrations shall be underwritten registrations.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section 1(b), each holder of Registrable
Securities shall be entitled to request an unlimited number of Short-Form
Registrations in which the Company shall pay all
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Registration Expenses, provided that the aggregate gross proceeds to be received
by the requesting holder, holders of Registrable Securities, or other securities
exercising their "piggyback" rights granted by the Company either herein or
elsewhere in any such requested Short-Form Registration must exceed $5,000,000.
Demand Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form. The Company shall use its best
efforts to make Short-Form Registrations on Form S-3 available for the sale of
the Registrable Securities. If the Company, pursuant to the request of any
holder of Registrable Securities, is qualified to and has filed with the
Securities Exchange Commission a registration statement under the Securities Act
on Form S-3 pursuant to Rule 415 under the Securities Act (the "REQUIRED
REGISTRATION"), then the Company shall use its best efforts to cause the
Required Registration to be declared effective under the Securities Act as soon
as practicable after filing, and, once effective, the Company shall cause such
Required Registration to remain effective for a period ending on the earlier of
(i) the date on which all Registrable Securities have been sold pursuant to the
Required Registration, or (ii) the date as of which the holder(s) of Registrable
Securities (assuming such holder(s) are affiliates of the Company) are able to
sell all of the Registrable Securities then held by them within a ninety-day
period in compliance with Rule 144 under the Securities Act.
(d) Priority on Demand Registrations. The Company shall not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration, such consent not to be
unreasonably withheld. If a Demand Registration is an underwritten offering and
the managing underwriters advise the Company in writing that, in their opinion,
the number of Registrable Securities and, if permitted hereunder, other
securities requested to be included in such offering exceeds the number of
securities, which can be sold in an orderly manner in such offering within a
price range acceptable to the requesting holder, then the Company shall include
in such registration, prior to the inclusion of any securities which are not
Registrable Securities, (i) first, the Registrable Securities requested to be
included in such registration by the requesting holder, (ii) second, the other
Registrable Securities requested to be included in such registration, pro rata,
among the holders of such Registrable Securities on the basis of the number of
shares owned by each such holder, and (iii) the other securities requested to be
included in such registration.
(e) Restrictions on Demand Registrations. The Company shall
not be obligated to effect any Demand Registration unless holders of at least
2,000,000 shares of Registrable Securities have requested such Demand
Registration. The Company shall not be obligated to effect any Demand
Registration within 120 days after the effective date of a previous Demand
Registration or a previous registration in which the holders of Registrable
Securities were given piggyback rights pursuant to Section 2 and in which the
reduction, if any, in the number of Registrable Securities requested to be
included therein was not greater than 25%. The Company may postpone for up to
180 days the filing or the effectiveness of a registration statement for a
Demand Registration if the Company, in good faith, concludes that such Demand
Registration would reasonably be expected to have a material adverse effect on
any proposal or plan by the Company or any of its Subsidiaries to acquire
financing, engage in any acquisition of assets (other than in the ordinary
course of business), or engage in any merger, consolidation, tender offer,
reorganization, or similar transaction; provided that, in such event, the
requesting holder shall be entitled to withdraw such request and the Company
shall pay all
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Registration Expenses in connection with such registration. The Company may
delay a Demand Registration hereunder only once in any calendar year.
(f) Selection of Underwriters. The Company shall have the
right to select the investment banker(s) and manager(s) to administer the
offering, subject to the consent of Xxxxxxxx, which consent shall not be
unreasonably withheld.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to
register any of its securities (including any proposed registration of the
Company's securities by any third party) under the Securities Act (other than in
connection with registrations on form X-0, X-0 or any successor or similar
forms) and the registration form to be used may be used for the registration of
Registrable Securities, the Company shall give prompt written notice (and in any
event within ten business days after its receipt of notice of any exercise of
demand registration rights pursuant to this or any other Agreement) to the
holders of Registrable Securities of its intention to effect such a
registration, and shall include in such registration all Registrable Securities
with respect to which the Company has received written requests for inclusion
therein (a "PIGGYBACK REGISTRATION"), within 15 days after the receipt of the
Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the
holders of the Registrable Securities shall be paid by the Company in all
Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that, in their
opinion, the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering
within a price range acceptable to the Company, then the Company shall include
in such registration (i) first, the securities the Company proposes to sell, and
(ii) second, the Registrable Securities requested to be included in such
registration, pro rata, among the holders of such Registrable Securities on the
basis of the number of shares owned by each such holder, and (iii) the other
securities requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities other than the holders of the Registrable Securities
(it being understood that secondary registrations on behalf of holders of
Registrable Securities are addressed in Section 1 above rather than this Section
2(d)), and the managing underwriters advise the Company in writing that, in
their opinion, the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable any requesting holder of the
Registrable Securities, then the Company shall include in such registration (i)
first, the securities requested to be included therein by the holders requesting
such registration and (ii) second, the Registrable Securities requested to be
included in such registration by the holders of the Registrable Securities and
the other securities requested to be included in such registration, pro rata, on
the basis of the number of shares owned by each such holder.
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(e) Selection of Underwriters. The Company shall have the
right to select the investment banker(s) and manager(s) to administer the
offering.
3. Holdback Agreements. The Company (i) shall not effect any public
sale or distribution of its equity securities, or any securities, options, or
rights convertible into or exchangeable or exercisable for such securities,
during the seven days prior to and during the 180-day period beginning on the
effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such underwritten registration or
pursuant to registrations on Form S-4 or Form S-8 or any successor form), unless
the underwriters managing the registered public offering otherwise agree, and
(ii) to the extent not inconsistent with applicable law, shall cause each holder
of its equity securities, or any securities convertible into or exchangeable or
exercisable for equity securities, purchased from the Company at any time after
the date of this Agreement (other than in a registered public offering) to agree
not to effect any public sale or distribution (including sales pursuant to Rule
144) of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the underwriters
managing the registered public offering otherwise agree.
4. Registration Procedures. Whenever a holder of Registrable Securities
has requested that any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its best efforts to effect the registration and
the sale of such Registrable Securities in accordance with the intended method
of disposition thereof, and pursuant thereto, the Company shall, as
expeditiously as possible:
(a) prepare and, within 60 days after the end of the period
within which requests for registration may be given to the Company (provided
that the Company shall have an extension for any delay caused solely by any
holder of Registrable Securities or his representatives or counsel), file with
the Securities and Exchange Commission a registration statement with respect to
such Registrable Securities and use its best efforts to cause such registration
statement to become effective (provided that, before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
shall furnish to counsel for each holder of Registrable Securities to be
included in such registration copies of all such documents proposed to be filed,
which documents shall be subject to the review and comment of counsel for same);
(b) notify in writing each holder of Registrable Securities of
the effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than 180 days (or, if such registration statement relates to an
underwritten offering, such longer period (up to one year) as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or dealer) and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the sellers thereof set
forth in such registration statement;
(c) furnish to each seller of Registrable Securities such
number of copies of such registration statement, each amendment and supplement
thereto, the prospectus included in
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such registration statement (including each preliminary prospectus), and such
other documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(d) use its best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
of Registrable Securities to consummate the disposition in such jurisdictions of
the Registrable Securities owned by such seller of Registrable Securities
(provided that the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this Section 4(d), (ii) subject itself to taxation in any such
jurisdiction, or (iii) consent to general service of process in any such
jurisdiction);
(e) promptly notify in writing each seller of such Registrable
Securities, at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, 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 fact necessary to make the statements
therein not misleading in light of the circumstances under which they were made,
and, at the request of any holder of the Registrable Securities covered by such
registration statement, the Company shall promptly prepare and furnish to each
such seller a reasonable number of copies of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading in light of the circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
(g) make available for inspection by any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant, or other agent retained by any such underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees, and independent
accountants to supply all information reasonably requested by any such
underwriter, attorney, accountant, or agent in connection with such registration
statement and assist and, at the request of any participating underwriter, use
reasonable best efforts to cause such officers or directors to participate in
presentations to prospective purchasers;
(h) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any equity securities included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order;
(i) use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other non-foreign governmental agencies or authorities as may be necessary to
enable the sellers thereof to consummate the disposition of such Registrable
Securities;
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(j) obtain one or more cold comfort letters, dated the
effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwriting agreement), from the Company's independent public accountants
in customary form and covering such matters of the type customarily covered by
cold comfort letters as the holders of a majority of the Registrable Securities
being sold in such registered offering reasonably request (provided that such
Registrable Securities constitute at least 30% of the securities covered by such
registration statement); and
(k) provide a legal opinion of the Company's outside counsel,
dated the effective date of such registration statement (or, if such
registration includes an underwritten public offering, dated the date of the
closing under the underwriting agreement), with respect to the registration
statement, each amendment and supplement thereto, the prospectus included
therein (including the preliminary prospectus) and such other documents relating
thereto in customary form and covering such matters of the type customarily
covered by legal opinions of such nature.
5. Registration Expenses.
(a) Subject to Section 5(b) below, all expenses incident to
the Company's performance of or compliance with this Agreement, including all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, travel expenses, filing expenses, messenger
and delivery expenses, fees and disbursements of custodians, and fees and
disbursements of counsel for the Company, and fees and disbursements of all
independent certified public accountants, underwriters including, if necessary,
a "qualified independent underwriter" within the meaning of the rules of the
National Association of Securities Dealers, Inc. (in each case, excluding
discounts and commissions), and other Persons (as defined in Section 9) retained
by the Company or by holders of Registrable Securities or their affiliates on
behalf of the Company (all such expenses being herein called "REGISTRATION
EXPENSES"), shall be borne as provided in this Agreement, except that the
Company shall, in any event, pay its internal expenses (including all salaries
and expenses of its officers and employees performing legal or accounting
duties), the expense of any annual audit or quarterly review, the expense of any
liability insurance, and the expenses and fees for listing the securities to be
registered on each securities exchange on which similar securities issued by the
Company are then listed or on the NASD automated quotation system (or any
successor or similar system).
(b) In connection with each Demand Registration and each
Piggyback Registration, the holders of Registrable Securities included in such
registration shall be responsible for all fees and disbursements of any counsel
employed by same.
(c) To the extent Registration Expenses are not required to be
paid by the Company, each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
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6. Indemnification.
(a) The Company agrees to indemnify and hold harmless, to the
fullest extent permitted by law, each holder of Registrable Securities, its
officers, directors, agents, and employees, and each Person who controls such
holder (within the meaning of the Securities Act) against all losses, claims,
damages, liabilities, and expenses (or actions or proceedings, whether commenced
or threatened, in respect thereof), whether joint and several or several,
together with reasonable costs and expenses (including reasonable attorney's
fees) to which any such indemnified party may become subject under the
Securities Act or otherwise (collectively, "LOSSES") caused by, resulting from,
arising out of, based upon, or relating to any untrue or alleged untrue
statement of material fact contained in (i) (A) any registration statement,
prospectus or preliminary prospectus, or any amendment thereof or supplement
thereto or (B) any application or other document or communication (in this
Section 6, collectively called an "application") executed by or on behalf of the
Company or based upon written information furnished by or on behalf of the
Company filed in any jurisdiction in order to qualify any securities covered by
such registration under the "blue sky" or securities laws thereof or (ii) any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and the Company will
reimburse such holder and each such director, officer, and controlling Person
for any legal or any other expenses incurred by them in connection with
investigating or defending any such Losses; provided that the Company shall not
be liable in any such case to the extent that any such Losses result from, arise
out of, are based upon, or relate to an untrue statement or alleged untrue
statement, or omission or alleged omission, made in such registration statement,
any such prospectus, or preliminary prospectus or any amendment or supplement
thereto, or in any application, in reliance upon, and in conformity with, any
information furnished to the Company by any holder for use therein or by such
holder's failure to deliver a copy of the registration statement or prospectus
or any amendments or supplements thereto after the Company has furnished such
holder with a sufficient number of copies of the same.
(b) In connection with any registration statement in which a
holder of Registrable Securities is participating, each such holder will furnish
to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the fullest extent permitted by law, shall severally and
not jointly indemnify and hold harmless the other holders of Registrable
Securities and the Company, and their respective officers, directors, agents,
and employees, and each other Person who controls the Company (within the
meaning of the Securities Act) against any Losses caused by, resulting from,
arising out of, based upon, or relating to (i) any untrue or alleged untrue
statement of material fact contained in the registration statement, prospectus
or preliminary prospectus, or any amendment thereof or supplement thereto or in
any application, or (ii) any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
made, or used to make an untrue statement or omission, in such registration
statement, any such prospectus or preliminary prospectus or any amendment or
supplement thereto, or in any application in reliance upon and in conformity
with information prepared and furnished to the Company by such holder expressly
for use therein, and such holder will reimburse the Company and each such other
indemnified party for any legal or any other expenses incurred by them in
connection with investigating or defending any such Losses;
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provided that the obligation to indemnify will be individual, not joint and
several, for each holder.
(c) Any Person entitled to indemnification hereunder will (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give prompt
notice shall not impair any Person's right to indemnification hereunder to the
extent such failure has not prejudiced the indemnifying party) and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
then the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
will not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnification provided for under this Agreement
shall be in addition to any other rights to indemnification or contribution
which any indemnified party may have pursuant to law or contract, and will
remain in full force and effect regardless of any investigation made or omitted
by or on behalf of the indemnified party or any officer, director, or
controlling Person of such indemnified party and shall survive the transfer of
securities.
7. Participation in Underwritten Registrations.
(a) No Person may participate in any underwritten registration
hereunder unless such Person (i) agrees to sell such Person's securities on the
basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including pursuant to
the terms of any over-allotment or "green shoe" option requested by the managing
underwriter(s), provided that no holder of Registrable Securities will be
required to sell more than the number of Registrable Securities that such holder
has requested the Company to include in any registration) and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements, and other documents reasonably required under the terms of such
underwriting arrangements; provided that no holder of Registrable Securities
included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters (other than
representations and warranties regarding such holder and such holder's intended
method of distribution) or to undertake any indemnification obligations to the
Company or the underwriters with respect thereto, except as otherwise provided
in Section 6 hereof.
(b) Each Person that is participating in any registration
hereunder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(e) above, such Person
will immediately discontinue the disposition of its Registrable Securities
pursuant to the registration statement until such Person's receipt of the copies
of a supplemented or amended prospectus as contemplated by Section 4(e). In the
event the Company shall give any such notice, the applicable time period
mentioned in Section 4(b)
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during which a Registration Statement is to remain effective shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to this Section 7(b) to and including the date
when each seller of a Registrable Security covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 4(e).
8. Permitted Transferees. The rights granted hereunder which
attach to the Registrable Securities shall be assignable by Xxxxxxxx, and
provided each such assignee (each, a "PERMITTED TRANSFEREE") becomes a party to
this Agreement by executing a counterpart signature page hereto, he shall
succeed to all of the rights and obligations of a holder of the Registrable
Securities under this Agreement, and, upon such execution, such person shall for
all purposes hereof be a holder of Registrable Securities and party to this
Agreement.
9. Definitions.
(a) "REGISTRABLE SECURITIES" means (i) the Xxxxxxxx Shares or
any Common Stock issued or issuable with respect to the Xxxxxxxx Shares by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization; and
(ii) any shares of Common Stock held by any Permitted Transferee holding
securities described in clause (i) above. As to any particular Registrable
Securities, such securities shall cease to be Registrable Securities when they
(i) have been distributed to the public pursuant to an offering registered under
the Securities Act or sold to the public through a broker, dealer, or market
maker in compliance with Rule 144 under the Securities Act (or any similar rule
then in force), (ii) have been effectively registered under a registration
statement, or (iii) have been repurchased by the Company.
(b) "PERSON" means a natural person, a company or other
entity, or a governmental subdivision or agency.
(c) "SECURITIES ACT" means the Securities Act of 1933, as
amended, or any successor federal law then in force, together with all rules and
regulations promulgated thereunder.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not
hereafter enter into any agreement with respect to its securities, which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
(b) Adjustments Affecting Registrable Securities. The Company
shall not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration (including
effecting a stock split or a combination of shares).
(c) Remedies. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically to recover
damages caused by
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reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party may in its sole discretion apply to any court of
law or equity of competent jurisdiction (without posting any bond or other
security) for specific performance and for other injunctive relief in order to
enforce or prevent violation of the provisions of this Agreement. Nothing
contained in this Agreement shall be construed to confer upon any Person who is
not a signatory hereto any rights or benefits, whether as a third-party
beneficiary or otherwise.
(d) Amendments and Waivers. Except as otherwise provided
herein, no modification, amendment, or waiver of any provision of this Agreement
shall be effective against the Company or the holders of Registrable Securities
unless such modification, amendment, or waiver is approved in writing by the
Company and the holders of at least 80% of the Registrable Securities then in
existence. No failure by any party to insist upon the strict performance of any
covenant, duty, agreement, or condition of this Agreement or to exercise any
right or remedy consequent upon a breach thereof shall constitute a waiver of
any such breach or any other covenant, duty, agreement, or condition.
(e) Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities. Notwithstanding
the foregoing, in order to obtain the benefit of this Agreement, any subsequent
holder of Registrable Securities must execute a counterpart to this Agreement,
thereby agreeing to be bound by the terms hereof.
(e) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(f) Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, including by facsimile signature,
any one of which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same Agreement.
(g) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. Whenever required by the context, any pronoun used in
this Agreement shall include the corresponding masculine, feminine, or neuter
forms, and the singular form of nouns, pronouns, and verbs shall include the
plural and vice versa. The use of the word "including" in this Agreement shall
be, in each case, by way of example and without limitation. The use of the words
"or," "either," and "any" shall not be exclusive. Reference to any agreement,
document, or instrument means such agreement, document, or instrument as amended
or otherwise modified from time to time in accordance with the terms thereof,
and if applicable hereof.
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(h) Governing Law. All issues and questions concerning the
construction, validity, interpretation, and enforcement (including issues and
questions concerning the relative rights of the Company and its stockholders) of
this Agreement and the exhibits and schedules hereto shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether of
the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Delaware.
Venue for any legal action arising hereunder shall be exclusively in Xxxxxx
County, Texas.
(i) Notices. All notices, demands, or other communications to
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable overnight
courier service (charges prepaid) or mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such notices,
demands, and other communications shall be sent to each holder of Registrable
Securities at the addresses indicated on the Schedule of Holders and to the
Company at the address of its corporate headquarters or to such other address or
to the attention of such other person as the recipient party has specified by
prior written notice to the sending party.
(j) Entire Agreement. This Agreement, those documents
expressly referred to herein and other documents of even date herewith embody
the complete agreement and understanding among the parties and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
(k) No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
(l) Waiver of Right to Jury Trial. Each Party hereto expressly
waives any and all rights to a trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort, or otherwise) arising out of or
relating to this Agreement or any of the transactions contemplated hereby.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have executed this Registration
Agreement as of the date first written above.
U S INDUSTRIAL SERVICES, INC.
By:
---------------------------------------------
Name: Xxxxx X. Xxxxxxxx
--------------------------------------
Its: President and Chief Executive Officer
-----------------------------------------
-----------------------------------
Xxxxx X. Xxxxxxxx
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SCHEDULE OF HOLDERS
HOLDERS: REGISTRABLE SECURITIES HELD
Xxxxx X. Xxxxxxxx 6,925,858
00000 Xxxxx Xxxx
Xxxxxxx, Xxxxx 00000
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