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EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
September 25, 1997, is entered into by and among XXXXX ENTERPRISES,
INCORPORATED, a Florida corporation ("SEi"), and XXXX XXXXXXX, an individual
residing in the Federal Republic of Germany (the "Seller").
WHEREAS, this Agreement is made in connection with the sale by the
Seller of all the outstanding capital interests (the "Quotas") of TAS Xxxx
Xxxxxxx GmbH Telemarketing und Kommunikationskonzepte, a limited liability
company organized under the laws of the Federal Republic of Germany (the
"Company"), to Xxxxx Enterprises GmbH, a limited liability company organized
under the laws of the Federal Republic of Germany and a wholly-owned subsidiary
of SEi (the "Buyer"), pursuant to the Acquisition Agreement dated September 25,
1997 by and among SEi, the Buyer and the Seller (the "Acquisition Agreement");
WHEREAS, in order to induce the Seller to enter into the Acquisition
Agreement, SEi has agreed to provide the Seller with the registration rights
set forth in this Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition
to the sale of the Quotas to the Buyer.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. DEFINITIONS.
Closing: The closing of the transactions contemplated by the
Acquisition Agreement.
Common Stock: The common stock, par value $.01 per share, of SEi.
Date of Issuance: The Closing Date (as defined in the Acquisition
Agreement).
Holder: The Seller so long as the Seller owns any Registrable
Securities and any of the Seller's respective successors and assigns who
acquire rights in accordance with this Agreement with respect to Registrable
Securities directly or indirectly from the Seller, or from such other successor
and assign, and who agree in writing, in form and substance satisfactory to
SEi, to be bound hereby.
Registration Expenses: Any and all reasonable expenses actually
incurred incident to performance of or compliance with this Agreement other
than underwriting discounts and
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commissions and transfer taxes, if any, but including up to $5,000 in the
aggregate of the legal expenses of the Holders incurred with respect to the
registration of Registrable Securities.
Registrable Securities: The shares constituting the Subject Common
Stock; provided, however, that specific shares of the Subject Common Stock
shall not be Registrable Securities if and to the extent that (i) a
Registration Statement with respect to such shares of Subject Common Stock
shall have been declared effective under the Securities Act and such shares of
Subject Common Stock shall have been disposed of in accordance with such
Registration Statement, (ii) such shares of Subject Common Stock shall have
been distributed to the public in accordance with Rule 144 (or any successor
provision) promulgated under the Securities Act, (iii) such shares of Subject
Common Stock shall have been otherwise transferred in accordance with the
provisions of this Agreement and the Acquisition Agreement, and new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by SEi, or (iv) the transfer of such shares of Subject
Common Stock is prohibited by Section 4.28(f) of the Acquisition Agreement.
Registration Statement: Any registration statement of SEi filed with
the SEC which provides for the registration for sale or other transfer of the
Registrable Securities (in whole or in part), including the prospectus included
therein, all amendments and any supplements to such Registration Statement,
including post-effective amendments, all exhibits and all material incorporated
by reference in such Registration Statement.
SEC: The United States Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended from time to
time, or any successor statute, and the rules and regulations of the SEC
thereunder, all as in effect at the time.
Subject Common Stock: The shares of Common Stock issued to the Seller
pursuant to the Acquisition Agreement and any additional shares of Common Stock
or shares of any other security of SEi issued in respect of such shares, by way
of stock splits, stock dividends, or otherwise.
2. REGISTRATION UNDER THE SECURITIES ACT
(a) REGISTRATION ON DEMAND.
(i) Request for Registration. At any time during the
period beginning on the sixtieth day after the Date of Issuance and ending on
the first anniversary of the Date of Issuance and subject to Sections 2(c) and
2(d), the Holder or Holders of a majority of the Registrable Securities then
outstanding may, by written notice to SEi, require SEi to effect the
registration under the Securities Act of Registrable Securities (a "Demand
Registration").
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The notice requesting a Demand Registration shall specify the method of
distribution of the Registrable Securities to be covered. Upon receipt of such
notice, SEi will promptly give written notice of such requested registration
(a "Section 2(a) Notice") to any and all other Holders who hold of record any
Registrable Securities and thereupon will file a Registration Statement in form
and scope sufficient to permit, under the Securities Act and any other
applicable law and regulations, the Registrable Securities to be registered in
accordance with the methods of distribution specified in such requests (the
"Demand Registration Statement"). SEi shall use its best efforts to have the
Demand Registration Statement declared effective as promptly as practicable
(but in no event later than 120 days after such request) and to keep the Demand
Registration Statement continuously effective until the first anniversary of
the Date of Issuance or, if shorter, until such time as all the Registrable
Securities covered by the Demand Registration Statement have been sold pursuant
thereto. The Demand Registration Statement shall provide for the registration
under the Securities Act of:
(A) the Registrable Securities which SEi has been
so requested to register by such Holder or Holders, and
(B) all other Registrable Securities which SEi
has been requested to register by any other Holders of Registrable Securities
by written request (specifying the intended method of distribution thereof)
given to SEi within 15 days after the giving of the Section 2(a) Notice.
SEi may on one occasion only postpone filing a Demand Registration Statement
under this Section 2(a) for a reasonable period (not in excess of 90 days) if
in its reasonable judgment such filing would require the disclosure of material
information that SEi has a bona fide business purpose for preserving as
confidential. SEi shall be obligated to effect a Demand Registration pursuant
to this Section 2(a) only once.
(ii) Registration Statement Form. Registrations under
this Section 2(a) shall be on such appropriate registration forms of the SEC as
shall be selected by SEi, be reasonably acceptable to the Holder or Holders who
are the registered holders of at least a majority of the Registrable Securities
to be registered pursuant to this Section 2(a) and permit the disposition of
Registrable Securities in accordance with the intended method or methods of
disposition specified in the requests for registration relating thereto.
(iii) Expenses. SEi shall pay all Registration Expenses in
connection with the registration pursuant to this Section 2(a) and the Holder
or Holders requesting registration pursuant to this Section 2(a) shall pay all
underwriting discounts and commissions, any transfer taxes and any expenses of
counsel for any Holder or Holders not expressly included in Registration
Expenses relating to the sale or disposition of such Holder's Registrable
Securities pursuant to such Registration Statement.
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(iv) Effective Registration Statement. A registration
requested pursuant to Section 2(a) hereof will not be deemed to have been
effected unless it has been declared effective by the SEC and not less than
eighty-five percent (85%) of the Registrable Securities covered thereby are
sold in accordance with the terms and conditions set forth therein; provided,
however, that if, after it has been declared effective, the offering of
Registrable Securities pursuant to such registration is interfered with by a
stop order, injunction or other order or requirement of the SEC or any other
governmental agency or court, such registration will be deemed not to have
become effective or to have been effected.
(v) Selection of Underwriter. If any of the Registrable
Securities covered by the Demand Registration are to be sold in an underwritten
offering, SEi shall select the underwriter or underwriters in its sole
discretion. SEi and the Holders will take all reasonable steps to cooperate
with the underwriter or underwriters so selected to conduct the offering in a
manner customary for such underwritten offering, including without limitation
entering into an underwriting agreement with such underwriters.
(vi) Registration Not Required. Notwithstanding the other
provisions of Section 2(a), SEi shall not be required to effect a Demand
Registration under this Section 2(a):
(A) after SEi has delivered notice of a Piggyback
Registration pursuant to Section 2(b) and for so long as such Piggyback
Registration is pending;
(B) for Registrable Securities owned by any
Holder that did not, by delivering the requisite notice, exercise its right to
register such Registrable Securities in a Piggyback Registration when so
offered by SEi under Section 2(b); or
(C) if the Demand Registration covers Registrable
Securities with an aggregate market value of less than $250,000 or which
represent less than a majority of the Registrable Securities then outstanding.
(b) PIGGYBACK REGISTRATIONS.
(i) Right to Piggyback. Subject to Sections 2(c) and
2(d) hereof, if at any time prior to the first anniversary of the Date of
Issuance SEi proposes to file a Registration Statement under the Securities Act
with respect to any offering of the Common Stock by SEi for its own account
and/or on behalf of any of its security holders (other than (i) a registration
on Form S-8 or S-4 or any successor form, (ii) a registration relating to a
transaction subject to Rule 145 under the Securities Act, or (iii) any
registration of securities as it relates to an offering and sale to management
of SEi pursuant to any employee stock plan or other employee benefit plan
arrangement) then, as soon as practicable (but in no event less than twenty
(20) days prior to the proposed date of filing such Registration Statement),
SEi shall give written notice of such proposed filing to the Holders, and such
notice shall offer the Holders the opportunity to register such number of
Registrable Securities as the Holders may request (a "Piggyback Registration").
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Subject to subsection 2(d), SEi shall include in such Registration Statement
all Registrable Securities requested within fifteen (15) days after the
receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by the Holders to be included in the
registration for such offering pursuant to a Piggyback Registration), provided,
however, that if, at any time after giving written notice of its intention to
register Common Stock and prior to the effective date of the Registration
Statement filed in connection with such registration, SEi shall determine for
any reason not to register or to delay registration of the Common Stock to be
registered for sale by SEi, SEi may, at its election, give written notice of
such determination to the Holder of Registrable Securities and, thereupon, (i)
in the case of a determination not to register, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration Expenses in
connection therewith), and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable
Securities, for the same period as the delay in registering such Common Stock.
(ii) Piggyback Expenses. The Registration Expenses of the
Holders of Registrable Securities will be paid by SEi in a Piggyback
Registration. Underwriting discounts and commissions and transfer taxes, if
any, incurred with respect to the Registrable Securities shall be borne by the
Seller.
(c) UNDERWRITER'S CUTBACK. Notwithstanding Sections 2(a) and
2(b), if a Demand Registration or a Piggyback Registration is an underwritten
offering being made on behalf of SEi, and the managing underwriter or
underwriters advise SEi in writing that in their opinion the number of shares
of Common Stock requested to be included in such registration exceeds the
number which can be sold in such offering or would be reasonably likely to
adversely affect the price or distribution of the Common Stock offered in such
offering or the timing thereof, then the shares of Common Stock to be included
in such registration shall be the number of shares of Common Stock, adjusted on
a pro rata basis, that, in the opinion of such underwriter or underwriters, can
be sold without an adverse effect on the price, timing or distribution of the
Common Stock to be included. In an underwritten demand registration, the
number of shares to be sold by SEi or other selling shareholders shall be
reduced in accordance with such opinion and, if necessary, eliminated, before
there shall be any reduction in the number of shares to be sold by Holders.
(d) REGISTRATION NOT REQUIRED. Notwithstanding Sections 2(a) and
2(b), in the event the Holder or Holders request that any of the Registrable
Securities covered by this Agreement be sold in an underwritten offering or
otherwise request registration pursuant to this Agreement, SEi shall not be
required to take the action required or contemplated herein to accommodate or
permit such underwritten offering or other registration of the shares subject
to the request if SEi has provided to the requesting Holders an unqualified
opinion of counsel knowledgeable in Securities Act matters to the effect that
all of such Registrable Securities may immediately be sold by such Holders in a
brokered transaction under Rule 144 during any ninety (90) day period without
registration under the Securities Act and applicable state securities laws.
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3. HOLD-BACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY THE HOLDERS. In the event
Registrable Securities are covered by a Registration Statement filed pursuant
to Section 2 of this Agreement, the Holders agree not to effect any public sale
or distribution of Common Stock, including a sale pursuant to Rule 144 under
the Securities Act, during the 15-day period prior to, and during the 90-day
period beginning on, the effective date of such Registration Statement (except
pursuant to such Registration Statement), if, and then only to the extent, so
requested in writing by SEi, in the case of a non-underwritten public
offering, or by the managing underwriter or underwriters, in the case of an
underwritten offering.
(b) RESTRICTIONS ON PUBLIC SECURITY SALE BY SEI. SEi agrees not
to make any filing to register and agrees not to effect or offer to effect any
public sale or distribution of or purchase any security (other than any such
sale or distribution of such Common Stock in connection with any transaction
subject to Rule 145 under the Securities Act or in connection with offers and
sales to employees under employee benefit plans) during the 15-day period prior
to, and during the 90-day period beginning on, the effective date of any
Registration Statement filed pursuant to Section 2(a) hereof.
4. REGISTRATION PROCEDURES. In connection with SEi's obligations under
Section 2 hereof, SEi shall use it best efforts to effect or cause to be
effected the registration of the Registrable Securities under the Securities
Act to permit offers and sales in accordance with the intended method or
methods of distribution thereof. SEi may require the Holders to use their best
efforts to furnish to SEi such information regarding the distribution of the
Registrable Securities as SEi may from time to time reasonably request in
writing. SEi agrees to obtain customary services and materials from its
counsel and accountants and to perform all requirements in connection with any
offering required by Section 2, including without limitation such customary
opinions of counsel and "cold comfort" letters from independent certified
public accountants as are reasonably requested by any underwriters. SEi
further agrees to (i) furnish Holders for whom shares are registered such
number of copies of a prospectus and preliminary prospectus, if applicable, as
such Holders may reasonably request; (ii) enter into customary agreements,
including an underwriting agreement (which shall include the indemnification
and contribution provisions under Section 5 or similar provisions), and to make
customary representations to any underwriters with respect to the registration
statement; (iii) make available to any underwriters its offices and records as
reasonably requested for the purpose of allowing the underwriters to conduct a
customary "due diligence" investigation; and (iv) list the shares registered on
such Holder's or Holders' behalf on the exchange or quotation system on which
the SEi Common Stock is at the time listed.
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5. INDEMNIFICATION.
(a) SEi agrees to indemnify, to the extent permitted by law, each
Holder of Registrable Securities and (as applicable) its officers and directors
and each person or entity who controls such Holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, (in the case of a prospectus, always in
light of the circumstances under which the statements are made) except insofar
as the same are caused by or contained in any information furnished in writing
to SEi by such Holder or its affiliate expressly 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 SEi has furnished such Holder
with a sufficient number of copies of the same. In connection with an
underwritten offering, SEi will indemnify such underwriters, their officers and
directors and each person or entity who controls such underwriters (within the
meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the Holders of Registrable Securities.
(b) In connection with any registration statement in which a
Holder of Registrable Securities is participating, each such Holder will
furnish to SEi in writing such information and affidavits as SEi reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify SEi, its
directors and officers and each person or entity and entity who controls SEi
(within the meaning of the Securities Act) against any losses, claims, damages,
liabilities and expenses resulting from 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 any
omission or alleged omission of a material fact required to be stated therein
or necessary to make the statements therein not misleading, (in the case of a
prospectus, always in light of the circumstances under which the statements are
made) but only to the extent that such untrue statement or omission is
contained in any information or affidavit so furnished in writing by such
Holder or its affiliate; provided that the obligation to indemnify will be
several, not joint and several, among such Holders of Registrable Securities
and the liability of each such Holder of Registrable Securities in the event
that more than one Holder is liable will be in proportion to and limited to the
net amount received by such Holder from the sale of Registrable Securities
pursuant to such registration statement.
(c) Any person or entity 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, however, that failure to
give such notice will not prejudice such person's or entity's right to
indemnification from the indemnifying party, except as to any losses suffered
by such person or entity which are attributable to such person's or entity's
failure to promptly give such notice to such indemnifying party and (ii) unless
in such indemnified party's
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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. 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 will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
or entity of such indemnified party and will survive the transfer of securities
and the termination of this Agreement. SEi also agrees to make such provisions
as are reasonably requested by any indemnified party for contribution to such
party in the event SEi's indemnification is unavailable or unenforceable for
any reason.
6. REGULATION S OFFERING. The Seller agree that none of the Registrable
Securities will be offered for sale pursuant to Regulation S (as promulgated by
the SEC) without the prior written consent of SEi.
7. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. SEi has not entered into and will
not on or after the date of this Agreement enter into any agreement with
respect to the Common Stock which is inconsistent with the rights granted in
this Agreement to the Seller or which otherwise conflicts with the provisions
hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless (i) SEi has obtained the written consent of the
Holders to such amendment, modification, or supplement or (ii) SEi has obtained
from each Holder a waiver or consent to such departure.
(c) NOTICES. All notices, requests, demands and other
communications (collectively, "Notices") that are required or may be given
under this Agreement shall be in writing. All Notices shall be deemed to have
been duly given or made: if by hand, immediately upon delivery; if by
telecopier or similar device, immediately upon sending, provided notice is sent
on a business day during the hours of 9:00 a.m. and 6:00 p.m. at the location
of the party receiving the Notice, but if not, then immediately upon the
beginning of the first business day after being sent; if by FedEx, Express Mail
or any other reputable overnight delivery service, three business days after
being placed in the exclusive custody and control of said courier; and if
mailed by
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certified mail, return receipt requested, ten business days after mailing.
Notwithstanding the foregoing, with respect to any Notice given or made by
telecopier or similar device, such Notice shall not be effective unless and
until (i) the telecopier or similar advice being used prints a written
confirmation of the successful completion of such communication by the party
sending the Notice, and (ii) a copy of such Notice is deposited in first class
mail to the appropriate address for the party to whom the Notice is sent. In
addition, notwithstanding the foregoing, a Notice of a change of address by
a party hereto shall not be effective until received by the party to whom such
Notice of a change of address is sent. All Notices are to be given or made to
the parties at the following addresses (or to such other address as either
party may designate by Notice in accordance with the provisions of this
Section):
(i) if to the Holders, at the address set forth in the
Acquisition Agreement, or at the most current address given by the Holders to
SEi by means of a notice given in accordance with the provisions of this
Section 7(c).
(ii) if to SEi, at the address set forth in the
Acquisition Agreement, or at the most current address given by SEi to the
Seller by means of a notice given in accordance with the provisions of this
Section 7(c).
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(e) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida.
(g) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(h) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective permitted 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 other permitted Holders of Registrable Securities are
also for the benefit of, and enforceable by, any subsequent permitted Holder of
Registrable Securities. The registration rights of the Holders under this
Agreement may be transferred to any transferee who lawfully acquires at least
fifteen thousand (15,000) shares of the Registrable Securities; provided,
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however, that SEi is given written notice by the Holder at the time of such
transfer stating the name and address of the transferee and identifying the
securities with respect to which the rights under this Agreement are being
assigned; and provided further, that such transferee is a person who is
reasonably satisfactory to SEi and executes an agreement in writing agreeing to
be bound by the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
XXXXX ENTERPRISES, INCORPORATED
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx,
Vice President - Finance
SELLER:
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
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