Exhibit 4.1
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF JUNE 21, 2001
BY AND AMONG
XXXXXX CORPORATION
AND
THE HOLDERS OF SECURITIES OF
XXXXXX CORPORATION
SIGNATORY HERETO
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement"), dated as of June 21,
2001, is made by and among Xxxxxx Corporation, a New York corporation (the
"Company"), the holders of equity securities of the Company signatory hereto,
whose names are set forth on the. Schedule of Security Holders attached hereto
as Exhibit A, and any other holders of Registrable Securities (as hereinafter
defined) which from time to time become bound by and subject to the terms hereof
(each, a "Holder" and collectively, the "Holders").
WITNESSETH:
WHEREAS, simultaneously with the execution of this Agreement, the Company,
Xxxxxx Industries, Inc., Pyramid Coach, Inc., Champion Trailer, Inc., United
Acquisition, Inc., U.S. Rubber Reclaiming, Inc., Obsidian Capital Partners, L.P.
("Obsidian") and Xxxxxxx X. Xxxxxx are entering into that certain Acquisition
Agreement and Plan of Reorganization, dated as of the date hereof (the
"Acquisition Agreement");
WHEREAS, in order to induce Obsidian to enter into the Acquisition
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement to Obsidian and the partners of Obsidian upon distribution of
the Registrable Securities (as defined herein) to such partners; and
WHEREAS, Obsidian has agreed to promptly distribute the Registrable
Securities received by it pursuant to the Acquisition Agreement, and certain
other Registrable Securities to be issued to Obsidian following the consummation
of the Xxxxxx Transaction (as defined herein), to the partners of Obsidian;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Definitions. The following capitalized terms have the following meanings:
"Affiliate" of any Person means a Person which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is under
common control with, such first Person.
"Agreement" shall mean this Registration Rights Agreement.
"Acquisition Agreement" shall have the meaning set forth in the recitals of
this Agreement.
"Commission" means the United States Securities and Exchange Commission or
any other United States Federal agency from time to time administering the
Securities Act.
"Common Stock" means the common stock of the Company, par value $.000l per
share, and any securities issued with respect to such Common Stock by way of a
stock dividend, stock split or similar transaction, or in connection with a
combination of shares, recapitalization, merger, consolidation or similar
transaction.
"Common Stock Equivalents" shall mean all securities convertible into or
exchangeable for, and all warrants, options and other rights exercisable for,
shares of Common Stock.
"Xxxxxx Transaction" shall mean the transactions contemplated by the
Acquisition Agreement.
"Demand Holder" shall mean any Holder, provided that such Holder owns at
least 15% of the total shares of Common Stock, including shares underlying
Common Stock Equivalents, then owned by all of the Holders of Common Stock or
Common Stock Equivalents.
"Demand Registration" shall have the meaning specified in Section 2(b).
"Distribution" shall mean any distribution by Obsidian to the Partners of
any Registrable Securities from time to time acquired by Obsidian in connection
with the Xxxxxx Transaction or otherwise.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission thereunder, all as in effect from
time to time.
"Holder or Holders" shall have the meaning set forth in the preamble of
this Agreement, it being understood that the Partners shall be deemed to be
Holders with respect to any Registrable Securities from time to time received in
connection with any Distribution of such Registrable Securities.
"Management" shall mean all employees of the Company or any of its
Subsidiaries for whom disclosure would be required under Item 402 of Regulation
S-K promulgated by the Commission.
"NASD" shall mean The National Association of Securities Dealers, Inc. and
any successor organization.
"Obsidian" shall mean Obsidian Capital Partners, L.P.
"Partners" shall mean collectively the limited partners and the general
partner of Obsidian.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust, or
unincorporated organization, or any governmental agency, officer, department,
commission, board, bureau, or instrumentality thereof.
"Piggyback Registration" shall have the meaning specified in Section 3(a)
of this Agreement.
"Preferred Stock" shall mean the shares of Series C Convertible Preferred
Stock of Xxxxxx Corporation issued to Obsidian in connection with the Xxxxxx
Transaction.
"Registrable Securities" shall mean shares of Common Stock which are owned
by any Holder (or which are issuable upon exchange, exercise or conversion of
Common Stock Equivalents) and which have not ceased to be Restricted Securities;
provided that any shares of Common Stock which cease to be Restricted Securities
solely because they have become eligible for transfer pursuant to Rule 144 (or
any similar rule then in force) will not cease to be Registrable Securities
until they have actually been sold to the public in compliance with Rule 144 (or
any similar rule then in force).
"Registration Statement" means a registration statement provided for in
Section 6 of the Securities Act under which securities are registered under the
Securities Act, together with any preliminary, final or summary prospectus
contained therein, any amendment or supplement thereto, and any document
incorporated by reference therein.
"Required Registration" shall have the meaning specified in Section 2(a).
"Restricted Securities" means (i) the Common Stock owned by any Holder and
any Common Stock issued or issuable upon exchange, conversion, or exercise of
Common Stock Equivalents owned by any Holder and (ii) any securities issued with
respect to the Common Stock referred to in (i) above by way of a stock dividend
or stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular Restricted
Securities, such securities will cease to be Restricted Securities when they
have (a) been effectively registered under the Securities Act and disposed of in
accordance with the Registration Statement covering them, (b) become eligible
for sale pursuant to Rule 144 without restriction on volume or manner as
provided in Rule 144 (or any similar provision then in force) under the
Securities Act or (c) been otherwise transferred and new certificates for them
not bearing a Securities Act legend have been delivered by the Company. Whenever
any particular shares of Common Stock cease to be Restricted Securities, the
holder thereof will be entitled to receive from the Company, without expense,
new certificates not bearing a Securities Act legend.
"Rule 144" shall mean Rule 144 as promulgated by the Commission under the
Securities Act, as amended from time to time, and any successor rule or
regulation thereto.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect from time to time.
Terms defined in the Exchange Act or the Securities Act and not otherwise
defined herein have the meanings herein as therein defined.
2. Required Registration; Demand Registration.
(a) Required Registration. The Company shall register under the Securities
Act the Registrable Securities which were acquired upon conversion of the
Preferred Stock issued to Obsidian in connection with the Xxxxxx Transaction.
The Company shall use its commercially reasonable best efforts, as soon as
reasonably practicable following the date of issuance of the Preferred Stock and
in any event on or before December 31, 2001 (unless the Holders holding at least
seventy-five percent (75%) of the Registrable Securities then held by all of the
Holders shall extend such date or otherwise agree to waive or alter the
requirements of this Section 2(a)), to (i) file with the Commission a
Registration Statement on Form S-i of the Commission (or such other form
promulgated by the Commission for which the Company qualifies and which counsel
for the Company shall deem appropriate) for the registration under the
Securities Act of the sale of the Registrable Securities acquired upon
conversion of the Preferred Stock and to effect such registration (the "Required
Registration"), and (ii) cause the Registrable Securities to be listed on a
nationally recognized United States securities exchange or quoted on the NASD
automated quotation system. In the event the Company is not able to effect the
Required Registration on or before December 31, 2001, the Company shall send a
notice to that effect, and stating the reason(s) therefor, to each of the
Holders on the first business day following such date, and every six months
thereafter until the Required Registration is complete, and shall continue to
use its commercially reasonable best efforts to effect the Required Registration
as soon as reasonably practicable after such date. For purposes of this Section
2(a) and Section 4(a)(i), the Company shall not be deemed to have used its
commercially reasonable best efforts to perform its obligations under this
Section 2(a) or Section 4(a)(i) if the failure to perform such obligations is a
result of the determination by the Company that the amount of time, effort or
expense which the Company, or any agent, professional advisor or representative
of the Company, believes would be required to fulfill such obligations,
including without limitation, any time, effort or expense required to obtain
audited financial statements of the Company or any of its subsidiaries (or any
of their respective predecessors) for a number of years sufficient to satisfy
applicable rules of the Commission with respect to the Required Registration or
a Demand Registration, as applicable, is not warranted; it being understood and
agreed that the Company shall consult at least two (2) independent accounting
firms, at least one of which shall be a "Big 5" accounting firm, in determining
whether audits of the financial statements of the Company or any of its
subsidiaries (or any of their respective predecessors) for a sufficient number
of years to satisfy the applicable rules of the Commission can be completed by
the firm in question under the circumstances, and it being further understood
and agreed that the Company shall not be deemed to have used its commercially
reasonable best efforts to fulfill its obligations under this Section 2(a) or
Section 4(a)(i) if either of such accounting firms determines that audits of the
financial statements of the Company or any of its subsidiaries (or any of their
respective predecessors) for the required number of years can be completed,
without regard to the cost thereof, but such audits are not completed within the
applicable time period.
(b) Demand Registration. Provided that the Company is not then in the
process of registering the Registrable Securities as required by Section 2(a),
each Demand Holder shall, at any time after the earlier of (i) January 1, 2002,
if the Company shall have failed to consummate the Required Registration by that
time (and such date was not extended or such requirement was not otherwise
waived or altered by the Holders holding at least seventy-five percent (75%) of
the Registrable Securities then held by all of the Holders as provided for in
Section 2(a)), or (ii) June 1, 2002, have the right, exercisable by written
notice to the Company, to request that the Company effect the registration under
the Securities Act of all or part of such Demand Holder's Registrable Securities
(a "Demand Registration").
Upon receipt of such notice, the Company shall promptly give written notice
of such Demand Registration to all Holders of Registrable Securities, and shall
use its best efforts to effect the registration (including, without limitation,
an undertaking to file post-effective amendments) under the Securities Act and
appropriate qualification under applicable blue sky or other state securities
laws of:
(i) the Registrable Securities which the Company has been requested to
register by such Demand Holder (including, without limitation, an
offering on a delayed or continuous basis pursuant to Rule 415 (or any
successor rule to similar effect) under the Securities Act), and
(ii) all other Registrable Securities which the Company has been requested
to register by the Holders thereof, by written request given to the
Company within 30 days after the giving of such written notice by the
Company,
all to the extent required to permit the disposition of the Registrable
Securities so to be registered and qualified.
Subject to the foregoing provisions and the provisions of Section 2(f), the
Company shall use its best efforts to register under the Securities Act all
Registrable Securities which the Company has been so requested to register.
(c) Selection of Underwriters. If the Demand Holder intends to distribute
the Registrable Securities covered by its request by means of an underwriting,
it shall so advise the Company as part of its request made pursuant to Section
2(b) and the Company shall include such information in the written notice
referred to in Section 2(b). The right of each Demand Holder to registration
pursuant to Section 2(b) shall be conditioned upon such Demand Holder's
participation in such underwriting and the inclusion of such Demand Holder's
Registrable Securities in the underwriting to the extent provided herein. The
underwriters of any offering pursuant to a Demand Registration shall be (i) a
lead managing underwriter (which shall be a nationally-recognized investment
banking firm) selected by the Demand Holder which requested such Demand
Registration and subject to the approval of the Company, and (ii) such
comanaging underwriters (which shall be one or more nationally-recognized
investment banking firms) selected by the Demand Holder which requested such
Demand Registration and subject to the approval of the Company.
(d) Priority in Demand Registration. If the managing underwriter advises
the Company in writing that, in its opinion, the number of Registrable
Securities requested to be included in a Demand Registration exceeds what can be
sold in such offering at a price reasonably acceptable to the Company and the
Demand Holder which requested such Demand Registration, then the Company will
include in such Demand Registration the number of Registrable Securities
requested to be included in such Demand Registration which the Company is so
advised can be sold in such offering, which shall be allocated pro rata among
the Holders participating in the Demand Registration.
If the managing underwriter advises the Company in writing that, in its
opinion, the number of Registrable Securities requested to be included in a
Demand Registration by Holders who are members of Management of the Company
should be reduced, then the Company will reduce the number of Registrable
Securities requested to be sold by such Persons on a pro rata basis.
In the event any Registrable Securities of any Demand Holders are excluded
from registration as a result of the foregoing provisions, then such Persons
shall be entitled to sell, on a pro rata basis, the excluded Registrable
Securities, prior to any other Registrable Securities, pursuant to the
underwriters' over-allotment option.
Except as provided in the last sentence of this paragraph and the preceding
paragraph, no Registrable Securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
If any Holder disapproves of the terms of the underwriting, such Person may
elect to withdraw therefrom by written notice to the Company, the underwriters
and the Demand Holder requesting such Demand Registration. The Registrable
Securities so withdrawn from such underwriting shall also be withdrawn from such
registration; provided, however, that if by the withdrawal of such Registrable
Securities a greater number of Registrable Securities held by other Holders may
be included in such registration (up to the maximum of any limitation imposed by
the underwriters), then the Company shall offer to all Holders who have included
Registrable Securities in the registration the right to include additional
Registrable Securities in the same proportion used above in determining the
underwriters' limitation.
(e) Limit on Demand Registrations. Notwithstanding any other provisions of
this Agreement to the contrary, the rights of Demand Holders to request a Demand
Registration shall be subject to the following limitations: the aggregate number
of Demand Registrations requested by all Holders shall not exceed three (3) on
Form S-1 of the Commission (or similar expanded form then in effect) if the
Company is not then eligible to use a short form of the Commission and three (3)
on Form S-3 of the Commission (or similar short form then in effect); provided,
however, a Demand Registration shall not count for the purpose of determining
the foregoing limitations (1) if the registration statement does not become
effective, unless (x) the registration statement did not become effective by
reason of the refusal to proceed by the Demand Holders requesting the Demand
Registration (other than a refusal to proceed based upon the advice of counsel
relating to a matter with respect to the Company) and (y) the Demand Holders
requesting the Demand Registration do not promptly reimburse the Company for all
registration expenses incurred by it in connection with such registration as
provided in Section 5 hereof, (2) if, after the registration statement that
relates to such registration has become effective, such registration statement
becomes subject to any stop order, injunction or any order or requirement of the
Commission or other governmental agency or court for any reason and such order,
injunction or requirement is not promptly withdrawn or lifted, or (3) if the
conditions to closing specified in the purchase agreement or underwriting
agreement entered into in connection with such registration are not satisfied,
other than by reason of some act or omission of the Demand Holders requesting
the Demand Registration.
(f) Postponement on Demand Registrations. The Company may postpone for up
to 120 days the filing or the effectiveness of a Registration Statement for a
Demand Registration, if the Board of Directors of the Company determines 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
engage in any business combination, acquisition, disposition or other strategic
transaction. In such event, the Company shall provide a certificate signed by
the President of the Company to the Demand Holders requesting the Demand
Registration stating that, in the good faith discretion of the Board of
Directors of the Company, it would not be in the best interests of the Company
for such Registration Statement to be filed on or before the date the filing
would otherwise be required and the Demand Holder will be entitled to withdraw
its request for the Demand Registration. If the request for the Demand
Registration is so withdrawn, such Demand Registration request shall not count
as a Demand Registration request hereunder. The Company may not exercise its
right to delay a request more than once in any consecutive period of 365 days.
(g) Registration of Other Securities. Whenever the Company shall effect a
registration pursuant to this Section 2, no securities other than Registrable
Securities shall be included among the securities covered by such registration
unless, (i) in the case of the Required Registration, all of the Holders, or
(ii) in the case of a Demand Registration, the Demand Holders which requested
such Demand Registration, shall have consented in writing to the inclusion of
such other securities and, in the case of a Demand Registration, if such other
securities are included and the managing underwriter advises the Company that,
in its opinion, the number of securities requested to be included exceeds what
can be sold, such other securities shall be first excluded, pro rata among the
holders of such other securities before the provisions of Section 2(d) are
applied. In no event shall any Registrable Securities issued upon conversion of
the Preferred Stock be excluded from the Required Registration due to the
inclusion of other securities.
(h) Other Registration Rights. Except as otherwise provided in this
Agreement, the Company will not grant to any Persons the right to request the
Company to register any equity securities of the Company, or any securities
convertible or exchangeable into or exercisable for such securities, without the
written consent of Holders then holding a majority of the Registrable Securities
held by all such Holders which would be reasonably likely to be adversely
affected by the grant of any such superior rights by any such inconsistent
agreement; provided, however, that the Company may grant rights substantially
similar to the right to request a Piggyback Registration pursuant to Section
3(a), with respect to the Common Stock issued pursuant to any stock options
granted by the Company, but only if such rights are expressly subordinated to
the rights of the Holders pursuant to Section 3 hereof.
3. Piggyback Registration.
(a) Right to Piggyback. If the Company at any time proposes to register any
securities under the Securities Act (other than registrations on Form S-4 or S-8
of the Commission or the equivalent thereof) for its own account or for the
account of another (except for the Required Registration or a Demand
Registration) and the form of Registration Statement to be used may be used for
the registration of Registrable Securities, the Company will give prompt written
notice to all Holders which are holders of Registrable Securities of its intent
to do so. Within 30 days after receipt of such notice, any Holder which is a
holder of Registrable Securities may by written notice to the Company request
the registration by the Company under the Securities Act of Registrable
Securities in connection with such proposed registration by the Company under
the Securities Act (a "Piggyback Registration"). Such written notice to the
Company shall specify the Registrable Securities intended to be disposed of by
such Holders and the intended method of distribution thereof. Upon receipt of
such request, the Company will use its best efforts to register under the
Securities Act all Registrable Securities which the Company has been so
requested to register, to the extent requisite to permit the disposition of the
Registrable Securities so to be registered; provided, however, that if at any
time after giving notice of its intent to register securities and before pricing
of the sale of such securities, the Company determines for any reason not to
register or to delay registration of such securities, the Company shall give
notice of such determination to the Holders requesting such Piggyback
Registration, and, thereupon, (i) in the case of a determination not to
register, the Company shall be relieved of its obligation to register any
Registrable Securities in connection with such Piggyback Registration (but not
from its obligation to pay registration expenses pursuant to Section 5 hereof)
without prejudice, however, to the rights of any Holder or Holders of
Registrable Securities entitled to request that such registration be effected as
a Demand Registration under Section 2 hereof, and (ii) in the case of a
determination to delay registering, the Company may delay registering any
Registrable Securities for the same period as the delay in registering such
other securities. No registration effected under this Section 3 shall relieve
the Company of its obligation to effect the Required Registration or any Demand
Registration upon request under Section 2(b) hereof.
(b) Selection of Underwriters. The underwriters of any offering pursuant to
a Piggyback Registration shall be one or more nationally-recognized investment
banking firms selected by the Company.
(c) Priority in Piggyback Registrations. If the managing underwriter
advises the Company in writing that, in its opinion, the number of Registrable
Securities requested to be included in the Piggyback Registration exceeds what
can be sold in such offering at a price reasonably acceptable to the Company
(and, if applicable, the holders of the Company's securities initiating the
Piggyback Registration), then the Company will include in such Piggyback
Registration the number of Registrable Securities which the Company is so
advised can be sold in such offering, which shall be allocated pro rata on the
basis of the number of shares of the Common Stock so proposed to be sold and so
requested to be included.
If the managing underwriter advises the Company in writing that, in its
opinion, the number of Registrable Securities requested to be included in a
Piggyback Registration by Holders who are members of Management of the Company
should be reduced, then the Company will reduce the number of Registrable
Securities requested to be sold by such Persons on a pro rata basis.
In the event any Registrable Securities of any Holders are excluded from
registration as a result of the foregoing provisions, then such Persons shall be
entitled to sell, on a pro rata basis, the excluded Registrable Securities,
prior to any other Registrable Securities, pursuant to the underwriters'
over-allotment option.
Except as provided in the last sentence of this paragraph and the preceding
paragraph, no Registrable Securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such registration.
If any Holder disapproves of the terms of the underwriting, such Person may
elect to withdraw therefrom by written notice to the Company and the
underwriters. The Registrable Securities so withdrawn from such underwriting
shall also be withdrawn from such registration; provided, however, that if by
the withdrawal of such Registrable Securities a greater number of Registrable
Securities held by other Holders may be included in such registration (up to the
maximum of any limitation imposed by the underwriters), then the Company shall
offer to all Holders who have included Registrable Securities in the
registration the right to include additional Registrable Securities in the same
proportion used above in determining the underwriters' limitation.
4. Registration Procedures.
(a) Company Covenants. Whenever the Company is hereunder required to effect
the registration under the Securities Act of any Registrable Securities, or to
use its best efforts to effect the registration under the Securities Act of any
Registrable Securities, as provided in Section 2 or Section 3, the Company will:
(i) prepare and file with the Commission as soon as practical, but in any
event, with respect to any Demand Registration or Piggyback
Registration, no later than 90 days after receipt of an appropriate
request in the exercise of its commercially reasonable best efforts,
the requisite Registration Statement to effect such registration and
thereafter use its best efforts to cause such Registration Statement
to become effective, provided that the Company may discontinue any
registration of its securities which are not Registrable Securities
(and, under the circumstances specified in Subsection 3(a), its
securities which are Registrable Securities) at any time prior to the
effective date of the Registration Statement relating thereto;
provided, however, that before filing a Registration Statement the
Company will furnish the Holders of Registrable Securities covered by
such Registration Statement, the underwriters, if any, and any
attorney, accountant or other agent retained by any such Holders of
Registrable Securities or underwriters (a) copies of all such
documents proposed to be filed, and (b) if requested, financial and
other information required by the Commission to be included in such
Registration Statement and all financial and other records, pertinent
corporate documents and properties of the Company customarily reviewed
in connection with an underwritten registration;
(ii) prepare and file with the 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 and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such
Registration Statement until the earlier of (a) such time as all such
securities have been disposed of in accordance with the intended
methods of disposition by the sellers thereof set forth in such
Registration Statement and (b) the expiration of 180 days from the
date such Registration Statement first becomes effective (exclusive of
any period during which the Holders are prohibited or impaired from
disposition of Registrable Securities by reason of the occurrence of
any event described in Section 4(a)(v)(a), Section 4(a)(vii) or
Section 4(c)), at which time the Company shall have the right to
deregister any of such securities which remain unsold; provided, that
the Company shall be deemed not to have used all reasonable efforts to
keep a Registration Statement effective during the applicable period
if it voluntarily takes any action that results in the selling Holders
of the Registrable Securities covered thereby not being able to sell
such Registrable Securities during that period;
(iii)furnish to each seller of Registrable Securities covered by such
Registration Statement and each underwriter, if any, such number of
conformed copies of the Registration Statement, and of each amendment
and supplement thereto, such number of copies of the prospectus
contained in such Registration Statement and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents as such
seller may reasonably request (and the Company hereby consents to the
use of, in accordance with all applicable laws, each of the
Registration Statement and any amendments thereto and any prospectus
and any supplement thereto by each such seller and underwriters, if
any, in connection with the offering and sale of Registrable
Securities covered by such Registration Statement);
(iv) use its best efforts to register or qualify all securities covered by
such Registration Statement under such other securities or blue sky
laws of jurisdictions as each seller thereof shall reasonably request,
to keep such registration or qualification in effect for so long as
the Registration Statement remains in effect, and to take any other
action which may be reasonably necessary or advisable to enable such
seller to consummate the disposition in such jurisdictions of the
securities owned by such seller, except that the Company shall not for
any such purpose be required to (a) qualify generally to do business
as a foreign corporation in any jurisdiction wherein it would not be
obligated to be so qualified but for the requirements of this
subsection; or (b) consent to general service of process in any such
jurisdiction; (v) use its best efforts to (a) obtain the withdrawal of
any order suspending the effectiveness of such Registration Statement
or sales thereunder at the earliest possible time and (b) cause all
Registrable Securities covered by such Registration Statement to be
registered with or approved by such other governmental agencies or
authorities of United States jurisdictions as may be necessary to
enable the seller thereof to consummate the disposition of such
Registrable Securities;
(vi) furnish to each seller of Registrable Securities a signed counterpart,
addressed to such seller and the underwriters, of:
1) an opinion of counsel for the Company dated the effective date of
the Registration Statement (and dated the closing date under the
underwriting agreement), reasonably satisfactory in form and
substance to such seller, and
2) a "comfort letter" dated the effective date of the Registration
Statement (and dated the date of the pricing and the closing
under the underwriting agreement), signed by the independent
public accountants who have certified the Company's financial
statements included in such Registration Statement, covering
substantially the same matters as are customarily covered in
opinions of issuer's counsel and in such letters delivered to the
underwriters in underwritten public offerings of securities, and,
in the case of the legal opinion, such other legal matters, and,
in the case of the "comfort letter," such other financial
matters, as such sellers or the underwriter may reasonably
request;
(vii)at any time when a prospectus relating thereto is required to be
delivered under the Securities Act, notify each seller of
Registrable Securities covered by such Registration Statement
promptly after the Company discovers that the prospectus included
in such Registration Statement as then in effect includes an
untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the
circumstances under which they were made, and at the request of
any such seller promptly prepare and furnish to such seller a
reasonable number of copies of a supplement to or an amendment of
such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such prospectus
shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances under which they were made;
(viii) comply with all applicable rules and regulations of the
Commission and make available to its security holders an earnings
statement satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after
the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (or in each case
within such extended period of time as may be permitted by the
Commission for filing the applicable report with the Commission)
(a) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering or (b) if not
sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which earnings
statements shall cover such 12-month period;
(ix) promptly (but in any event, within three business days) notify
the selling Holders of Registrable Securities, their counsel and
the managing underwriters, if any, and confirm such notice in
writing:
1) when a prospectus or any supplement or post-effective
amendment to such prospectus has been filed and, with
respect to a Registration Statement or any post-effective
amendment thereto, when the same has become effective;
2) of any request by the Commission or any other Federal or
state governmental authority for amendments or supplements
to a Registration Statement or related prospectus or for
additional information;
3) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any
prospectus or the initiation of any proceedings by any
Person for that purpose;
4) if at any time the representations and warranties of the
Company contemplated by Section 4(b) below cease to be true
and correct in any material respect;
5) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the
Registrable Securities for offer or sale under the
securities or blue sky laws of any jurisdiction, or the
contemplation, initiation or threatening, of any proceeding
for such purpose;
6) of the happening of any event that makes any statement made
in such Registration Statement untrue in any material
respect or that requires the making of any changes in such
Registration Statement so that it will not contain any
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made (in the case of any prospectus),
not misleading; and
7) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would
be appropriate.
(x) if requested by the managing underwriters, if any, or a Holder of
Registrable Securities being sold, promptly incorporate in a
prospectus, supplement or post-effective amendment any
information as the managing underwriters, if any, and the Holders
of a majority of the Registrable Securities being sold reasonably
request to be included therein relating to the sale of the
Registrable Securities, including, without limitation,
information with respect to the number of shares of Registrable
Securities being sold to underwriters, the purchase price being
paid therefor by such underwriters and with respect to any other
terms of the underwritten offering of the Registrable Securities
to be sold in such offering, and make all required filings of
such prospectus, supplement or post-effective amendment promptly
following notification of the matters to be incorporated in such
supplement or post-effective amendment; furnish to each selling
Holder of Registrable Securities and the managing underwriter,
without charge, at least one signed copy of the Registration
Statement;
(xii)cooperate with the selling Holders of Registrable Securities and
the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing the
Registrable Securities not bearing any restrictive legends and in
a form eligible for deposit with The Depository Trust Company to
be sold, and cause such Registrable Securities to be in such
denominations and registered in such names as the managing
underwriters, if any, or holder of Registrable Securities may
request at least three business days prior to any sale of
Registrable Securities to the underwriters;
(xiii) cooperate with each seller of Registrable Securities covered by
any registration statement and each underwriter, if any,
participating in the disposition of such Registrable Securities
and their respective counsel in connection with any filings to be
made with the NASD;
(xiv)use all reasonable efforts to take all other steps necessary to
effect the registration of the Registrable Securities covered by
the Registration Statement contemplated hereby;
(xv) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such Registration
Statement and a CUSIP number from and after a date not later than
the effective date of such Registration Statement; and
(xvi)use its best efforts to list all Registrable Securities covered
by such Registration Statement on all securities exchanges and
inter-dealer quotation systems on which similar securities issued
by the Company are then listed or quoted and, if not then listed
or quoted on a nationally-recognized securities exchange, to use
its commercially reasonable best efforts to list the Registrable
Securities covered by such Registration Statement on a nationally
recognized United States securities exchange or on the NASD
automated quotation system by December 31, 2001, and, if listed
on the NASD automated quotation system, use its best efforts to
secure designation of all such Registrable Securities covered by
such Registration Statement as a NASDAQ "national market system
security" within the meaning of Rule 11 Aa2-1 under the Exchange
Act, or failing that, to secure NASDAQ authorization and without
limiting the foregoing, use its best efforts to arrange for at
least two market makers to register as such with respect to such
Registrable Securities with the NASD, and shall take any other
action reasonably necessary or advisable to facilitate the
disposition of such Registrable Securities.
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish the Company such information
regarding such seller and the distribution of such securities as the Company may
request. Any Person participating in the Required Registration, any Demand
Registration or any Piggyback Registration must (a) agree to sell their
securities on the basis provided in the underwriting agreement and (b) complete
and execute all documents required under this Agreement or the underwriting
agreement.
Each Holder of Registrable Securities agrees that upon receipt of any
notice from the Company of the happening of any event of the kind described in
subparagraph (vii) of this Subsection 4(a), such Holder will discontinue
immediately such Holder's disposition of securities pursuant to the Registration
Statement until such Holder receives copies of the supplemented or amended
prospectus contemplated by such subparagraph (vii) and, if so directed by the
Company, will deliver to the Company all copies, other than permanent file
copies, then in such Holder's possession of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice.
(b) Underwriting Agreement. The Company will enter into an underwriting
agreement with the underwriters, if any, for any offering pursuant to the
Required Registration, a Demand Registration or a Piggyback Registration if
requested by the underwriters so to do. The underwriting agreement will contain
such representations and warranties by the Company and such other terms as are
generally prevailing at such time in underwriting agreements (and
indemnification and contribution provisions substantially similar to Section 6
herein). The Holders of Registrable Securities to be distributed by the
underwriters shall be parties to such underwriting agreement and may, at their
option, require that any or all of the representations, warranties, and other
agreements by the Company to and for the benefit of the underwriters also be
made to and for the benefit of such Holders of Registrable Securities and that
any or all of the conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to the obligations of
such Holders of Registrable Securities, to the extent such terms are generally
prevailing at such time in underwriting agreements. No Holder of Registrable
Securities who is not an Affiliate of the Company shall be required to make
representations or warranties to, or agreements with, the Company or the
underwriters other than representations, warranties or agreements regarding such
Holder, such Holder's Registrable Securities, such Holder's intended method of
distribution and any representations required by law.
(c) Holdback Agreements. The Company agrees (x) not to effect any public
sale or distribution of its equity securities or securities convertible into or
exchangeable or exercisable for any of such securities during the seven days
prior to and the 120 days after any Demand Registration or Piggyback
Registration has become effective, except as part of such Demand Registration or
Piggyback Registration, as the case may be, and except pursuant to registrations
on Form X-0, X-0 or any successor or similar forms thereto and (y) to use its
best efforts to cause each holder of at least 5% of its equity securities (on a
fully-diluted basis), or any securities convertible into or exchangeable or
exercisable for any such securities, to agree not to effect any such public sale
or distribution of such securities during such period, unless the managing
underwriter otherwise agrees to such sale or distribution.
(d) Preparation: Reasonable Investigation. In connection with the
preparation and filing of each Registration Statement under the Securities Act
pursuant to this Agreement, the Company will give the Holders of Registrable
Securities to be registered under such Registration Statement, the underwriters
and their respective counsel and accountants, the opportunity to participate in
preparing the Registration Statement and, in the case of any Holder which m its
reasonable judgment might be deemed to be an underwriter or controlling person
of the Company, to require the insertion therein of material furnished to the
Company in writing which, in the reasonable judgment of such Holders and their
counsel, should be included. The Company will also give the underwriters and
their respective counsel and accountants and any Holder which in its reasonable
judgment might be deemed to be an underwriter or controlling person of the
Company such access to its books and records and opportunities to discuss the
business of the Company with the Company's officers and independent public
accountants who have certified the Company's financial statements as shall, in
the opinion of such Holders' and such underwriters' respective counsel, be
necessary to conduct a reasonable investigation within the meaning of the
Securities Act. The Company will not file any Registration Statement to which
the Holders of at least a majority of the Registrable Securities covered by such
Registration Statement or the underwriters, if any, shall for reasonable reasons
object.
(e) Rule 144. If the Company files a Registration Statement pursuant to the
Securities Act or Section 12 of the Exchange Act, the Company will also file the
reports required to be filed by it under the Securities Act and the Exchange Act
to enable the Holders to sell their Registrable Securities without registration
under the Securities Act and within the exemptions provided under the Securities
Act by Rule 144 or any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
5. Registration Expenses. The Company will bear all expenses incident to the
Company's performance of or compliance with this Agreement, including,
without limitation, all registration, filing and NASD fees, all securities
and blue sky compliance fees and expenses, all word processing expenses,
duplicating expenses, printing expenses, engraving expenses, messenger and
delivery expenses, all Company general and administrative expenses, all
Company counsel and accountants' fees and disbursements, all special audit,
financial statement and reconstruction costs, all comfort letter costs, all
underwriter fees and disbursements customarily paid by issuers or sellers
of securities (including fees paid to a "qualified independent underwriter"
required by the rules of the NASD in connection with a distribution), all
"road show" expenses and allocations and such expenses for other Persons
retained by the Company, and all reasonable fees and expenses of one law
firm representing the Holders of Registrable Securities included in such
registration, which counsel shall be selected by the Holders of a majority
of the Registrable Securities included in such registration, but excluding
discounts, commissions or fees of underwriters, selling brokers, dealer
managers, sales agents or similar securities industry professionals
relating to the distribution of Registrable Securities, all fees and
expenses of each law firm serving as counsel to the sellers of Registrable
Securities (other than the Company) included in the Registration Statement
other than the counsel which shall be selected by the Holders of a majority
of the Registrable Securities included in such registration pursuant to
this Section 5 and applicable transfer taxes, if any, which shall be borne
by the sellers of the Registrable Securities being registered in all cases.
6. Indemnification.
(a) Indemnification by the Company. In the event of the Required
Registration or any Demand Registration or any Piggyback Registration of any
Registrable Securities under the Securities Act the Company shall, and hereby
does, indemnify and hold harmless each seller of any Registrable Securities
covered by the Registration Statement with respect thereto, such seller's
partners, directors, fiduciaries, officers and agents, each underwriter
(including any "qualified independent underwriter" required by the rules of the
NASD) of the offering or sale of such securities, and each Person who controls
such seller or underwriter within the meaning of the Securities Act, against any
losses, costs, claims, damages or liabilities (including without limitation
reasonable attorneys' fees and other costs and expenses incurred in defending
any such claim) to which such seller, partner, director, officer, agent,
underwriter or controlling Person, as the case may be, may become subject under
the Securities Act or otherwise, insofar as such losses, costs, claims, damages
or liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof or any of the foregoing incurred in settlement of litigation)
arise out of or are based upon an untrue statement or alleged untrue statement
of material fact contained in the Registration Statement under which such
Registrable Securities were sold or an omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading or any violation or alleged violation by the
Company of any federal, state or common law rule or regulation applicable to the
Company in connection with such registration, and the Company will reimburse
each such indemnified Person for expenses reasonably incurred by it (including,
without limitation, costs of investigation and reasonable attorneys' fees and
disbursements) in connection with defending such loss, claim, damage, liability,
action or proceeding; provided, however, that the Company shall not be liable in
any such case for any losses, costs, claims, damages, liabilities (or actions or
proceedings in respect thereof or any of the foregoing incurred in settlement of
litigation) or expenses which arise out of or are based upon an untrue statement
or alleged untrue statement or omission or alleged omission made by the Company
in such Registration Statement in reliance upon and in conformity with
information furnished to the Company by such Person through an instrument duly
executed by such Person specifically stating that it is for use in the
preparation thereof; and provided, further, that the Company shall not be liable
to and does not indemnify any underwriter in the offering or sale of Registrable
Securities, or any Person who controls an underwriter within the meaning of the
Securities Act, in any such case to the extent that any such loss, costs, claim,
damage, liability (or action or proceeding in respect thereof or any of the
foregoing incurred in settlement of litigation) or expense arises out of such
Person's failure to send or give a copy of the final prospectus, as the same may
be supplemented or amended, to the Person asserting an untrue statement or
alleged untrue statement or omission or alleged omission at or prior to the
written confirmation of the sale of Registrable Securities to such Person, if
such statement or omission was corrected in such final prospectus. This
indemnity shall remain in full force and effect regardless of any investigation
made by or on behalf of an indemnified party, and shall survive the transfer of
such Registrable Securities by the seller thereof.
(b) Indemnification by the Sellers. The Company may require, as a condition
to including any Registrable Securities in any Registration Statement, that the
Company receive an undertaking satisfactory to it from the prospective seller of
such Registrable Securities, to indemnify and hold harmless (in the same manner
and to the same extent as set forth in subsection (a) of this Section 6) the
Company, its directors, its officers, agents, Affiliates and each other Person
who controls the Company within the meaning of the Securities Act, with respect
to any statement or alleged statement in or omission or alleged omission from
such Registration Statement, if such statement or alleged statement or omission
or alleged omission was made in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by such
seller specifically stating that it is for use in the preparation of such
Registration Statement. The prospective sellers' obligation to indemnify will be
several, not joint and several, among such sellers and the liability of each
such seller of Registrable Securities shall be in proportion to and limited to
the net amount received by such seller from the sale of Registrable Securities
pursuant to such Registration Statement. This indemnity shall remain in full
force and effect, regardless of any investigation made by or on behalf of the
Company, its directors, officers, agents, Affiliates or controlling Persons, and
shall survive the transfer of such Registrable Securities by the seller thereof.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified party
of notice of the commencement of any action or proceeding involving a claim
referred to in Section 6(a) or Section 6(b), such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party, give
written notice to the latter of the commencement of such action. The failure of
any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subdivisions of this
Section 6, except to the extent that a court of competent jurisdiction
determines that the indemnifying party is materially prejudiced by the failure
to give such, notice. In case any such action is brought against an indemnified
party, unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified party and the indemnifying parties may exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable for any settlement
made by the indemnified party without its consent (which consent will not be
unreasonably withheld) or for any legal or other expenses subsequently incurred
by the indemnified party in connection with the defense thereof unless the named
parties to any such action, claim or proceeding include any indemnified party
and the indemnifying party or an Affiliate of the indemnifying party, and such
indemnified party shall have been advised by counsel that either (a) there may
be one or more legal defenses available to it which are different from or in
addition to those available to the indemnifying party or such Affiliate or (b) a
conflict of interest may exist if such counsel represents such indemnified party
and the indemnifying party or its Affiliate in which case the indemnifying party
shall not have the right to assume the defense thereof and counsel of the
indemnified party shall be at the expense of the indemnifying party; provided,
however, if at any time an indemnified party shall have requested the
indemnifying party to assume the defense of any such action or to reimburse it
for indemnified expenses and the indemnifying party shall not have done so, the
indemnifying party agrees that it shall be liable for any settlement of any
losses, costs, claims, damages or liabilities of the nature contemplated by this
Section 6 effected without its written consent if (x) such settlement is entered
into more than 45 days after receipt by the indemnifying party of the aforesaid
request, (y) the indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into,
and (z) the indemnifying party shall not have assumed defense of the matter, or
reimbursed the expenses, in accordance with such request prior to the date of
settlement. No indemnifying party shall, without the consent of the indemnified
party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in respect
to such claim or litigation. An indemnifying party's liability to any
indemnified party hereunder shall not be extinguished solely because any other
indemnified party is not entitled to indemnity hereunder.
(d) Other Indemnification. The indemnification similar to that specified in
the preceding subsections of this Section 6 (with appropriate modifications)
shall be given by the Company and each seller of Registrable Securities with
respect to any required registration or other qualification of securities under
any Federal or state law or regulation of any governmental authority other than
the Securities Act.
(e) Indemnification Payments. The indemnification required by this Section
6 shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
cost, damage or liability is incurred.
(f) Contribution. If the indemnification provided for in this Agreement is
for any reason unavailable or insufficient to indemnify an indemnified party
under Subsection 6(a), Subsection 6(b) or Subsection 6(d) hereof in respect of
any loss, claim, damage or liability, or any action in respect thereof, or
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such party, contribute to the amount payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
in a proportion which reflects: (i) the relative benefits received on the one
hand by the Company and on the other hand by the Holders of the Registrable
Securities covered by the Registration Statement; and (ii) the relative fault
with respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, on the one hand of the
Company and on the other hand of the Holders of the Registrable Securities
covered by the Registration Statement, as well as any other relevant equitable
considerations.
The relative benefits received shall be deemed to be in the same proportion
which the total proceeds from the offering of the securities (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company bears to the total proceeds from the offering of the securities
(net of underwriting discounts and commissions but before deducting expenses)
received by the Holders of the Registrable Securities with respect to such
offering, and in each case, such net proceeds received from such offering shall
be determined as set forth on the table of the cover page of the prospectus.
Notwithstanding the provisions of this section, no Holder shall be required to
contribute any amount in excess of the proceeds (net of underwriting discounts
and commissions but before deducting expenses) received by such Holder in the
registration.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Holders of the Registrable Securities; the intent of the
parties; the parties' relative knowledge; the parties' access to information;
and the parties' opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 6 is determined by pro rata allocation or
by any other method of allocation which does not take into account the equitable
considerations referred to herein.
No Person guilty of "fraudulent misrepresentation" within the meaning of
Section 11 of the Securities Act shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
7. Miscellaneous.
(a) Amendments and Waivers. This Agreement may be amended or waived by the
consent of the Company and the Holders holding at least seventy five percent
(75%) of the Registrable Securities then held by all of the Holders. Each holder
of any Registrable Securities at the time or thereafter outstanding shall be
bound by any consent authorized by this Subsection 7(a), whether or not such
Registrable Securities shall have been marked to indicate such consent.
(b) Nominees for Beneficial Owners. If Registrable Securities are held by a
nominee for the beneficial owner thereof, the beneficial owner thereof may, at
its election, be treated as the holder of such Registrable Securities for
purposes of (i) any action by holders of Registrable Securities pursuant to this
Agreement and (ii) any determination of the number of Registrable Securities
held by any holders of Registrable Securities contemplated by this Agreement. If
the beneficial owner of any Registrable Securities so elects, the Company may
require assurances of such beneficial owner's ownership of such Registrable
Securities.
(c) Notices. Any notice, request, instruction or other document to be given
hereunder shall be in writing (including telecopy, e-mail transmission, or
similar writing) and shall be given to the party being notified at its address,
telecopy number, or e-mail address set forth on the signature pages hereof or to
any other address as the party to whom notice is to be given may provide in a
written notice to the party giving the notice, a copy of which written notice
shall be on file with the Secretary of the Company. Each notice, request or
other communication shall be effective if: (i) given by telecopy, or e-mail
transmission, when that telecopy or e-mail transmission is transmitted to the
telecopy number or e-mail address specified in this Section and the appropriate
answer back is received; (ii) given by mail, 72 hours after the communication is
deposited in the mails with first class postage prepaid addressed as aforesaid;
or (iii) given by any other means, when delivered at the address specified in
the signature pages to this Agreement.
(d) Assignment. The rights granted under this Agreement may be assigned or
otherwise conveyed in whole or in part by any Holder of Registrable Securities
to any transferee of Registrable Securities; provided that in each case the
Company is given written notice of the transfer, stating the name and address of
said transferee, and the transferee agrees in writing, in form and substance
reasonably satisfactory to the Company, to be bound by the provisions of this
Agreement to the same extent as the transferor. Upon any Distribution, Obsidian
shall assign all of its rights hereunder to the Partners with respect to the
Registrable Securities distributed in each such Distribution.
(e) Descriptive Heading. The descriptive headings of the sections and
paragraphs of this Agreement are for reference only and shall not limit or
otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws, and not the law of conflicts, of
the State of Indiana.
(g) WAIVER OF JURY TRIAL. THE PARTIES HERETO IRREVOCABLY AN])
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREON.
(h) Specific Performance. The parties hereto acknowledge that there may be
no adequate remedy at law if any party fails to perform any of its obligations
hereunder, and accordingly agree that each party, in addition to any other
remedy to which it may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of any other party under this
Agreement in accordance with the terms and conditions of this Agreement, in any
court of the United States or any state thereof having jurisdiction.
(i) Counterparts. This Agreement may be executed in multiple counterparts.
Each counterpart is an original, but all counterparts shall together constitute
one and the same instrument.
(j) Entire Agreement. This Agreement constitutes the entire agreement among
the parties hereto with respect to the content of this Agreement.
(k) Effectiveness. This Agreement shall not become effective unless and
until one or more Holders receives shares of Common Stock or Common Stock
Equivalents upon the first closing of the transactions contemplated by the
Acquisition Agreement.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXXX CORPORATION
By:______________________________
Name:___________________________
Title:____________________________
Address: Attn:____________________
00000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile:________________________
OBSIDIAN CAPITAL PARTNERS, L.P.
By:_______________________________
Obsidian Capital Company, LLC,
Its general partner
By:________________________
Name:_____________________
Title:______________________
Address: Attn:______________
000 Xxxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
XXXXXX CORPORATION
By:_____________________________
Name:___________________________
Title:____________________________
Address: Attn:____________________
00000 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile:________________________
OBSIDIAN CAPITAL PARTNERS, L.P.
By:_______________________________
Obsidian Capital Company, LLC,
Its general partner
By:________________________
Name:______________________
Title:_______________________
Address: Attn:_______________
000 Xxxxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
CADEMA CORPORATION
By:_____________________________
Name:___________________________
Title:____________________________
Address:_________________________
Facsimile:________________________
--------------------------------
Xxxxx Xxxxxxxx
THE NORTHERN TRUST COMPANY
F/B/O HEB INVESTMENT AND RETIREMENT
PLAN
By:_______________________________
Name:_____________________________
Title:______________________________
Address:___________________________
Facsimile:__________________________
UW H.M. WITF
F/B/O XXXXX XXXX XXXXXX
By:_____________________________
Name:__________________________
Title:___________________________
Address:________________________
Facsimile:_______________________
CLEVELAND FAMILY LIMITED PARTNERSHIP
By:____________________________
By:______________________
Name:____________________
Title:_____________________
Address:__________________
Facsimile:_______________________
XXXXXX XXXXX CO.
By:____________________________
Name:_________________________
Title:__________________________
Address:_______________________
Facsimile:______________________
EXHIBIT A
SCHEDULE OF SECURITY HOLDERS*
Shares of Common Stock or
Name Or Common Stock Equivalents
Obsidian Capital Partners, L.P. 3,352,963 shares
of Preferred Stock
Cadema Corporation 1,750,000 shares
of Common Stock
Xxxxx Xxxxxxxx 23,640 shares
of Common Stock
The Northern Trust Company
f/b/o HEB Investment and Retirement Plan 1,179,988 shares
of Common Stock
UW X.X. Xxxx f/b/o Xxxxx Xxxx Xxxxxx 91,368 shares of
Common Stock
Cleveland Family Limited Partnership 386,591 shares
of Common Stock
Xxxxxx Xxxxx Co. 10,000 shares of Series C
Convertible Preferred Stock
* Schedule includes all Common Stock Equivalents.
