EX-10.26
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of the
16th day of October 1995 by and among THE PURO CORPORATION OF AMERICA, a
Delaware corporation, with its principal offices at 56 45 58th Street,
Maspeth, New York 11378(the "Company") and THE TRUST UNDER ARTICLE 16 OF
THE WILL OF X.XXXXXX XXXXX, FOR THE BENEFIT OF XXXXXX XXXXX c/o Xxxxx X.
Dixonof East 79th Street, New York, New York 10021 0202 ("Xxxxxx Trust"),
THE TRUST UNDER ARTICLE 16 OF THE WILL OF X. XXXXXX XXXXX, FOR THE BENEFIT OF
XXXXX X. XXXXX, c/o Xxxxx X. Xxxxx of79 East 79th Street, New York, New York
10021-0202 ("Xxxxx Trust") and XXXXX X. XXXXX, 00 Xxxx 00xx Xxxxxx, Xxx
Xxxx, XxxXxxx 00000-0000 (Xxxxx Xxxxx, together with the Xxxxxx Trust and the
Xxxxx Trust, "Purchaser" or "Investor").
W I T N E S S E T H:
WHEREAS, this date, the Investor has been issued one hundred twenty five
thousand (125,000) shares (the "Shares") of the Company's Common Voting
Stock, $.01 par value (the "Common Stock"); and
WHEREAS, the Investor and the Company desire to provide certain rights to
the Investor in the event that any or all of
the Common Stock becomes the subject of a registration statement(as
hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, it is agreed as follows:
SECTION I
REGISTRATION OF SHARES
1.1 The Shares have not been registered under the Securities Act of 1933,
as amended (the "Act"). Prior to any registration of the Shares, or in the
absence of an exemption from registration, the Purchaser shall make no offer,
sale or other disposition of any of the Shares except under circumstances
which, in the opinion of counsel to the Company, will be in compliance with
the Act. Each certificate for the Shares shall bear upon the face thereof the
following legend:
The shares represented by this certificate have been issued pursuant
to an exemption from registration under the Securities Act of 1933. These
shares may not be sold,transferred, pledged or hypothecated in the absence
of such registration or an exemption therefrom under such Act or the rules
and regulations thereunder.
1.2 REGISTRATION UNDER THE SECURITIES LAWS
(a) CONTEMPORANEOUS REGISTRATION. In the event that the Company
files a registration statement (defined herein to include a Notification under
Regulation A under the Act and the offering circular included therein) under
the Act which relatesto a current offering of securities of the Company
(except in
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connection with an offering solely to employees), such registration statement
and the prospectus included therein shall also, at the written request to the
Company by the Purchaser,include and relate to, and meet the requirement of
the Act with respect to the public offering of the Shares so as to permit the
public sale thereof in compliance with the Act, provided, however, the
underwriter consents to including said Shares in the contemplated public
offering and the Purchaser agrees to pay to the underwriter the underwriter's
discounts or commissions attributable to said Shares. In the event of such
consent, the Company shall give written notice to the Purchaser of its
intention to file a registration statement under the Act relating to a
current offering of the aforesaid securities of the Company sixty (60) or
more days prior to the filing of such registration statement, and the written
request provided for in the first sentence of this subsection shall be made
by the Purchaser thirty (30) or more days prior to the date specified in the
notice as the date on which it is intended to file such registration
statement. Neither the delivery of such notice by the Company nor of such
request by the Purchaser shall in any way obligate the Company to file such
registration statement and notwithstanding the filing of such registration
statement, the Company may, at any time prior to the effective date thereof,
determine not to offer the securities to which such registration statement
relates, without liability to the Purchaser, except that the Company shall
pay such expenses, costs and the like as
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are contemplated to be paid by it under subsection (c) of this Section.
Furthermore, if the Purchaser exercises registration rights under this
Section 1.2(a) with respect to an offering made by the Company, the Purchaser
shall bear any additional expenses, costs and the like, including but not
limited to all reasonable legal, accounting and travel expenses, which are
caused by the inclusion of the Purchaser's Shares in such registration.
(b) TERMS OF UNDERWRITING In connection with any offering involving
an underwriting of shares issued by the Company, and in addition to the
underwriter's consent, the Company shall not be required to include any of
the Purchaser's Shares in such underwriting unless the Purchaser accepts the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it, and then only in such quantity as will not, in
the written opinion of the underwriters, jeopardize the success of the
offering by the Company. If the total amount of Shares that the Purchaser
requests to be included in such offering exceeds the amount of shares that
the underwriters reasonably believe compatible with the success of the
offering, the Company shall only be required to include in the offering that
number of the Shares of the Purchaser (pro rata with the other offered shares
of the Company) which the underwriters believe will not jeopardize the
success of the offering provided that no such reduction shall be made as a
consequence of the filing of a registration statement with
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respect to treasury securities offered by the Company for its own account or
any securities offered by selling shareholders.
(c) DEMAND REGISTRATION RIGHTS; EXISTING REGISTRATION. In addition
to the aforementioned registration rights if, at anytime after the date
hereof, any Shares acquired hereunder have not been included in the
registration statement referred to in Section 1.2(a) either because the
Purchaser did not desire to sell or was not permitted to sell pursuant
thereto, or if said registration statement included some but not all of the
Shares owned by the Purchaser, then upon written notification to the Company
from the Purchaser that the Purchaser contemplates a sale under such
circumstances that constitute a public offering within the meaning of the Act,
the Company shall as expeditiously as reasonably possible prepare and file a
registration statement with the Securities and Exchange Commission for such
Shares and use its best efforts to cause such registration statement to become
and remain effective; provided, however, that (a) common Shares of the Company
are then publicly traded pursuant to an effective registration statement ,
and (b) in connection with any proposed registration intended to permit an
offering of any securities from time to time (ie., a so-called "shelf
registration") the Company shall in no event be obligated to cause any such
registration to remain effective for more than one hundred twenty (120) days.
The expense of this registration statement including, without limitation, all
legal and accounting
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fees, travel and all other expenses, shall be borne by the Company.
(d) DEMAND REGISTRATION RIGHTS; INITIAL REGISTRATION.
(i) In addition to the aforementioned registration rights, at
any time after February 1, 2001, if the Company has not filed a registration
statement as referred to in Section 1.2(a), then upon written notification to
the Company by the Purchaser that it wishes to cause a public offering of
some or all of the Shares, within the meaning of the Act, the Company shall
then as expeditiously as reasonably possible prepare and file a registration
statement with the Securities and Exchange Commission for such Shares and use
its best efforts to cause such registration statement to become and remain
effective; provided,however, that the Company be permitted to include an
offering of any other securities of the Company in such registration
statement and further provided that in connection with any proposed
registration intended to permit an offering of any ofthe Shares from time to
time (i.e., a so-called ""shelf registration'') the Company shall in no event
be obligated to cause any such registration to remain effective for more than
one hundred twenty (120) days. The expenses of this registration statement,
including but not limited to all legal and accounting fees, travel and all
other expenses, shall be borne by the Company.
(ii) In connection with this demand registration right, the
Purchaser shall have the right to compel the Company
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to adjust the number of its Shares outstanding in order to cause the
availability of that number of Shares for sale to the public which shall be
deemed by the Purchaser to be in the Purchaser's best interests in effecting
the registration of the Shares and ultimate disposition of the same.
(e) In each instance in which pursuant to this Section the Company
shall take any action to permit a public offering or sale or other
distribution of any of the Shares, the Company shall:
(i) Supply to the Purchaser if it intends to make a public
distribution four (4) executed copies of each registration statement or
Notification and four (4) executed copies of the preliminary, final and other
prospectus or offering circular in conformity with the requirements of the Act
and the rules and regulations promulgated thereunder.
(ii) Cooperate in taking such action as may be necessary to
register or qualify the Shares under such other securities acts or blue sky
laws of such jurisdictions as the Purchaser shall reasonably request and to do
any and all other acts and things which may be necessary or advisable to
enable the Purchaser to consummate such proposed sale or other disposition of
its Shares in any such jurisdiction; PROVIDED, HOWEVER, that in no event
shall the Company be obligated to qualify to do business or to file a general
consent to service of process in any jurisdiction where it shall not then be
qualified.
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(iii) Keep effective for a period of not less than one hundred
eighty (180) days after the initial effectiveness thereof all such
registration statements or Notifications under the Act and cooperate in
taking such action as may be necessary to keep effective such other
registrations and qualifications,and do any and all other acts and things for
such period - not to exceed twelve (12) months - as may be necessary to
permit the public sale or other disposition of such Shares by the Purchaser.
(iv) Indemnify and hold harmless the Purchaser and each
underwriter, within the meaning of the Act, who may purchase from or sell for
the Purchaser, any Shares, from and against any and all losses, claims,
damages, and liabilities (including, but not limited to, any and all expenses
whatsoever reasonably incurred in investigating, preparing, defending or
settling any claim) arising from (a) any untrue statement of a material
fact contained in any prospectus, registration statement or Notification
furnished pursuant to clause (i) of this subsection, or any prospectus or
offering circular included therein, or (b)any omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading (unless such untrue statement or omission
was based upon information furnished or required to be furnished in writing to
the Company by the Purchaser or any such underwriter expressly for use
therein), which indemnification shall include each person, if any, who
controls the Purchaser or any such underwriter within the meaning of the Act;
provided, however
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that the Company shall not be so obligated to indemnify the Purchaser or any
such underwriter or controlling person unless the Purchaser and underwriter
shall at the same time indemnify the Company, its directors, each officer
signing any registration statement or Notification or any amendment to any
registration statements or Notifications and each person, if any, who
controls the Company within the meaning of the Act, from and against any and
all losses, claims, damages and liabilities (including, but not limited to,
any and all expenses whatsoever reasonably incurred in investigating,
preparing, defending or settling any claim) arising from (a) any untrue
statement of a material fact contained in any registration statement or
Notification or any amendment to any registration statement or offering
circular furnished pursuant to Clause (i) of this subsection, or (b) any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, but the indemnity of
the Purchaser, or any such underwriter or controlling person shall be limited
to liability based upon information furnished, or required to be furnished,
in writing to the Company by the Purchaser or any such underwriter or
controlling person expressly for use therein. The indemnity agreement of the
Company therein shall not inure to the benefit of any such underwriter (or to
the benefit of any person who controls such underwriter) on account of any
losses, claims, damages, liabilities (or actions or proceedings in respect
thereof) arising from the sale of any of such Shares by such
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underwriter to any person if such underwriter failed to send or give a copy of
the prospectus or offering circular furnished pursuant to Clause (i) of this
subsection, as the same may then be supplemented or amended.
The Company's obligation under said subsection 1.2(d) shall be conditioned
as to such public offering, upon a timely receipt by the Company in writing of:
(A) Information as to the terms of such public offering furnished by
or on behalf of the Purchaser, if it intends to make a public distribution of
its Shares; and
(B) Such other information as the Company may reasonably require from
the Purchaser, or any underwriter for any of them, for inclusion in such
registration statement, Notification or post-effective amendment.
SECTION II
GENERAL PROVISIONS
2.1 Any failure on the part of any party hereto to comply with any of its
obligations, agreements or conditions hereunder may be waived in writing by
the parties hereto.
2.2 Without limiting any other indemnification set forth herein, each
party agrees to indemnify and hold harmless the others against any fee, loss
or expense arising out of claims by brokers or finders employed or alleged to
have been employed by the indemnifying party in connection with this
agreement.
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2.3 All notices, elections, demands or other communications required or
permitted to be made or given pursuant to this agreement shall be in writing
and shall be considered as properly given or made if sent and actually
received by courier service, overnight delivery service or first class mail,
postage prepaid or if transmitted (and receipt confirmed) by any
telecommunication device (e.g. telex or telecopier) and addressed or sent to
the respective parties' addresses specified below. Any party may change its
address by giving notice in writing to the other parties of its new address.
To the Company: Puro Corporation of America,
a Delaware Corporation
56 00 00xx Xxxxxx
Xxxxxxx, XX 00000
Attention: Messrs. Xxxxx Xxxx
and Xxxx X. Xxxx,
Co Presidents
To any Investor: c/o Xxxxx X. Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 0202
With a copy to: Lev & Berlin, P.C.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
2.4 This agreement and any agreements related hereto constitute the
entire agreement between the parties and supersede and cancel any other
agreement, representation, or communication,whether oral or written, between
the parties hereto relating to the transactions contemplated herein or the
subject matter hereof.
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2.5 The Company and the Investor hereby consent to submit themselves to
the jurisdiction of the United States District Court for the Southern District
of New York and the Courts of the State of New York in connection with any
disputes which may arise hereunder. The Company hereby consents to service of
process in the State of New York by naming the Secretary of State of the State
of New York as agent for service of process. Such submission to jurisdiction
and consent to service of process is nonexclusive of any other jurisdiction or
manner of service in which or by which personal jurisdiction over the Company
or the Investor may be obtained.
2.6 This agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York without giving effect to
principles of conflicts of law.
2.7 This agreement shall inure to the benefit of, and be binding upon,
the parties hereto and their successors and assigns; provided, however, that
any assignment by any party of its rights under this agreement without the
prior written consent of the other parties shall be void.
2.8 This agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this agreement effective
the day and year first above written.
PURO CORPORATION OF AMERICA
By: /s/ XXXX X. XXXX
---------------------------
Xxxx X. Xxxx,
Its Co President
Hereunto Duly Authorized
By: /s/ XXXXX XXXX
----------------------------
Xxxxx Xxxx,
Its Co President
Hereunto Duly Authorized
The Trust Under Article 16 of
The Will of X. Xxxxxx Xxxxx,
for the Benefit of Xxxxxx
Xxxxx and The Trust Under
Article 16 of the Will of X.
Xxxxxx Xxxxx, for the Benefit
of Xxxxx X. Xxxxx
By: /s/ XXXXX X. XXXXX
----------------------------
Xxxxx X. Xxxxx,
Hereunto Duly Authorized
/s/ XXXXX X. XXXXX
-----------------------------
Xxxxx X. Xxxxx, Individually
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