EXHIBIT 4.2
FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT dated as of April __, 2004 (this
"Agreement"), between Xxxxxxx Entertainment Company, a Delaware corporation
(the "Company"), and the parties named on Exhibit A hereto (each a "Holder,"
collectively the "Holders").
WITNESSETH:
WHEREAS the Holders own an aggregate of ______________________________
shares of common stock, par value $.01 per share, of the Company owned by the
record holders and in the amounts set forth on Exhibit A hereto (the
"Registrable Shares") [NUMBER SHOULD BE NET OF SHARES SOLD IN OFFERING]; and
WHEREAS the Company deems it to be in its best interest to provide an
orderly conduit for the sale of its shares and therefore grants the Holders
certain rights relating to the registration of the Registrable Shares.
NOW, THEREFORE, in consideration of the agreements, covenants,
representations and warranties contained herein and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
SECTION 1. Demand Registrations.
(a) The Holders may request registration under the
Securities Act of 1933, as amended (the "Securities Act"), of Registrable
Shares for sale in an underwritten public offering of no fewer than 2,500,000
Registrable Shares; provided, however, that the Company shall not be obligated
to register Registrable Shares pursuant to this Section 1 on more than one
occasion. The registration requested pursuant to this Section 1 shall be
referred to herein as the "Demand Registration".
(b) A registration will not count as the Demand Registration
for purposes of the proviso to Section 1 unless it has become effective (but if
a registration statement is filed and the Holders thereafter request for any
reason that the Company not cause the registration statement to become
effective, that registration shall nevertheless count as the Demand
Registration).
(c) The Holders may request their Demand Registration at any
time after 270 days after the date hereof, except during the pendency of an
offering by the Company in which Holders are offered to participate under
Section 2 hereof, then at any time 180 days after the date of the final
prospectus for such offering.
(d) The Holders may designate one joint book-running
managing underwriter of nationally recognized standing for such offering,
subject to the approval of the Company which shall not be unreasonably withheld
or delayed, and the Company may designate one joint book-running managing
underwriter.
(e) If at the time of any request to register Registrable
Shares pursuant to this Section 1, the Company is engaged or intends to engage
within 90 days of the time of the request in a registered public offering as to
which the Holders may include Registrable Shares pursuant to Section 2 or is
engaged in any other activity which, in the good faith determination of the
Company's Board of Directors, would be adversely affected by the requested
registration, then the Company may at its sole discretion direct that such
request be delayed for a period not in excess of 120 days from the effective
date of such offering or the date of such request in the case of any other
activity, as the case may be, such right to delay a request to be exercised by
the Company not more than once in any twelve-month period.
(f) The Company shall not include in any Demand Registration
any securities which are not Registrable Shares of the Holders without the
prior written consent of the Attorney in Fact.
(g) The rights of the Holders pursuant to this Section 1
shall expire on the third anniversary of the date hereof. Notwithstanding the
foregoing, in the event that the Company exercises any of its rights pursuant
to Section 1(e) hereof, the date of such expiration shall be extended for as
many days as any Demand Registration is delayed as a result. In the event that
the Company exercises its rights pursuant to Section 1(e) more than once, the
expiration shall be extended for a number of days equal to the aggregate number
of days that the Company delays all Demand Registrations.
SECTION 2. Piggyback Rights.
(a) Whenever the Company proposes to offer and sell any
Common Stock in an underwritten public offering under the Securities Act (but
not in the event of the Demand Registration) the Company will give prompt
written notice to the Holders of its intention to make such an offering (which
notice shall be given not less than 15 days prior to the date a registration
statement or prospectus supplement is to be filed) and, subject to the terms
hereof, will include in the registration relating to the offering (a "Piggyback
Registration") all Registrable Shares with respect to which the Company has
received a written request from the Holders for inclusion therein within five
days after the receipt of the Company's notice. After the Company has notified
the Holders of an opportunity to include Registrable Shares in two of the
foregoing registrations, the Company shall no longer be obligated to provide
Piggyback Registration to the Holders.
(b) If the book-running managing underwriter for such
offering advises the Company in writing that in their opinion the number of
securities to be registered and sold for the account of the Company,
Registrable Shares and other securities requested to be included in such
Piggyback Registration exceeds the number of securities to be registered and
sold for the account of the Company, Registrable Shares and other securities
that can be effectively sold in such offering, then the Company will include in
such registration only: (x) first, any securities the Company proposes to sell
for its own account or is required to include under any agreement of the
Company, and (y) second, Registrable Shares requested to be included in such
registration to the extent that, in the opinion of such underwriter, they can
be sold, in proportion to the number of shares so requested by each Holder to
be included.
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(c) The rights of the Holders pursuant to this Section 2
shall expire on the third anniversary of the date hereof. Notwithstanding the
foregoing, in the event that the Company exercises any of its rights pursuant
to Section 1(e) hereof, the date of such expiration shall be extended for as
many days as any Demand Registration is delayed as a result. In the event that
the Company exercises its rights pursuant to Section 1(e) more than once, the
expiration shall be extended for a number of days equal to the aggregate number
of days that the Company delays all Demand Registrations. Further, the Holders'
rights pursuant to this Section 2 shall not expire on the third anniversary of
the date hereof in the event that shares intended by the Holders to be
registered and sold in Piggyback Registrations during the period prior to such
third anniversary are reduced pursuant to Section 2(b) hereof below twenty five
percent (25%) of the Registrable Shares proposed to be sold by the Holders
pursuant to Piggyback Registration (the "Minimum Piggyback Amount"). In such
event, Holders shall retain the right to participate in one Piggyback
Registration, if any, prior to the fourth anniversary of the date hereof, at
which time all rights under this Section 2 shall expire.
SECTION 3. Holdback. The Company agrees (and shall sign an agreement
to such effect) not to effect any public sale or distribution of Common Stock,
or any securities convertible into or exchangeable or exercisable for Common
Stock, (other than granting awards under its employee and director stock
incentive plans and issuance of shares upon exercise of outstanding awards)
during the 15 days prior to and the 90-day period beginning on the date of the
final prospectus or prospectus supplement (except as part of such underwritten
registration).
SECTION 4. Registration Procedures.
(a) Whenever the Holders have requested that any Registrable
Shares be registered pursuant to this Agreement, the Company will use
reasonable efforts promptly to effect the registration and the sale of such
Registrable Shares in accordance with the intended method of disposition
thereof, and pursuant thereto the Company will use reasonable efforts to:
(i) prepare (and afford counsel for the Holders
reasonable opportunity to review and comment on) and file with the United
States Securities and Exchange Commission (the "Commission") within 30 days (or
if the Company shall not then be eligible to use Form S-3, 60 days) of the date
of such request a registration statement with respect to such Registrable
Shares and cause such registration statement to become and remain effective for
such period as may be reasonably necessary to effect the sale of such
securities as described in such request, but in no event for a period in excess
of 120 days;
(ii) prepare (and afford counsel for the Holders
reasonable opportunity to review and comment on) 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 during such period in accordance with the intended
methods of disposition by the Holders set forth in such registration statement;
(iii) furnish to Holders and the underwriters of the
Registrable Shares being registered such number of copies of such registration
statement, each amendment and
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supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as the Holders
or such underwriters may reasonably request in order to facilitate the
disposition of the Registrable Shares being registered or the sale of such
securities by such underwriters;
(iv) use all reasonable efforts to register or
qualify such Registrable Shares under such other securities or blue sky laws of
such jurisdictions within the United States as the Holders or, in the case of
an underwritten public offering, the managing underwriter, reasonably request
and do any and all other acts and things which may be reasonably necessary to
enable the Holders to consummate the disposition in such jurisdictions of the
Registrable Shares owned by the Holders; provided, however, that the Company
will not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
subsection or (B) consent to general service of process in any such
jurisdiction;
(v) cause, as may be required, all such Registrable
Shares to be listed or authorized for quotation on each securities exchange or
automated quotation system on which the Common Stock is then listed or quoted;
(vi) provide, as may be required, a transfer agent
and registrar for all such Registrable Shares not later than the effective date
of such registration statement;
(vii) enter into such customary agreements (including
an underwriting agreement in customary form and in form and substance similar
to the underwriting agreement entered into by the Company of even date
herewith) and take all such other actions as the Holders or the underwriters,
if any, reasonably request in order to expedite or facilitate the disposition
of such Registrable Shares;
(viii) make available for inspection at a reasonable
time by the Holders, any underwriter participating in any disposition pursuant
to such registration statement and any attorney, accountant or other agent
retained by the Holders or such underwriter, all financial and other records,
pertinent corporate documents and properties of the Company (collectively, the
"Records"), and cause the Company's officers, directors, employees and
independent accountants to supply all information reasonably requested by the
Holders or any such underwriter, attorney, accountant or agent ("Inspectors")
in connection with the preparation of such registration statement to enable
them to exercise their due diligence responsibility. The Holders agree that
Records and other information which the Company determines to be confidential
and of which determination the Inspectors are so notified shall not be
disclosed by the Inspectors unless (i) the release of such Records is legally
required or ordered pursuant to a subpoena, court order or regulatory or agency
request or is required pursuant to a deposition in conjunction with the
foregoing or (ii) the information in such Records has been generally
disseminated to the public. Each Holder agrees that it will, upon learning that
disclosure of such Record is sought in a court of competent jurisdiction or by
a governmental agency, give notice to the Company and allow the Company, at the
Company's expense, to undertake appropriate action to prevent disclosure of the
Records deemed confidential, but before making any disclosure will notify the
Company of a request for Records or disclosure of information and will notify
the Company in advance of disclosure if practical;
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(ix) notify the Holders, promptly after it shall
receive notice thereof, of the time when such registration statement has become
effective or a supplement to any prospectus forming a part of such registration
statement has been filed;
(x) notify the Holders of any request by the
Commission for the amending or supplementing of such registration statement or
prospectus or for additional information;
(xi) prepare (and afford one counsel for the Holders
reasonable opportunity to review and comment on) and file with the Commission,
promptly upon the request of the Holders, any amendments or supplements to such
registration statement or prospectus that, in the opinion of the Holders'
counsel, may be required under the Securities Act in connection with the
distribution of Registrable Shares by the Holders;
(xii) prepare and promptly file with the Commission
and promptly notify the Holders of the filing of such amendment or supplement
to such registration statement or prospectus as may be necessary to correct any
statements or omissions if, at the time when a prospectus relating to such
securities is required to be delivered under the Securities Act, any event
shall have occurred as the result of which any such prospectus or any other
prospectus as then in effect would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(xiii) advise the Holders, promptly after it shall
receive notice or obtain knowledge thereof, of the issuance of any stop order
by the Commission suspending the effectiveness of such registration statement
or the initiation or threatening of any proceeding for such purpose and use all
reasonable efforts promptly to prevent the issuance of any stop order or to
obtain its withdrawal if such stop order is issued;
(xiv) at least 48 hours prior to the filing of any
registration statement or prospectus or any amendment or supplement to such
registration statement or prospectus furnish a copy thereof to the Holders;
(xv) at the request of the Holders furnish on the
date or dates provided for in the underwriting agreement, if any, or upon the
effective date of the registration statement: (A) an opinion of counsel,
addressed to the underwriters, if any, and the Holders, covering such matters
as such underwriters, if any, and the Holders may reasonably request and as are
customarily covered by the issuer's counsel in an underwritten offering; and
(B) a letter or letters from the independent certified public accountants of
the Company addressed to the underwriters, if any, and the Holders covering
such matters as such underwriters, if any, and the Holders may reasonably
request and as are customarily covered in accountant's letters in connection
with an underwritten offering;
(xvi) during such time as the Holders may be engaged
in a distribution of Registrable Shares, comply with Regulation M promulgated
under the Exchange Act (or its successor), to the extent applicable;
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(xvii) participate, to the extent the Holders may
reasonably request (and for such number of days as the underwriters recommend
(not to exceed five (5) days for the Demand Registration)), with the Holders in
any road show in connection with any underwritten offering; and
(xviii) otherwise comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such registration statement in accordance with the intended method of
disposition and make generally available to its security holders, as soon as
reasonably practicable, an earnings statement satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder, which need not be
audited.
(b) Upon requesting registration of Registrable Shares
pursuant to a registration under this Agreement, the Holders agree as follows:
(i) The Holders shall cooperate as reasonably
requested by the Company with the Company in connection with the preparation of
the registration statement, and for so long as the Company is obligated to file
and keep effective the registration statement, shall provide to the Company, in
writing, for use in the registration statement, all such information regarding
the Holders and its plan of distribution of Registrable Shares as may be
necessary or advisable to enable the Company to prepare the registration
statement and prospectus covering the Registrable Shares, to maintain the
currency and effectiveness thereof and otherwise to comply with all applicable
requirements of law in connection therewith and to obtain any desired
acceleration of the effective date of any registration statement prepared and
filed by the Company pursuant to this Agreement; and
(ii) During such time as the Holders may be engaged
in a distribution of the Registrable Shares, the Holders shall (A) comply with
Regulation M promulgated under the Exchange Act (or its successor), to the
extent applicable, (B) distribute the Registrable Shares under the registration
statement solely in the manner described in the registration statement and (C)
cease distribution of such Registrable Shares pursuant to such registration
statement upon receipt of written notice from the Company that the prospectus
covering the Registrable Shares contains any untrue statement of a material
fact or omits a material fact required to be stated therein or necessary to
make the statements therein not misleading provided, however, that the period
during which the Company is required to maintain the effectiveness of the
Registration Statement shall be extended by one day for each day during which
the distribution must be suspended.
(iii) Each Holder agrees that if the managing
underwriter so requires and if such Holder's Registrable Securities are
included in such registration or if such Holder declines to include any
Registrable Securities in such registration or in the event of any Company
offering of securities convertible into Company common stock, not to effect any
sale or distribution, including any sale pursuant to Rule 144 or 145 of the
Securities Act, of any securities of the Company which are similar to the
securities included in such registration (other than as part of the
underwritten offering), without the consent of the managing underwriter(s), for
a period of 90 days after the date notice is given pursuant to Section 2 hereof
or with respect to an offering of convertible securities, 90 days after the
closing date of such offering; provided, however, that if the registration
statement filed in connection therewith becomes effective within
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such 90-day period, such 90-day period shall be extended for such period as may
be required pursuant to the terms and conditions of any underwriting agreement
entered into in connection with such proposed registration.
(iv) The Holders shall, if requested by the Company
or the managing underwriter(s) in connection with any proposed registration and
distribution pursuant to this Agreement, (i) agree to sell the Subject Shares
on the basis provided in any underwriting arrangements entered into by the
Company and any other selling shareholders in connection therewith and (ii)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreement and other documents customary in similar offerings.
(v) Upon receipt of any written notice from the
Company that the Company has become aware that the prospectus (including any
preliminary prospectus) included in any registration statement filed pursuant
to Section 1 or 2 hereof, as then in effect, contains any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, the Holders shall
forthwith discontinue disposition of Shares pursuant to the registration
statement covering the same until the Holders' receipt of copies of a
supplemented or amended prospectus and, if so directed by the Company, deliver
to the Company all copies other than permanent file copies then in the Holder's
possession, of the prospectus covering the Shares that was in effect prior to
such amendment or supplement.
(c) Registrable Shares shall cease to be Registrable Shares
when sold or transferred to other than a Holder hereunder (unless by gift,
donation or transfer without any consideration), whether or not pursuant to a
Registration Statement.
SECTION 5. Registration Expenses. With respect to Demand
Registrations, all expenses incident to the Company's performance of or
compliance with this Agreement, including, without limitation, all registration
and filing fees, fees of transfer agents and registrars, fees and expenses of
compliance with securities or blue sky laws, fees of the National Association
of Securities Dealers, Inc., printing expenses, fees and disbursements of
counsel for the Company, fees and expenses of the Company's independent
certified public accountants, underwriting fees, expenses, discounts or
commissions attributable to the Registrable Shares included in such
registration (but excluding road show expenses, and fees for counsel to the
underwriters, which will be paid or borne by the underwriters) (all such
expenses being herein called "Registration Expenses"), will be borne by the
Holders. With respect to Piggyback Registrations, all Registration Expenses
shall be paid or borne by the Company except for underwriting fees, expenses,
discounts, or commissions attributable to the Registrable Shares and fees for
counsel to the Holders, which shall be paid by the Holders. In addition, the
Company will pay its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expense of any annual audit or quarterly review, the
expense of any liability insurance obtained by the Company and the expenses and
fees for listing or authorizing for quotation the securities to be registered
on each securities exchange or automated quotation system on which any shares
of Common Stock are then listed or quoted.
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SECTION 6. Indemnification. The Company and the Holders agree, in
connection with any registration of the Registrable Shares to provide in any
underwriting agreement for indemnification of the underwriters by the Company
for any claims arising from any untrue statement of a material fact or omission
of any material fact in the registration statement necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided, however, that the Company will not be liable for
claims arising from any untrue statement of a material fact contained in a
registration statement or any omission to state a material fact necessary to
make the statements therein not misleading, if the statement or omission was
made in reliance upon information relating to any Holder furnished to the
Company by or on behalf of any Holder for use in connection with the
preparation of the Registration Statement or relating to any underwriter. The
Holders shall indemnify such underwriters solely for any misstatement included
in the prospectus pursuant to which Registrable Securities are sold, provided
that the Holders authorized in writing the inclusion of such misstatement in
such prospectus.
SECTION 7. Compliance with Rule 144. The Company shall use its
reasonable efforts to (i) make and keep public information available, as those
terms are understood and defined in Rule 144 under the Securities Act ("Rule
144"), (ii) file with the Company in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act
and (iii) at the reasonable request of the Holders, forthwith furnish to the
Holders a written statement of compliance with the reporting requirements of
the Commission as set forth in Rule 144 and make available to the Holders such
information as will enable the Holders to make sales pursuant to Rule 144.
SECTION 8. Holders' Representative. For the purpose of this Agreement,
Xxxxxxxxx Xxxxxxx Everest (or her successor or designee, the identity of which
the Company shall be notified in the event that they are appointed) shall
represent the Holders with respect to all matters related to this Agreement
(including but not limited to the decision to undertake a Demand Registration).
Each of the Holders hereby appoints her as attorney in fact ("Attorney in
Fact") for such Holder for all purposes under this Agreement, including
amendments to and waivers hereunder, notice, and the decision to undertake the
Demand Registration.
SECTION 9. Notice. Whenever any notice is required to be given
hereunder, such notice shall be deemed given only when such notice is in
writing and is delivered by messenger or courier or, if sent by fax, when
received. All notices, requests and other communications hereunder shall be
delivered by courier, reputable overnight delivery service, or messenger or
shall be sent by facsimile to the following addresses:
(i) If to the Holders, at the following address:
The Oklahoma Publishing Company
X.X. Xxx 00000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxx, Chief Operating Officer
for Xxxxxxxxx Xxxxxxx Everest as
Attorney in Fact
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with a copy (which shall not constitute notice) by facsimile or messenger or
courier to:
Xxxxxxx LLP
000 0xx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx, Esq.
(ii) If to the Company, at the following address:
Xxxxxxx Entertainment Company
Xxx Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxx
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
with a copy (which shall not constitute notice) by facsimile or messenger or
courier to:
Bass, Berry, & Xxxx PLC
000 Xxxxxxxxx Xxxxxx.
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: F. Xxxxxxxx Xxxxxx, Xx., Esq.
or to such other respective addresses as may be designated by notice given in
accordance with this Section 9.
SECTION 10. Complete Agreement; No Third-Party Beneficiaries. This
Agreement constitutes the entire agreement among the parties pertaining to the
subject matter hereof and supersedes all prior agreements and understandings of
the parties in connection therewith. This Agreement is not intended to confer
upon any Person other than the Company and the Holders any rights or remedies
hereunder.
SECTION 11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT
REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS. THE HOLDERS AND THE COMPANY
HEREBY CONSENT TO THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND
THE FEDERAL COURTS LOCATED THEREIN WITH RESPECT TO ANY ACTION, SUIT OR
PROCEEDING BROUGHT TO ENFORCE ANY PROVISION OF THIS AGREEMENT OR TO DETERMINE
THE RIGHTS OF ANY PARTY HERETO.
SECTION 12. No Assignment. The rights of any Holder pursuant to this
agreement are personal to such Holder and may not be assigned except such
rights may be assigned by a Holder only to another Holder listed on Exhibit A
hereto to whom Registrable Shares are transferred or
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in the case of shares donated or transferred without any consideration. This
Agreement shall be binding upon any successor to the Company.
SECTION 13. Headings. The descriptive headings of the sections and
subsections of this Agreement are for convenience only and do not constitute a
part of this Agreement.
SECTION 14. Counterparts. This Agreement may be executed in
counterparts and by different parties in separate counterparts. All such
counterparts shall constitute one and the same agreement and shall become
effective when one or more counterparts have been signed by each party and
delivered to the other party.
SECTION 15. Interpretation. The word "including", when used herein,
shall be deemed to mean "including, without limiting the generality of the
foregoing". When a reference is made in this Agreement to a Section, such
reference shall be to a section of this Agreement, unless otherwise indicated.
SECTION 16. Remedies; Waiver. All rights and remedies existing under
this Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available. No failure on the part of any party to exercise or delay
in exercising any remedy hereunder shall be deemed a waiver thereof, nor shall
any single or partial exercise preclude any further or other exercise of such
or any other right.
SECTION 17. Severability. Any invalidity, illegality or
unenforceability of any provision of this Agreement in any jurisdiction shall
not invalidate or render illegal or unenforceable the remaining provisions
hereof in such jurisdiction and shall not invalidate or render illegal or
unenforceable such provisions in any other jurisdiction. The Company and the
Holders shall endeavor in good faith negotiations to replace any invalid,
illegal or unenforceable provision with a valid, legal and enforceable
provision, the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provision.
SECTION 18. Amendment; Waiver. This Agreement may be amended only by
agreement in writing of the Company and the attorney in fact. No waiver of any
provision nor consent to any exception to the terms of this Agreement shall be
effective unless in writing and signed by the party to be bound and then only
to the specific purpose, extent and instance so provided.
IN WITNESS WHEREOF, the Holders and the Company have caused
this Agreement to be signed by their respective offers thereunto duly
authorized all as of the date first written above.
XXXXXXX ENTERTAINMENT [HOLDERS]
COMPANY
By:
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Name:
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Title:
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EXHIBIT A
RECORD HOLDER NUMBER OF SHARES MANNER HELD
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(cert. no.)
