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EXHIBIT 10.2
4/14/97
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made this 4
day of June 1997, by and among XXXXXX FORGE INTERNATIONAL, INC. ("Xxxxxx")
and CENTRUM INDUSTRIES, INC. ("Company").
In consideration of the mutual covenants hereinafter set forth the
Company and Xxxxxx agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms have the following meanings:
"Asset Purchase Agreement" shall mean the Asset Purchase
Agreement dated April 29, 1997, as amended May 14, 1997.
"Commission" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
"Common Stock" shall have the meaning ascribed to it in the
Asset Purchase Agreement.
"Holder" shall mean a holder of Registrable Securities.
The terms "register", "registered" and "registration" shall
refer to a registration effected by preparing and filing a registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement.
"Registrable Securities" shall mean (i) shares of Common Stock
issued under the Asset Purchase Agreement, and (ii) any Common Stock issued in
respect of such securities upon any stock split, stock dividend,
recapitalization or similar event.
"Registration Expenses" shall mean all expenses incurred by
the Company in compliance with Section 2 hereof, including, without limitation,
all registration and filing fees, printing expenses, fees and disbursement of
counsel for the Company, blue sky fees and expenses, and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company and expenses of regular
annual and
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periodic audits, which shall be paid in any event by the Company) and the
expenses associated with the Company's obligations under Section 4 hereof.
"Restricted Securities" shall refer collectively to the
securities of the Company required to bear a legend under applicable securities
laws.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time.
"Selling Expenses" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities and all
fees and disbursements of one counsel for the holders.
2. Piggyback Registration Rights
(a) If the Company shall determine to register any of its
securities either for its own account or the account of any security
holder or holders (other than a Holder), other than a registration
relating solely to employee benefit plans or pursuant to a
registration statement on Form S-4 or the then equivalent of such
form, the Company will:
(i) Promptly give to all Holders written notice thereof;
and
(ii) Except as set forth in Section 2(b), include in such
registration (and any related qualification under state blue sky laws
and other compliance filings, and in any underwriting involved
therein), all the Registrable Securities specified in a written
request or requests, given by each Holder within fifteen (15) days
after the written notice from the Company is given.
(b) If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the
Company shall so advise each Holder as part of the written notice
given pursuant to Section 2(a)(i). In such event the right of each
Holder to registration pursuant to this Section 2 shall be conditioned
upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting
to the extent provided herein. Each such Holder, together with the
Company and the other persons distributing their securities through
such underwriting, shall enter into an underwriting agreement in
customary form with the underwriter or underwriters selected or
approved for underwriting by the Company. Notwithstanding any other
provision of this Section 2, if the underwriter determines that
marketing factors require a limitation on the number of shares to be
underwritten, the underwriter may (subject to the allocation priority
set forth below) exclude from such registration and underwriting some
or all of each Holder's Registrable Securities which would otherwise
be
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underwritten pursuant hereto: The Company shall so advise all
persons requesting registration, and the number of shares of
securities that are entitled to be included in the registration and
underwriting shall be allocated in the following manner: before any
Holder shall be entitled to include Registrable Securities in the
registration, there shall first be included in such registration (i)
the number of securities which the Company proposed to offer and sell
for its own account, and (ii) securities with respect to which the
holders have requested inclusion pursuant to any and all registration
rights which have been granted by the Company prior to the date
hereof, and then, to the extent permitted by the underwriter, there
shall be included in such registration that number of securities which
persons having registration rights on parity with the Holders shall
have requested to be included in such registration, with any
limitation on the number of securities so included to be imposed pro
rata on all Holders and all other persons to the extent they request
inclusion therein. If any Holder or any officer, director or other
security holder requesting registration disapproves of the term of any
such underwriting, such person may elect to withdraw therefrom by
written notice to the Company and the underwriter. Any Registrable
Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
3. Expenses of Registration. All Registration Expenses
incurred on behalf of each Holder in connection with any registration,
qualification or compliance pursuant to this Agreement shall be borne by the
Company, and all Selling Expenses shall be borne by each Holder and all other
holders of the securities so registered and sold pro rata on the basis of the
number of their shares so registered and sold.
4. Registration Procedures. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will advise
each Holder in writing as to the initiation of each registration and as to the
completion thereof. The Company will:
(a) Keep such registration effective for a period of
ninety (90) days or until each Holder has completed the distribution
described in the registration statement relating thereto, whichever
first occurs.
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(b) Furnish such number of prospectuses and other
documents incident thereto as each Holder from time to time may
reasonably request.
(c) Register or qualify the Registrable Securities
covered by such registration under such other securities or blue sky
laws of such jurisdiction (subject to the approval of any managing
underwriter involved) as each Holder shall reasonably request, and do
any and all other acts and things which may be reasonably necessary or
advisable to enable each Holder to consummate the disposition in such
jurisdictions of the Registrable Securities; provided, however, that
the Company shall not be obligated, by reason thereof, to qualify as a
foreign corporation in any jurisdiction where it would not otherwise
be required to qualify or consent to general service of process in any
such jurisdiction or subject itself to taxation as doing business in
any such jurisdiction.
(d) Notify each Holder promptly after the Company shall
receive notice or have knowledge that any registration statement,
supplement or amendment has become effective, any registration
statement is required to be amended or supplemented, any stop order
has been issued, of the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation
of a proceeding for that purpose, or of the happening of any event as
a result of which, the prospectus included in such registration
statement as then in effect, includes an 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 in the light of the circumstances under which they were
made.
(e) Make every reasonable effort to obtain at the
earliest possible moment the withdrawal of any order suspending the
effectiveness of a registration statement or suspending the
qualification of any of the Registrable Securities for sale in any
jurisdiction.
(f) Promptly prepare and furnish to each Holder a
reasonable number of copies of a supplement to or an amendment of a
prospectus as may be necessary so that such prospectus shall not
contain 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
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misleading in light of the circumstances under which they were made.
(g) Include the Registrable Securities for listing on any
national securities exchange on which the Company's Common Stock is
listed.
(h) Make available for inspection by a representative of
each Holder, any underwriters participating in any disposition
pursuant hereto, and any attorney or accountant retained by such
Holders or such underwriters, upon reasonable notice during normal
business hours all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such representative, underwriter, attorney or
accountant in connection with such registration; provided that any
such records, information or documents that are designated by the
Company in writing as confidential shall be kept confidential by such
persons unless disclosure of such records, information or documents is
required by court or administrative order.
(i) Make generally available to its securities holders
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
5. Indemnification
(a) In the event of the registration of any Holder's
Registrable Securities under the Securities Act pursuant to this
Agreement, the Company will indemnify and hold harmless each such
Holder, each underwriter, if any, of such shares, and each other
person, if any, who controls each such Holder or any such underwriter
within the meaning of the Securities Act, against any losses, claims,
damages or liabilities, joint or several, to which each such Holder,
the underwriter or controlling person may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereto) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in any
registration statement under which such Registrable Securities were
registered under the Securities Act, any preliminary prospectus or
final prospectus contained therein (as such may be amended or
supplemented), or arise out of or are based upon the omission or
alleged omission to
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state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will
reimburse each such Holder, each such underwriter, and each such
controlling person for any legal or any other expenses reasonably
incurred by such Holder, such underwriter or controlling person, in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission
made in such registration statement, such preliminary prospectus, or
such final prospectus (as such may be amended or supplemented) in
reliance upon and in conformity with, written information furnished to
the Company by the Holder, the underwriter or controlling person
specifically for use in preparation thereof.
(b) In the event of the registration by the Company of
any Holder's Registrable Securities, such Holder will indemnify and
hold harmless the Company, each underwriter and each person who
controls the Company or any such underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which the Company, such underwriter or
controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained
in any registration statement under which such Registrable Securities
were registered under the Securities Act, any prospectus or
preliminary prospectus contained therein, or amendment or supplement
thereto, or arises out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
which untrue statement or alleged untrue statement or omission or
alleged omission was made therein in reliance upon and in conformity
with, written information furnished to the Company by such Holder
specifically for use in connection with the preparation thereof; and
will reimburse the Company, each such controlling person and each such
underwriter for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss,
claim, damage, liability or action.
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(c) Each party entitled to indemnification under this
Section 5 (the "Indemnified Party") shall give notice to the party
required to provide indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has actual knowledge of any
claim as to which indemnity may be sought, and shall permit the
Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified
Party (whose approval shall not unreasonably be withheld), and the
Indemnified Party may participate in such defense at such party's
expense, and provided further that the failure of any indemnified
Party to give notice as provided herein shall no relieve the
Indemnifying Party of its obligations under this Section 5. No
indemnifying Party, in the defense of any such claim of litigation,
shall, except with the consent of each 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.
6. Information by Holder. Each Holder shall furnish in writing
to the Company such information regarding such Holder as the Company may
reasonably request and as shall be reasonably required in connection with
any registration, qualification or compliance referred to in this Agreement.
7. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may permit
the sale of the Restricted Securities to the public without registration, the
Company agrees to:
(a) Use its best efforts to make and keep public
information available, as those terms are understood and defined in
Rule 144 under the Securities Act, at all times from and after ninety
(90) days following the effective date of the registration under the
Securities Act filed by the Company for an offering of its securities
to the general public;
(b) Use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company
under the Securities Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act") at any time during which it is subject to
such reporting requirements; and
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(c) So long as any Holders own any Restricted Securities,
furnish to each requesting Holder forthwith upon request a written
statement by the Company as to its compliance with the reporting
requirements of Rule 144 (at any time from and after ninety (90) days
following the effective date of the registration statement filed by
the Company for an offering of its securities to the general public),
and of the Securities Act and the Exchange Act (at any time during
which it is subject to such reporting requirements), a copy of the
most recent annual or quarterly report of the Company, and such other
reports and documents so filed as such Holder may reasonably request
in availing itself of an) rule or regulation of the Commission
allowing such Holder to sell any such securities without registration.
8. Transfer of Registration Rights. The right to cause the
Company to register Registrable Securities pursuant to this Agreement may not
be assigned without the consent of the Company.
9. "Market Stand-Off" Agreement. Each Holder agrees, if
requested by the Company and the underwriter of Common Stock (or other
securities) of the Company, not to sell or otherwise transfer or dispose of any
Common Stock (or other securities) of the Company held by him during such
period of time as may be required by the underwriter (but no more than one
hundred eighty (180) days) following the effective date of any registration
statement of the Company filed under the Securities Act with respect to any
underwritten public offering of securities by the Company, provided that the
Company's officers and directors and a majority of other holders of securities
of the Company shall also enter into similar agreements. Such agreement shall
be in writing in a form satisfactory to the Company and such underwriter. The
Company may impose stop-transfer instructions with respect to the securities
subject to the foregoing restrictions until the end of said one hundred eighty
(180) day period.
10. Termination of Registration Rights. The right to cause the
Company to register securities granted by the Company under this Agreement
shall terminate with respect to any Holder at such time as all of the
Registrable Securities of such Holder can be sold (in a single transaction) in
accordance with Rule 144.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first above written.
CENTRUM INDUSTRIES, INC.
By /s/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX, Chief Executive
Officer and President
The foregoing Agreement is hereby agreed to as of the date thereof.
XXXXXX FORGE INTERNATIONAL,
INC.
By /s/ Xxxxxx X. Xxxxxxxx
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XXXXXX X. XXXXXXXX, President
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