AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made this 25th
day of August, 1999, by and among Xxxxxxx.xxx, Inc., an Oklahoma corporation
(the "Corporation"), and the persons listed on Schedule I hereto (collectively,
the "Holders," each a "Holder"), each of whom has executed a signature page
hereto.
W I T N E S S E T H:
WHEREAS, the execution of this Agreement by the Corporation and the
Holders is a condition to the purchase by the Holders of Series B Convertible
Preferred Stock, $.01 par value (the "Preferred Stock"), pursuant to the terms
of that certain Series B Convertible Preferred Stock Purchase Agreement of even
date herewith (the "Stock Purchase Agreement"); and
WHEREAS, on February 26, 1996, Ethos Communication Corp., an Oklahoma
corporation, the predecessor to the Corporation, and BancFirst Investment
Corp., an Oklahoma corporation ("BIC") entered into that certain
Registration Rights Agreement (the "Original Agreement");
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms shall
have the following -------------------- respective meanings:
"Commission" shall mean the Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act.
"Common Stock" shall mean the Common Stock, $.01 par value, of
the Corporation, as constituted as of the date of this Agreement.
"Corporation" shall have the meaning given to such term in the
preamble hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, or any similar federal statute, and the rules and
regulations of the Commission thereunder, all as the same shall be in
effect at the time.
"Holder" or "Holders" shall have the meaning given such term
in the preamble hereto.
"Preferred Stock" shall have the meaning given in the recitals
hereto.
"Registrable Securities" shall mean the shares of Common Stock
held by a Holder or issuable upon conversion of the Preferred Stock
held by the Holders, as adjusted for events under Section 8, but
excluding securities which have been: (a) registered under the
Securities Act pursuant to an effective registration statement filed
thereunder and disposed of in accordance with the registration
statement covering them or (b) publicly sold pursuant to Rule 144 under
the Securities Act.
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"Registration Expenses" shall mean the expenses so described
in Section 6.
"Securities Act" shall mean the Securities Act of 1933, as
amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, all as the same shall be in effect at the
time.
"Selling Expenses" shall mean the expenses so described in
Section 4.
2. Notice of Proposed Transfer. Prior to any proposed transfer of any
Registrable Securities (other than under the circumstances described in Sections
3 or 4), the Holder thereof shall give written notice to the Corporation of its
intention to effect such transfer. Each such notice shall describe the manner of
the proposed transfer and, if requested by the Corporation, shall be accompanied
by an opinion of counsel satisfactory to the Corporation to the effect that the
proposed transfer may be effected without registration under the Securities Act
and any applicable state securities laws, whereupon the Holder shall be entitled
to transfer such stock in accordance with the terms of its notice; provided,
however, that no such opinion of counsel shall be required for a transfer to an
affiliated corporation, partnership, limited liability companpy or limited
liability partnership. Each certificate for Shares transferred as above provided
shall bear an appropriate restrictive legend required under the Securities Act,
except that such certificate shall not bear such legend if: (i) such transfer is
in accordance with the provisions of Rule 144 (or any other rule permitting
public sale without registration under the Securities Act); or (ii) the opinion
of counsel referred to above is to the further effect that the transferee and
any subsequent transferee (other than an affiliate of the Corporation) would be
entitled to transfer such securities in a public sale without registration under
the Securities Act. The restrictions provided for in this Section 2 shall not
apply to securities which are not required to bear such legend.
3. Required Registration. (a) At any time, or from time to time
following the earlier to occur of: (i) six (6) months following the closing of
an initial public offering, or (ii) the fourth anniversary of this Agreement,
the Holders constituting at least 50% of the total Registrable Securities then
outstanding may request the Corporation to register under the Securities Act all
or any portion of the Registrable Securities held by the requesting Holders for
sale in the manner specified in such notice, provided that the number of
Registrable Securities for which registration has been requested shall
constitute at least 20% of the total Registrable Securities originally issued to
the requesting Holders if the requesting Holders shall request the registration
of less than all shares of Registrable Securities then held by them (or any
lesser percentage if the reasonably anticipated aggregate price to the public of
such public offering would exceed $10,000,000); provided, however, such
registration shall be required only if the aggregate offering price of such
offering exceeds $15,000,000. The only securities which the Corporation shall be
required to register pursuant hereto shall be shares of Common Stock, provided,
however, that, in any underwritten public offering contemplated by this Section
3 or Section 4, the Holders of Preferred Stock shall be entitled to sell such
Preferred Stock to the underwriters for conversion, exercise and sale of the
shares of Common Stock issued upon conversion or exercise thereof.
Notwithstanding anything to the contrary contained herein, no request may be
made under this Section 3 within 120 days after the effective date of a
registration statement filed by the Corporation covering a firm commitment
underwritten public offering in which the requesting Holders shall have been
entitled to join pursuant to Section 4 and in which there shall have been
effectively registered all Registrable Securities as to which registration shall
have been requested.
(b) Following receipt of notice under Section 3(a), the
Corporation shall immediately notify all Holders of Registrable Shares from whom
notice has not been received and shall use its best efforts to register under
the Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting Holders, the number of Registrable
Securities specified in such notice (and in all notices received by the
Corporation from other Holders within 30 days after the giving of such notice by
the Corporation). If such method of disposition shall be an underwritten public
offering, the requesting Holders of a majority of Registrable Securities to be
sold in such offering may designate the managing underwriter of such offering,
subject to the approval of the Corporation, which approval shall not be
unreasonably withheld or delayed. The Corporation shall be obligated to register
Registrable Securities pursuant to Section 3(a) on two occasions only, provided,
however, that such obligation shall be deemed satisfied only when a registration
statement covering all Registrable Securities specified in notices received as
aforesaid, for sale in accordance with the method of disposition specified by
the requesting Holders, shall have become effective and, if such method of
disposition is a firm commitment underwritten public offering, all such shares
shall have been sold pursuant thereto.
(c) If at any time during one six (6) month period (i) a
Holder or Holders request that the Corporation file a registration statement on
Form S-3 or any successor thereto for a public offering of all or any portion of
the shares of Registrable Securities held by such requesting Holder or Holders,
the reasonable anticipated aggregate price to the public of which would exceed
$15,000,000 (net of allowances, discounts, and underwriting expenses); and (ii)
the Corporation is a registrant entitled to use Form S-3 or any successor
thereto to register such shares, then the Corporation shall use its best efforts
to register under the Securities Act on Form S-3 or any successor thereto for
public sale in accordance with the method of disposition specified in such
notice, the number of shares of Registrable Securities specified in such notice.
Whenever the Corporation is required by this Section 3(c) to use its best
efforts to effect the registration of Registrable Securities, each of the
procedures and requirements of this Section 3 (including but not limited to the
requirement that the Corporation notify all Holders of Registrable Securities
from whom notice has not been received and provide them with the opportunity to
participate in the offering) shall apply to such registration, provided,
however, that there shall be no limitation on the number of registrations on
Form S-3 which may be requested and obtained under this Section 3(c), and
provided, further, however, that the requirements contained in the first
sentence of Section 3(a) shall not apply to any registration on Form S-3 which
may be requested and obtained under this Section 3(c).
(d) The Corporation shall be entitled to include in any
registration statement referred to in this Section 3, for sale in accordance
with the method of disposition specified by the requesting Holder, shares of
Common Stock to be sold by the Corporation for its own account, except as and to
the extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the shares to be sold. Except for registration
statements on Form X-0, X-0 or any successor forms thereto, the Corporation will
not file with the Commission any other registration statement with respect to
its Common Stock, whether for its own account or that of other shareholders,
from the date of receipt of a notice from requesting holders pursuant to this
Section 3 until the completion of the period of distribution of the registration
contemplated thereby.
4. Incidental Registration. If the Corporation at any time (other than
pursuant to Section 3) proposes to register any of its securities under the
Securities Act for sale to the public, whether for its own account or for the
account of other security holders or both (except with respect to registration
statements on Forms X-0, X-0 or another form not available for registering the
Registrable Securities for sale to the public), each such time it will give
written notice to the Holders at least 30 days prior to such filing of its
intention to do. Upon the written request of any such Holder, received by the
Corporation within 30 days after the giving of any such notice by the
Corporation, to register any of its Registrable Securities, the Corporation will
use its best efforts to cause the Registrable Securities as to which
registration shall have been so requested to be included in the securities to be
covered by the registration statement proposed to be filed by the Corporation,
all to the extent requisite to permit the sale or other disposition by the
Holders of the Registrable Securities so registered. In the event that any
registration pursuant to this Section 4 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of Registrable
Securities to be included in such an underwriting may be reduced (pro rata among
the requesting Holders based upon the number of Registrable Securities owned by
such Holders) if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold by the Corporation therein, provided, however, (i) such
number of Registrable Securities shall not be reduced if any Registrable
Securities are to be included in such underwriting for the account of any person
other than the Corporation or the requesting Holders; (ii) the shares held by
officers of the Corporation shall be reduced before any held by Holders are
reduced; and (iii) in no event may less than 30% of the total number of shares
of Common Stock to be sold in such underwriting be made available for
Registrable Securities held by the requesting Holders. Notwithstanding the
foregoing provisions, the Corporation may withdraw any registration statement
referred to in this Section 4 without thereby incurring any liability to the
Holders.
5. Registration Procedures. If and whenever the Corporation is
required by the provisions of ------------------------ Sections 3 or 4 to
use its best efforts to effect the registration of any shares of
Registrable Securities under the Securities Act, the Corporation will, as
expeditiously as possible:
(a) prepare and file with the Commission a registration
statement (which, in the case of an underwritten public offering pursuant to
Section 3(a) shall be on Form S-1 or other form of general applicability
satisfactory to the managing underwriter selected as therein provided) with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(b) 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 for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement in accordance with the Holders' intended
method of disposition set forth in such registration statement for such period;
(c) furnish to each Holder and to each underwriter such number
of copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) as such persons reasonably may request
in order to facilitate the public sale or other disposition of the Registrable
Securities covered by such registration statement;
(d) use its best efforts to register or qualify the
Registrable Securities covered by such registration statement under the
securities or "blue sky" laws of such jurisdictions as the Holders or, in the
case of an underwritten public offering, the managing underwriter, reasonably
shall request, provided, however, that the Corporation shall not for any such
purpose be required to qualify generally to transact business as a foreign
corporation in any jurisdiction where it is not so qualified or to consent to
general service of process in any such jurisdiction;
(e) use its best efforts to list the Registrable Securities
covered by such registration statement with any securities exchange on which the
Common Stock of the Corporation is then listed;
(f) immediately notify each Holder and each underwriter under
such registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the happening of any event
of which the Corporation has knowledge as a result of which the prospectus
contained 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
light of the circumstances then existing;
(g) if the offering is underwritten and at the request of a
Holder, use its best efforts to furnish on the date that Registrable Securities
are delivered to the underwriters for sale pursuant to such registration: (i) an
opinion dated such date of counsel representing the Corporation for the purposes
of such registration, addressed to the underwriters and to the Holders, stating
that such registration statement has become effective under the Securities Act
and that (A) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus and each amendment or supplement
thereof comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as to
financial statements contained therein) and (C) to such other effects as
reasonably may be requested by counsel for the underwriters or by such seller or
its counsel; and (ii) a letter dated such date from the independent public
accountants retained by the Corporation, addressed to the underwriters and the
Holders, stating that they are independent public accountants within the meaning
of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Corporation included in the registration statement
or the prospectus, or any amendment or supplement thereof, comply as to form in
all material respects with the applicable accounting requirements of the
Securities Act, and such letter shall additionally cover such other financial
matters (including information as to the period ending no more than five
business days prior to the date of such letter) with respect to such
registration as such underwriters reasonably may request; and
(h) make available for inspection by each Holder, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by any Holder or
underwriter, all financial and other records, pertinent corporate documents and
properties of the Corporation, and cause the Corporation's officers, directors
and employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
For purposes of Section 5(a) and 5(b), the period of distribution of
Registrable Securities in a firm commitment underwritten public offering shall
be deemed to extend until each underwriter has completed the distribution of all
securities purchased by it, and the period of distribution of Registrable
Securities in any other registration shall be deemed to extend until the earlier
of the sale of all Registrable Securities covered thereby and 120 days after the
effective date thereof.
In connection with each registration hereunder, each Holder will
furnish to the Corporation in writing such information with respect to it and
the proposed distribution by it as reasonably shall be necessary in order to
assure compliance with federal and applicable state securities laws.
In connection with each registration pursuant to Sections 3 and 4
covering an underwritten public offering, the Corporation and each Holder agree
to enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Corporation's size and investment stature.
6. Expenses. All expenses incurred by the Corporation in complying with
Sections 3 and 4, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Corporation, fees and expenses (including Corporation
counsel fees) incurred in connection with complying with state securities or
"blue sky" laws, fees of the National Association of Securities Dealers, Inc.,
transfer taxes, fees of transfer agents and registrars, costs of insurance and
fees and disbursements of one counsel for the Holders, but excluding any Selling
Expenses, are called "Registration Expenses." All underwriting discounts and
selling commissions applicable to the sale of Shares are called "Selling
Expenses".
The Corporation will pay all Registration Expenses in connection with
each registration statement under Sections 3 or 4. All Selling Expenses in
connection with each registration statement under Sections 3 or 4 shall be borne
by the Holders in proportion to the number of shares sold by them to the number
of shares sold by participating sellers other than the Corporation (except to
the extent the Corporation shall be a seller) as they may agree.
7. Indemnification and Contribution. (a) In the event of a registration
of any of the Registrable Securities under the Securities Act pursuant to
Sections 3 or 4, the Corporation will indemnify and hold harmless each Holder,
each underwriter of such Registrable Securities thereunder and each other
person, if any, who controls each such Holder or such underwriter within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such seller, 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 was registered under the Securities Act pursuant to
Sections 3 or 4, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise 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,
and will reimburse each such Holder, each such underwriter and each such
controlling person for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim, damage,
liability or action, provided, however, that the Corporation will not be liable
in any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by such Holder, any such underwriter or any such controlling person in
writing specifically for use in such registration statement or prospectus.
(b) In the event of a registration of any of the Registrable
Securities under the Securities Act pursuant to Sections 3 or 4, each Holder
will indemnify and hold harmless the Corporation, each person, if any, who
controls the Corporation within the meaning of the Securities Act, each officer
of the Corporation who signs the registration statement, each director of the
Corporation, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims, damages or
liabilities, joint or several, to which the Corporation or such officer,
director, 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
the registration statement under which such Registrable Securities was
registered under the Securities Act pursuant to Sections 3 or 4, any preliminary
prospectus or final prospectus contained therein, or any amendment or supplement
thereof, or arise 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, and will reimburse the Corporation and
each such officer, director, underwriter and controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action, provided, however,
that such Holder will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such Holder, as a seller, furnished in writing to the Corporation by such Holder
specifically for use in such registration statement or prospectus, and provided,
further, however, that the liability of such Holder hereunder shall be limited
to the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of the shares sold by
such Holder under such registration statement bears to the total public offering
price of all securities sold thereunder, but not in any event to exceed the
proceeds received by such Holder from the sale of Registrable Securities covered
by such registration statement.
(c) Promptly after receipt by the indemnified party of notice
of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 7 and shall only relieve it
from any liability which it may have to such indemnified party under this
Section 7 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 7 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, provided,
however, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(d) In order to provide for just and equitable contribution to
joint liability under the Securities Act in any case in which either (i) a
Holder, or any controlling person thereof, makes a claim for indemnification
pursuant to this Section 7 but it is judicially determined (by the entry of a
final judgment or decree by a court of competent jurisdiction and the expiration
of time to appeal or the denial of the last right of appeal) that such
indemnification may not be enforced in such case notwithstanding the fact that
this Section 7 provides for indemnification in such case, or (ii) contribution
under the Securities Act may be required on the part of such Holder or any such
controlling person in circumstances for which indemnification is provided under
this Section 7; then, and in each such case, the Corporation and such Holder
will contribute to the aggregate losses, claims, damages or liabilities to which
they may be subject (after contribution from others) in such proportion so that
such Holder is responsible for the portion represented by the percentage that
the public offering price of its Registrable Securities offered by the
registration statement bears to the public offering price of all securities
offered by such registration statement, and the Corporation is responsible for
the remaining portion; provided, however, that, in any such case, (A) such
Holder will not be required to contribute any amount in excess of the public
offering price of all such Registrable Securities offered by it pursuant to such
registration statement; and (B) no person or entity guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
8. Changes in Capital Stock. If, and as often as, there is any change
in the Common Stock of the Corporation by way of a stock split, stock dividend,
combination or reclassification, or through a merger, consolidation,
reorganization or recapitalization, or by any other means, appropriate
adjustment shall be made in the provisions hereof so that the rights and
privileges granted hereby relative to the Registrable Securities shall continue
with respect to the Common Stock as so changed.
9. Rule 144 Reporting. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Securities to the public without registration, at all
times after 90 days after any registration statement covering a public offering
of securities of the Corporation under the Securities Act shall have become
effective, the Corporation agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Corporation under
the Securities Act and the Exchange Act; and
(c) furnish to each Holder forthwith upon request a written
statement by the Corporation as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Corporation, and such
other reports and documents so filed by the Corporation as such holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such Holder to sell any Registrable Securities without
registration.
10. Representations and Warranties of the Corporation. The Corporation
represents and warrants to
---------------------------------------------------
each Holder as follows:
(a) The execution, delivery and performance of this Agreement
by the Corporation have been duly authorized by all requisite corporate action
and will not violate any provision of law, any order of any court or other
agency of government, the Certificate of Incorporation or Bylaws of the
Corporation or any provision of any indenture, agreement or other instrument to
which it or any or its properties or assets is bound, conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a default
under any such indenture, agreement or other instrument or result in the
creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Corporation.
(b) This Agreement has been duly executed and delivered by the
Corporation and constitutes the legal, valid and binding obligation of the
Corporation, enforceable in accordance with its terms.
11. Miscellaneous.
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(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including
without limitation transferees of any Registrable Securities), whether so
expressed or not.
(b) Any notice relating to this Agreement shall be deemed
sufficiently given and served for all purposes if given by a telegram filed,
charges prepaid, or a writing deposited in the United States mail, postage
prepaid and registered or certified within the Continental United States,
addressed as follows:
If to the Corporation: Xxxxxxx.xxx, Inc.
00000 Xxxxx Xxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
If to a Holder: To the Address Set Forth on Schedule I
Any notice so duly send by mail shall be deemed given two (2) days
after deposit in a proper governmental mailing facility and any notice given by
telegram shall be deemed given on the day such notice is delivered to the
telegram company, charges paid.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Oklahoma.
(d) This Agreement may not be amended or modified, and no
provision hereof may be waived, without the written consent of the Corporation
and the Holders who hold a majority of the Registrable Securities at the time of
such waiver.
(e) This Agreement may be executed 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.
(f) If requested in writing by the underwriters for the
initial underwritten public offering of securities of the Corporation, each
Holder shall agree not to sell publicly any Registrable Securities (other than
Registrable Securities being registered in such offering), without the consent
of such underwriters, for a period of not more than 180 days following the
effective date of the registration statement relating to such offering;
provided, however, that all persons entitled to registration rights with respect
to shares of Common Stock who are not parties to this Agreement, all other
persons selling shares of Common Stock in such offering, all persons holding in
excess of 1% of the capital stock of the Corporation on a fully diluted basis
and all executive officers and directors of the Corporation shall also have
agreed not to sell publicly their Common Stock under the circumstances and
pursuant to the terms set forth in this Section 11(f).
(g) Notwithstanding the provisions of Section 3(a), the
Corporation's obligation to file a registration statement, or cause such
registration statement to become and remain effective, shall be suspended for a
period not to exceed 60 days in any 24-month period if there exists at the time
material non-public information relating to the Corporation which, in the
reasonable opinion of the Corporation, should not be disclosed.
(h) The Corporation shall not grant to any third party any
registration rights more favorable than or inconsistent with any of those
contained herein, so long as any of the registration rights under this Agreement
remains in effect.
(i) The rights of any Holder hereunder may be assigned to (i)
any transferee who acquires 50,000 shares of Registrable Securities; (ii) a
successor entity; (iii) to an entity pursuant to a reorganization or
recapitalization of a Holder; or (iv) to a partner of a Holder.
(j) For any Registrable Securities held by any Holders, the
provisions of Sections 3 and 4 hereof shall terminate at such time as such
Registrable Securities may be sold within any three (3) month period pursuant to
Rule 144. Further, the provisions of Section 3(a) shall terminate on the fifth
anniversary of this Agreement.
(k) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first written above.
XXXXXXX.XXX, INC.
By:__________________________________________
Xxxxxx X. Xxxxx
Chief Executive Officer
RICHMONT OPPORTUNITY FUND, L.P.
By: Richmont Opportunity Management Partners, L.P.,
its General Partner
By: Richmont Investment Management,L.L.C.,
its General Partner
By: /s/ J. Xxxxx Xxxxxxxxx
--------------------------
Title: President
RICHMONT OPPORTUNITY PARTNERS, LTD.
By: Richmont Opportunity Management Partners,
L.P., its Attorney-in-Fact
By: Richmont Investment Management,L.L.C.,
its General Partner
By: /s/ J. Xxxxx Xxxxxxxxx
--------------------------
Title: President
BANCFIRST INVESTMENT CORPORATION
By:_____________________________________
T. Xxxx Xxxxxx, President
-----------------------------------------
Xxxxxx X. Xxxxx
----------------------------------------
Xxxx Xxxxx
-------------------------------------------
Xxxx Xxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxxx, Xx., M.D.
---- -----------------------------------
Xxxxxxx X. Xxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxx
--------------------------------------------
Xxxxx X. Odor
--------------------------------------------
Xxxxxx X. Xxxxx
--------------------------------------------
*Xxxxxxx Xxxxx
--------------------------------------------
*Xxxxxx Xxxxx Xxxxx
---------------------------
*Xxxxxxx Xxxx Xxxxxx Xxxxxx
---------------------------
*Xxxxxxx X. Xxxxxxx
---------------------------
*Xxxxx Xxxxxx
---------------------------
*Xxxxx Xxxxxx
RICHMONT TRADING ASIA-PACIFIC LIMITED
By:______________________________________________
------------------------------------------
*Xxxxxxx X. Xxxxxxxx
----------------------------------------------
Xxxx X. Xxxxxxxx
---------------------------------------------
J. Xxxxx Xxxxxxxxx
---------------------------------
*By J. Xxxxx Xxxxxxxxx, Attorney-in-Fact
SCHEDULE I
HOLDERS OF SERIES B CONVERTIBLE PREFERRED STOCK
Richmont Opportunity Fund, L.P.
c/o J. Xxxxx Xxxxxxxxx
00000 Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Richmont Opportunity Partners, Ltd.
c/o J. Xxxxx Xxxxxxxxx
00000 Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Xxxxxx X. Xxxxx
0000 X.X. 000xx
Xxxxxx, Xxxxxxxx 00000-0000
Xxxx Xxxxx
00000 Xxxx Xxxxxxxx Xx.
Xxxxx Xxxx, Xxxxx Xxxxxx 00000
Xxxx Xxxxx
0000 Xxxxxxxxxx Xx. Xxxx
Xxxxx Xxxx, Xxxxx Xxxxxx 00000
Xxxxxx X. Xxxxxxxx, M.D.
0000 Xxxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxx
0000 Xxxxx Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxxxx
00000 X. Xxxxxx Xxxxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Xxxxx X. Odor
0000 X.X. 00xx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxx
0000 X.X. 000xx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Xxxxxxx Xxxxx
00000 Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Xxxxxx Xxxxx Xxxxx
00000 Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
Xxxxxxx Xxxx Xxxxxx Xxxxxx
00000 Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Richmont Trading Asia-Pacific Limited
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Xxxxxxx X. Xxxxxxxx
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Xxxx X. Xxxxxxxx
0000 Xxx X Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
J. Xxxxx Xxxxxxxxx
00000 Xxxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxx 00000
