AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this "Agreement"),
dated as of December 24, 1996, is between PMC International, Inc., a Colorado
corporation (the "Company") and Bedford Capital Financial Corporation, a
corporation organized under the laws of Liberia ("Bedford"), and amends and
restates in its entirely that certain Registration Rights Agreement between the
same parties dated as of July 26, 1995 (the "Original Agreement").
RECITALS
A. Concurrent with the execution and delivery of this Agreement, the Company is
effecting the closing of a private placement (the "Offering") of its common
stock, par value $.01 per share ("Common Stock"), pursuant to the terms of the
Private Placement Memorandum dated November 11, 1996, as amended. Closing of
the Offering is conditioned upon effectiveness of the restructuring of the
relationship of the Company and its subsidiaries with Bedford (the
"Restructuring") as reflected in this Agreement and the Restructuring Agreement
dated as of the date hereof among Bedford, the Company and the Company's
subsidiaries.
B. In connection with the Restructuring, Bedford and the Company have agreed to
modify the Original Agreement in the manner provided herein, to be effective
upon closing of the Offering. The Company has agreed to register certain
securities of Bedford in connection with a registration statement being filed
with the Securities and Exchange Commission (the "Commission") pursuant to that
certain Registration Rights Agreement (the "Registration Rights Agreement")
dated as of the date hereof among the Company, Xxxxx, Xxxxxxxx & Xxxxx, Inc.,
certain persons who made bridge loans to the Company in November 1996 and
subscribers for shares of Common Stock in the Offering.
AGREEMENT
The parties hereto agree that the Original Agreement is hereby amended and
restated to read in its entirety as follows:
Section 1. Demand Registration Rights.
(a) The Company shall, within 45 calendar days after the date hereof, file a
"shelf registration" statement (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Securities Act"), covering the
Registrable Securities (as defined below) and all shares
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of Common Stock and other securities which the Company may elect to register on
behalf of other persons and shall use its best efforts to have such
Registration Statement declared effective by the Commission. The Company agrees
to use its best efforts to keep the Registration Statement continuously
effective for the period commencing on the date of effectiveness and ending on
the date it is no longer required to maintain effectiveness under the
Registration Rights Agreement, but in any event until the earlier to occur of
(i) the date when each of the Registrable Securities ceases to be Registrable
Securities and (ii) the date when each of the Registrable Securities not
otherwise transferred or sold pursuant to the Registration Statement may be
sold or distributed by the holder thereof in reliance upon Rule 144 (giving
effect to all conditions thereof, including, without limitation, the volume
limitations contained in Rule 144(e)). The Company shall pay all registration
expenses incurred in connection with the Registration Statement as contemplated
by the Registration Rights Agreement, but Bedford shall pay all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such holder's Registrable Securities pursuant to the
Registration Statement. For purposes of this Agreement, "Registrable
Securities" means any and all shares of Common Stock held by Bedford on the
date hereof (including shares issued in the Restructuring), any and all shares
of Common Stock acquired by Bedford directly from the Company or an affiliate
of the Company in an unregistered transaction not involving any public
offering, including shares of Common Stock issued upon exercise of warrants
issued to Bedford as part of the Restructuring and any securities issued or
issuable with respect to any Common Stock referred to above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
Securities will cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (ii) they shall have been
distributed to the public pursuant to Rule 144 (or any successor provision)
under the Securities Act, (iii) they shall have been otherwise transferred, new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by the Company and subsequent disposition of them shall not
require registration or qualification of them under the Securities Act or any
similar state law then in force, or (iv) they shall have ceased to be
outstanding.
(b) Bedford may at any time while the Registration Statement is effective,
request that the Company amend or supplement the Registration Statement to
effect a distribution of its shares of Common Stock to its shareholders;
provided, that the Company shall not be obligated
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to effect any such amendment or supplement if such action would in any way
adversely affect the rights of the holders of Registrable Securities (as such
term is defined in the Registration Rights Agreement).
(c) At any time or from time to time after the Registration Statement is no
longer effective, Bedford may request that the Company effect the registration
under the Securities Act of Bedford's Registrable Securities. The Company shall
file as soon as practicable, and in any event within sixty (60) days of the
receipt of such request, and use its best efforts to cause to become effective
as soon as practicable, the registration under the Securities Act of all
Registrable Securities for which Bedford has requested registration. The
registration requested pursuant to this Section 1(c) shall be referred to
herein as "Demand Registration." Bedford shall have two rights to request
Demand Registrations. The Company will not include in any Demand Registration
any securities other than Bedford's Registrable Securities without the prior
written consent of Bedford. In the case of any underwritten public offering
being effected pursuant to a Demand Registration, the underwriter or
underwriters with respect to such offering shall be selected by Bedford. If at
any time of any request to register Registrable Securities pursuant to this
Section 1, the Company is engaged or has firm plans to engage within 60 days of
the time of the request in a registered public offering as to which Bedford may
seek to include Registrable Securities pursuant to piggyback rights under
Section 2, then the Company may, at its option, direct that such request may be
delayed for a period not in excess of 6 months from the effective date of such
offering, such right to delay a request to be exercised by the Company not more
than once in any 12 month period.
Section 2. Piggyback Registration Rights. Whenever the Company proposes to
register any of its securities under the Securities Act (other than pursuant to
a Demand Registration and other than a registration on Form S-8 of securities
issuable pursuant to employee benefit plans) and the registration form to be
used may be used for the registration of the Common Stock (a "Piggyback
Registration"), the Company will give prompt written notice to Bedford of its
intention to effect such a registration and will include in such registration
all of Bedford's Registrable Securities with respect to which the Company has
received a written request for inclusion therein within fifteen (15) days after
the receipt of the Company's notice. In the event that any negotiation pursuant
to a Piggyback Registration shall be, in whole or in part, an underwritten
public offering, Bedford shall have the right to elect that its Registrable
Securities be included in the underwriting on the same terms and conditions as
the shares of the Company otherwise being sold through underwriters under such
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registration. If a Piggyback Registration is an underwritten primary
registration by the Company, and Bedford's Registrable Securities requested for
inclusion pursuant to this Section 2 would constitute more than 25% of the
total number of shares to be included in a proposed underwritten public
offering, and the managing underwriter advises the Company in writing that in
its reasonable opinion the number of securities requested to be included in
such registration exceeds the number which can be sold in such offering, the
Company will include in such registration, in order of priority, the following
(i) first, the securities the Company proposes to sell, (ii) second, the
Registrable Securities requested by Bedford to be included in such
registration, and (iii) third, other securities requested to be included in
such registration by persons other than Bedford, provided, however, that the
shares of Bedford's Registrable Securities to be included in such offering
shall constitute at least 25% of the total number of shares to be included in
such offering.
3. Registration Procedures. Except for the filing of the Registration
Statement, which is being effected pursuant to the Registration Rights
Agreement and which will be governed by the registration procedures specified
in the Registration Rights Agreement, if and whenever the Company is required
by the provisions of this Agreement to register any of Bedford's Registrable
Securities under the Securities Act, the Company will, as expeditiously as
possible:
(a) Prepare and file with the Commission a registration statement with respect
to such securities and cause or use its best efforts to cause such registration
statement to become and remain effective for the period of the distribution
contemplated thereby, provided that before filing a registration statement or
prospectus or any amendments or supplements thereto, the Company will furnish
to Bedford's counsel copies of all documents proposed to be filed;
(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
of distribution contemplated and to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such registration statement in accordance with Bedford's intended method of
disposition set forth in such registration statement for such period;
(c) furnish to Bedford and to each underwriter such number of copies of the
registration statement the prospectus included therein (including each
preliminary prospectus), all post-effective amendments and such other documents
as such persons may reasonably request in
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order to facilitate the public sale or other disposition of the securities
covered by such registration statement;
(d) use its best efforts to register or qualify the securities covered by such
registration statement under the securities or blue sky laws of such
jurisdictions as Bedford, or in the case of an underwritten public offering,
the managing underwriter, shall reasonably request, provided that the Company
shall not be required in connection therewith or as a condition thereto to
qualify to do business in any jurisdiction where it is not so qualified or to
take any action which would subject it to taxation or general service of
process in any jurisdiction where it is not otherwise subject to such taxation
or general service of process;
(e) notify Bedford 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 statements has been filed;
(f) notify Bedford promptly of any request by the Commission for the
amending or supplementing of such registration statement or prospectus
or for additional information;
(g) prepare and file with the Commission, promptly upon the request of Bedford,
any amendments or supplements to such registration statement or prospectus
which, in the opinion of counsel for Bedford is required under the Securities
Act or the rules and regulations thereunder in connection with the distribution
of the Registrable Securities by Bedford;
(h) advise Bedford promptly after it shall receive notice or obtain knowledge
thereof, of the issuance of any stop order by the Commission suspending the
effectiveness of a registration statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best efforts to prevent
the issuance of any stop order or obtain its withdrawal if a stop order should
be issued;
(i) not file any amendment or supplement to a registration statement or
prospectus to which Bedford shall have reasonably objected on the grounds that
such amendment or supplement does not comply in all material respects with the
requirements of the Securities Act or the rules and regulations thereunder,
after having been furnished with a copy thereof at least three business days
prior to the filing thereof;
(j) immediately notify Bedford at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus contained
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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 then existing, and, as expeditiously as
possible, amend or supplement such prospectus to eliminate the untrue statement
or the omission;
(k) use its best efforts (if the offering is underwritten) to furnish, at the
request of Bedford, on the date that securities are delivered to the
underwriters for sale pursuant to such registration; (i) an opinion dated such
date of counsel representing the Company for the purposes of such registration,
addressed to the underwriters and to Bedford, 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, and (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 express no
opinion as to financial statements and financial and statistical data contained
therein) and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters and to
Bedford, 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 Company 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;
(l) make available for inspection by Bedford, any underwriter participating in
any distribution pursuant to such registration statement, and any attorney,
accountant or other agent retained by Bedford or such underwriter, all
financial and other records, pertinent corporate documents and properties of
the Company and its subsidiaries, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by Bedford or such underwriter, attorney, accountant or
agent in connection with such registration statement;
(m) use its best efforts to cause all such securities to be listed on such
securities exchange on which similar securities issued by the Company are then
listed;
(n) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission.
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4. Registration Expenses and Indemnification.
(a) All Registration Expenses incurred in connection with (i) a Demand
Registration or (ii) a Piggyback Registration will be borne by the Company. As
used herein, "Registration Expenses" means all expenses incident to the
Company's performance of or compliance with this Agreement, including, without
limitation, all registration and filing fees, fees and expenses of compliance
with federal and state securities or blue sky laws, securities laws of any
foreign jurisdictions, printing expenses, messenger and delivery expenses and
fees and disbursements of counsel for Bedford and all independent certified
public accountants, underwriters (excluding discounts and commissions
attributable to the sale of Registrable Securities) and other persons retained
by Bedford or the Company.
(b) The Company agrees to indemnify, to the extent permitted by law, Bedford
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statement therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by Bedford expressly for use
therein or by Bedford's failure to deliver a copy of the registration statement
or prospectus or any amendments or supplements thereto in conformity with
applicable federal and state securities laws after the Company has furnished
Bedford with a sufficient number of copies of the same. In connection with an
underwritten offering, the Company will indemnify such underwriters, their
officers and directors and each person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of Bedford.
(c) In connection with any registration statement in which Bedford is
participating, Bedford shall furnish to the Company in writing such information
and affidavits as the Company reasonably requests for use in connection with
any such registration statement or prospectus and, to the extent permitted by
law, will indemnify the Company, its directors and officers and each person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities and expenses resulting from any untrue or
alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the
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statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by Bedford; provided that the liability of Bedford will be in
proportion to and limited to the net amount received by Bedford from the sale
of the Registrable Securities pursuant to such registration statement.
(d) Any party entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to which it
seeks indemnification and (ii) unless in such indemnified party's reasonable
judgment a conflict of interest between such indemnified and indemnifying
parties may exist with respect to such claim, permit such indemnifying party to
assume the defense of such claim with counsel reasonably satisfactory to the
indemnified party. If such defense is assumed, the indemnifying party will not
be subject to any liability for any settlement made by the indemnified party
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party and its
legal counsel a conflict of interest may exist between such indemnified party
and any other of such indemnified parties with respect to such claim.
(e) The indemnification provided for under this Agreement will remain in full
force and effect regardless of any investigation made by or on behalf of the
indemnified party or any officer, director or controlling person of such
indemnified party and will survive the offering of any registrable securities
of the Company in a registration statement, and otherwise.
(f) If the indemnification provided for in this Section 4 is held by a court of
competent jurisdiction to be unavailable to an indemnified party with respect
to any loss, liability, claim, damage, or expense referred to therein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage, or expense in such proportion as
is appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other in connection with the
statement or omissions that resulted in such loss, liability, claim, damage, or
expense as well as any other relevant equitable considerations. The relative
fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission to state a material fact
relates to information
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supplied by the indemnifying party or by the indemnified party and the
parties' relative intent, knowledge, access to information, and opportunity to
correct or prevent such statement or omission.
(g) Notwithstanding the foregoing, to the extent that the provisions of
indemnification and contribution contained in an underwriting agreement entered
into in connection with an underwritten public offering are in conflict with
the foregoing provisions, the provisions in the underwriting agreement shall
control.
5. Miscellaneous.
(a) All notices given hereunder shall be in writing, shall be given by
overnight courier service, telecopy, facsimile or copy delivered by hand, and,
(i) if delivered by overnight air courier service, shall be deemed received one
business day after having been deposited with such overnight air courier
service, postage prepaid, and (ii) if delivered by telex, telecopy or hand
delivery, shall be deemed received on the day the notice is sent, in each case
addressed as follows:
If to Bedford, to it at:
Bedford Capital Financial Corporation
2nd Floor
Charlotte Hs.
Xxxxxx Street
Nassau, Bahamas
Attention: Xxxxxxx X. Xxxxxx, Chairman and CEO
and Xxxxxxx X. Xxxxx, Treasurer and CFO
With a copy to:
Xxxxx X. Xxxxxx, Esq.
Xxxxx, Johnson, Robinson, Xxxx & Ragonetti, P.C.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
If to the Company, to it at:
PMC International, Inc.
000 00xx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
With a copy to:
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Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Any party may, by written notice so delivered to the others, change the address
or facsimile number to which delivery shall thereafter be made.
(b) This Agreement may be executed in any number of counterparts which
together, including those received by facsimile transmission which shall be
effective as originals, shall constitute but one and the same instrument.
(c) This Agreement constitutes and incorporates the entire agreement between
the parties concerning the subject matter hereof and supersedes and cancels any
prior or contemporaneous agreements, verbal or written, between the parties
concerning the subject matter hereof.
(d) No amendment or waiver of any provision of this Agreement shall be
effective unless the same shall be in writing and signed by each of Bedford and
the Company.
(e) The invalidity, illegality or unenforceability of any provision of this
Agreement shall not in any way affect or impair the legality or enforceability
of the remaining provisions hereof.
(f) All references in this Agreement to Sections and other subdivisions are to
Sections and other subdivisions of this Agreement unless expressly provided
otherwise. The words "this Agreement", "this instrument", "herein", "hereof",
"hereby", "hereunder" and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited.
(g) The obligations of the Company to effect registrations of securities
hereunder shall terminate at such time as Bedford beneficially owns less than
5% of the Company's issued and outstanding Common Stock (determined as provided
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act") or any equivalent successor rule but excluding Common Stock as
to which Bedford does not have any pecuniary interest determined as provided in
the rules adopted under Section 16 of the Exchange Act).
(h) This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns.
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(i) This agreement shall be governed by and construed in accordance with the
laws of the state of Colorado. Each party hereby consents to venue and
jurisdiction in the District Court in and for the City and County of Denver,
State of Colorado and in the United States District Court for the District of
Colorado with respect to any claim arising out of or in connection with this
Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed and delivered by its duly authorized officer as of the date first
written above.
PMC INTERNATIONAL, INC., a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
BEDFORD FINANCIAL CAPITAL CORPORATION, a corporation organized under
the laws of Liberia
By: /s/ X.X. Xxxxx Xxxxxx
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