1
Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
DATED: December 17, 1996
BETWEEN: Protection One, Inc.,
a Delaware corporation
0000 X.X. Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxx 00000 ("POI")
AND: Xxxxxxxx Electronics, Inc.
0000 X.X. Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000 (the "Shareholder")
RECITALS:
A. Pursuant to that certain Asset Purchase Agreement
dated December 17, 1996, among Protection One Alarm Monitoring, Inc.
("Monitoring"), Shareholder, Xxxxxx X. Xxxxxxxxx and Xxxxxxx X. Xxxxxxxxx,
Trustees of the XXXXXXXXX LIVING TRUST dated November 21, 1989, and any
amendments thereto, and Xxxxxx X. Xxxxxxxxx, also known as Xxxxxx X. Xxxxxxxx
(the "Purchase Agreement"), POI (i) will issue and sell on the Closing Date
(defined in the Purchase Agreement) to Shareholder such number of shares of the
Common Stock, par value $.01 per share of POI ("Common Stock"), the Closing
Value (defined in the Purchase Agreement) of which equals Two Million Dollars
($2,000,000) (the "Registrable Shares"); and (ii) has agreed to file with the
Securities and Exchange Commission, as soon as possible, a registration
statement on Form S-3 (as from time to time amended, the "Registration
Statement") registering the offer and sale by Shareholder from time to time of
the Registrable Shares included therein (the "Registered Shares"); and
B. Section 2.5 of the Purchase Agreement contemplates
that the Shareholder will enter into this Agreement to further define its
rights and responsibilities with respect to the Registrable Shares.
NOW, THEREFORE, in consideration of the foregoing and of the
covenants and agreements contained in this Registration Rights Agreement (the
"Agreement"), the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the
following terms have the following respective meanings:
1.1 Business Day: any day that is not a
Saturday, Sunday or bank holiday in California.
1.2 Commission: the Securities and Exchange
Commission, or any other federal agency at the time administering the
Securities Act.
1.3 Exchange Act: the Securities Exchange Act of
1934, as amended, or any similar federal statute, and the rules and regulations
of the Commission thereunder, as they each may from time to time be in effect.
Reference to a particular section of the Exchange Act shall include a reference
to the comparable section, if any, of any such similar federal statute.
Page 1 - REGISTRATION RIGHTS AGREEMENT
2
1.4 Registered Shares: the meaning specified in
Recital A.
1.5 Registrable Shares: the meaning specified in
Recital A.
1.6 Registration Statement: the meaning
specified in Recital A.
1.7 Securities Act: the Securities Act of 1933,
as amended, or any similar federal statute, and the rules and regulations of
the Commission thereunder, as they may each from time to time be in effect.
References to a particular section of the Securities Act shall include a
reference to the comparable section, if any, of such similar federal statute.
2. Obligations of POI. POI shall:
2.1 Registration. File the Registration
Statement with the Commission within five (5) business days of the date of this
Agreement, and thereafter use all reasonable efforts to cause the Registration
Statement to be declared effective as soon as possible.
2.2 Amendments and Supplements. Use all
reasonable efforts to prepare and file with the Commission all 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 to comply with the provisions of the Securities Act with respect
to the disposition of Registered Shares for a period of two (2) years or, if
earlier, until such time as all of such Registered Shares either (i) have been
disposed of by the seller or sellers thereof in accordance with the intended
methods of disposition thereof or (ii) are eligible for distribution to the
public pursuant to Rule 144 (or any successor rule) under the Securities Act;
provided, however, that such two (2) year period shall be extended for a period
of time equal to the period Shareholder refrains from selling Registered Shares
at the request of POI or of an underwriter of Common Stock (or other securities
of POI) pursuant to the provisions hereof.
2.3 Copies of Prospectus. Furnish to Shareholder
such numbers of copies of the prospectus contained in such Registration
Statement (including each preliminary prospectus and any summary prospectus) as
Shareholder may reasonably request in order to effect the sale of the
Registered Shares to be offered and sold by Shareholder, but only while POI is
required to cause the Registration Statement to remain effective and usable.
2.4 Blue Sky Laws. Use all reasonable efforts to
register or qualify the offering of Registrable Shares covered by the
Registration Statement under the securities laws of such states as the
Shareholder(s) shall reasonably request; provided, however, that POI shall not
be required in connection with this Section 2.4 to qualify generally to do
business as a foreign corporation under the laws of any jurisdiction in which
POI is not then so qualified, or to file any general consent to service of
process or to take any other action that would subject POI to general service
of process in any jurisdiction in which POI is not then so subject.
2.5 Amendment to Prospectus. Notify Shareholder
at any time when a prospectus relating to such registration is required under
the Securities Act to be delivered of the happening of an event that requires
the making of a change in such prospectus as then in effect, or the related
Registration Statement, in order that such document(s) will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, and Shareholder thereupon shall immediately cease making offers and
sales of Registrable Shares pursuant to the Registration Statement or
deliveries of the prospectus contained therein for any purpose, and if
requested by
Page 2 - REGISTRATION RIGHTS AGREEMENT
3
POI, shall return to POI all copies of such prospectus not theretofore
delivered by Shareholder to third parties. After securing such approvals as
may be necessary, POI shall promptly prepare, file with Commission and furnish
to Shareholder revised prospectuses or such supplements to or amendments of the
prospectus as POI may deem necessary, and following their receipt of the same,
Shareholder shall be free to resume making offers of the Registered Shares.
2.6 Stop Orders. Notify Shareholder of any stop
order or any similar proceeding initiated by any federal or state regulatory
authority with respect to the Registration Statement.
2.7 Listing. Cause all Registered Shares hereto
to be listed on each securities exchange, if any, on which the Common Stock is
then listed or with the National Association of Securities Dealers, Inc.
3. Conditions to Obligations of POI. The obligations of
POI under Section 2 hereof are subject to the satisfaction of each of the
following conditions:
3.1 Information. Shareholder shall furnish to
POI such information regarding Shareholder, its Registrable Shares (and
Shareholder's other holdings of POI securities, if any) and Shareholder's
proposed methods of distribution of its Registered Shares, and shall execute
and deliver to POI such documents, as POI may reasonably request in order to
permit POI to comply with all applicable requirements of the Securities Act or
any applicable state securities law or to obtain acceleration of the effective
date of the Registration Statement. Without limiting the generality of the
foregoing, Shareholder hereby represents and warrants that all information
provided by Shareholder for inclusion in the prospectus with respect to
Shareholder, Shareholder's Registerable Shares and other holdings of POI's
securities (if any) and Shareholder's proposed methods of distributing the
Registrable Shares is and shall be complete and accurate.
3.2 Compliance with Agreement. Shareholder shall
have complied with all terms and conditions of this Agreement to be complied
with by Shareholder.
4. Allocation of Expenses. All discounts, commissions
or fees of underwriters, selling brokers, dealer managers or similar securities
industry professionals and all fees and expenses of separate counsel and
accountants for Shareholder, if any, with respect to Shareholder's sale,
transfer, pledge or other disposition of the Registered Shares shall be borne
by Shareholder. Except as otherwise required by any federal or state
regulatory authority, POI shall bear all other expenses incurred by POI in
performing its obligations hereunder, including, without limitation,
registration and filing fees, fees and expenses of complying with applicable
state securities laws, fees and expenses incurred in connection with the
listing of Registered Shares on any securities exchange or with the National
Association of Securities Dealers, printing expenses, fees and disbursements of
counsel for, and independent certified public accountants of, POI, and fees and
expenses of any other party or parties retained by POI in connection with the
applicable registration.
5. Restrictive Legends; Restrictions on Resale.
5.1 Legend. Each certificate representing
Registrable Shares shall be stamped or otherwise imprinted with a legend in
substantially the following form:
Page 3 - REGISTRATION RIGHTS AGREEMENT
4
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SUCH ACT AND APPLICABLE STATE SECURITIES
LAWS. THE SALE, TRANSFER, PLEDGE OR ANY OTHER DISPOSITION OF THE
SHARES REPRESENTED BY THESE CERTIFICATES IS SUBJECT TO THE TERMS OF A
REGISTRATION RIGHTS AGREEMENT DATED AS OF DECEMBER 17, 1996, BETWEEN
THE ISSUER AND THE HOLDER THEREOF.
5.2 Restrictions on Resale. Shareholder shall
not offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, make any short sale or otherwise transfer or dispose of,
directly or indirectly, the Registrable Shares until the effective date of the
Registration Statement. Shareholder may sell, transfer, pledge or otherwise
dispose of the Registered Shares at any time after the effective date of the
Registration Statement; provided, however, that Shareholder shall sell the
Registered Shares only through broker-dealers designated by POI. After the
effective date of the Registration Statement, shall provide Shareholder with a
new certificate for the Registered Shares without the first sentence of the
legend set forth in Section 5.1 within five (5) business days after Shareholder
has surrendered Shareholder's original certificate with the legend set forth in
Section 5.1.
6. Termination of Agreement. If the Closing (as such
term is defined under the Purchase Agreement) of the purchase and sale of the
Assets (as such term is also defined under the Purchase Agreement) under the
Purchase Agreement does not occur for any reason immediately following the
effective date of the Registration Statement through no fault of Monitoring,
then POI may terminate this Agreement by delivering to Shareholder written
notice of termination.
7. Miscellaneous.
7.1 Notices. All notices, requests, consents,
demands and other communications provided for by this Agreement shall be in
writing and shall be deemed to have been duly given or made (i) when delivered
by hand or by a courier service, (ii) when sent by telecopier of sent on a
Business Day or if so sent on a day that is not a Business Day, on the first
Business Day thereafter, or (iii) three Business Days after being sent by
registered or certified first-class mail, in each case addressed as follows:
7.1.1 If to Shareholder, at Shareholder's
address as it shall then appear in the books and records of the transfer agent
for the Common Stock.
7.1.2 If to POI, initially at the address
set forth in the Stock Agreement, and thereafter at such other address notice
of which is given in accordance with the provisions of this Section 7.1.
7.2 Entire Agreement. This Agreement embodies
the entire understanding and agreement among the parties hereto with respect to
the subject matter hereof and supersedes all prior discussions, negotiations,
understandings and agreements relating to such subject matter hereof.
Page 4 - REGISTRATION RIGHTS AGREEMENT
5
7.3 Third Party Beneficiaries. This Agreement is
intended to, and shall, inure to the benefit only of the parties hereto and
their respective successors and permitted assigns.
7.4 Assignment. Neither this Agreement nor the
rights or obligations hereunder of any party hereto may be assigned, delegated
or otherwise transferred by any such party.
7.5 Amendments. This Agreement may be amended,
supplemented or (except as hereinafter expressly provided to the contrary)
terminated, and the time for the performance of any of the covenants to be
performed by POI hereunder for the benefit of the Shareholder may be extended,
or such performance may be waived, only by a writing executed by POI and
Shareholder.
7.6 Counterparts. This Agreement may be executed
in several counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
7.7 Headings. The headings of this Agreement
have been added for convenience only and shall not be used in any way to
construe or otherwise affect this Agreement.
7.8 Governing Law. This Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Oregon applicable to agreements made and wholly performed in such state.
IN WITNESS WHEREOF, the undersigned have hereunto set their
hands as of the day and year first above writing.
POI:
PROTECTION ONE, INC.
By: XXXX X. XXXX, III
------------------------------------
Its: Executive Vice President
------------------------------------
SHAREHOLDER:
XXXXXXXX ELECTRONICS, INC.
By: XXXXXX X. XXXXXXXXX
------------------------------------
Its: Chairman
------------------------------------
Page 5 - REGISTRATION RIGHTS AGREEMENT
