Exhibit 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of February 11, 1997 by and among XXXXXX INDUSTRIES, INC.,
a Florida corporation (the "Company"), and X.X. XXXX, XX (the "Holder").
R E C I T A L S:
WHEREAS, the Holder is the beneficial owner of 176,078 shares of the
Company's Class B $.01 par value Common Stock ("Common Stock"); and
WHEREAS, the Holder acquired the Common Stock as part of the sale of
his company, Liberty Finance Company, to a subsidiary of the Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the Company and the Holder agree as follows:
1. Certain Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Registrable Stock" shall mean 176,078 shares of Common Stock
beneficially owned by the Holder.
"Secondary Offering" shall mean a public offering subsequent to
the date hereof.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and underwriter expense reimbursement allowances applicable to
the sale of Registrable Stock, as well as all fees and expenses of counsel
for the Holder.
2. "Piggyback" Registration.
(a) If the Company at any time after the date of this Agreement
proposes to register any of its securities under the Securities Act (other
than in connection with (i) a merger or pursuant to Form S-8 or other
comparable form not available for registering the Registrable Stock for
sale to the public), or (ii) a registration statement filed on the exercise
of demand registration rights held by a holder of securities of the
Company, the Company shall request that the managing underwriter (if any)
of such Secondary Offering include the Registrable Stock in the
registration statement for the public offering in such registration. If
such managing underwriter agrees to include the Registrable Stock in the
registration statement relating to the Secondary Offering, the Company
shall at such time give prompt written notice to the Holder of its
intention to effect such registration and of the Holder's right under such
proposed registration, and upon the request of the Holder delivered to the
Company within twenty (20) days after giving such notice (which request
shall specify the Registrable Securities intended to be disposed of by the
Holder), the Company shall include such Registrable Securities held by the
Holder requested to be included in such registration; provided, however,
that:
(i) If, at any time after giving such written notice of the
Company's intention to register any of the Holder's Registrable Stock and
prior to the effective date of the registration statement filed in
connection with such registration, the Company shall determine for any
reason not to file the registration statement wherein the Registrable Stock
would be registered or to delay the registration of such Registrable Stock,
at its sole election, the Company may give written notice of such
determination to the Holder and thereupon shall be relieved of its
obligation to register any Registrable Stock issued or issuable in
connection with such registration (but not from its obligation to pay
registration expenses in connection therewith or to register the
Registrable Stock in a subsequent registration); and in the case of a
determination to delay a registration, the Company shall thereupon be
permitted to delay registering any Registrable Stock for the same period as
the delay in respect of securities being registered for the Company's own
account.
(ii) If the managing underwriter in such Secondary Offering
shall advise the Company that it declines to include a portion or all of
the Common Stock which holders of Common Stock with piggyback registration
rights have requested be included in such Secondary Offering, then
registration of all or a portion of the Common Stock of all such holders
shall be excluded from such registration, as appropriate, on a proportional
basis determined by comparing the number of shares of Common Stock which
each such holder requested be registered against the total of all shares of
Common Stock that all such holders requested be registered. In such event
the Company shall give the Holder prompt written notice of the number of
shares of Registrable Stock excluded from such registration at the request
of the managing underwriter. No such exclusion shall reduce the securities
being offered by the Company for its own account to be included in such
registration statement.
(iii) The Company shall not be required to include any
of the Holder's Registrable Stock in the registration statement relating to
an underwritten offering of the Company's securities unless the Holder
accepts the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it (provided such terms are usual and
customary for selling stockholders) and the Holder agrees to execute and/or
deliver such documents in connection with such registration as the Company
or the managing underwriter may reasonably request.
(iv) If the managing underwriter shall restrict the amount
of the Holder's Registrable Shares which can be included in a Secondary
Offering, then the balance of such Registrable Shares shall continue to be
fully subject to the terms and rights of this Agreement, which specifically
includes piggyback rights in any subsequent Secondary Offering, until all
such Registrable Shares have been registered.
(b) The Company may, in its sole discretion and without the
consent of the Holder, withdraw such registration statement and abandon the
proposed offering in which the Holder had requested to participate, but
such abandonment shall not preclude subsequent request for registration
pursuant to Section 2.
(c) In the event that the Company shall not have undertaken a
Secondary Offering on or before the expiration of one (1) year from the
date hereof, then, at the written demand of Holder, the Company shall cause
the Registrable Shares to be registered for public sale under the
Securities Act. If there is a Secondary Offering and not all of Holder's
Registrable Shares are included in the Secondary Offering, then the balance
of those Registrable Shares will be registered at the latest of: (i) one
(1) year from the date of the Secondary Offering, or (ii) the earliest date
permitted by the managing underwriter in the Underwriting Agreement
executed as part of the Secondary Offering.
(d) In all events, if all of the Registrable Shares of Holder
have not been registered on or before June 1, 1998, the Company shall cause
the balance of the Registrable Shares to be registered for public sale.
3. Cooperation with Company. The Holder will cooperate with the
Company in all respects in connection with this Agreement, including,
without limitation, timely supplying all information reasonably requested
by the Company and executing and returning all documents reasonably
requested in connection with the registration and sale of the Registrable
Stock.
4. Expenses. All expenses incurred by the Company in complying with
the provisions of this Agreement, including, without limitation, all
restrictions and filing fees, printing expenses, fees and disbursements of
Company counsel and independent public accountants for the Company, fees
and expenses (including 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 and costs of insurance, but excluding any Selling Expenses, are
called "Registration Expenses."
The Company will pay all Registration Expenses in connection with each
registration of Registrable Stock pursuant to the provisions of this
Agreement. All Selling Expenses in connection with each such registration
statement shall be borne by the participating sellers in proportion to the
number of shares sold by each, or by such participating sellers other than
the Company (except to the extent the Company shall be a seller) as they
may agree.
5. Indemnification and Contribution.
(a) Company Indemnity. In the event of a registration of any of
the Holder's Registrable Stock under the Securities Act pursuant to the
provisions of this Agreement, the Company shall indemnify and hold
harmless, to the extent permitted by law, the Holder, each underwriter of
such Registrable Stock thereunder and each other person, if any, who
controls such seller or 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
Stock was registered under the Securities Act pursuant to the provisions of
this Agreement, 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 seller, 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 that
the Company 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
(i) an untrue statement or alleged untrue statement or omission or alleged
omission so made in conformity with information furnished by any such
seller, any such underwriter or any such controlling person in writing
specifically for use in such registration statement or prospectus; or (ii)
the Holder's failure to deliver a copy of the final prospectus as then
amended or supplemented after the Company has furnished the Holder with a
sufficient number of copies of the same, but only if delivery of same is
required by law and the same would have cured the defect giving rise to any
such loss, claim, damage, liability or expense.
(b) Holder Indemnity. In the event of a registration of any of
the Registrable Stock under the Securities Act pursuant to the provisions
of this Agreement, the Holder will indemnify and hold harmless the Company,
each person, if any, who controls the Company within the meaning of the
Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, 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 Company 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 the Holder under which such Registrable Stock was registered
under the Securities Act pursuant to the provisions of this Agreement, 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 Company 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, damages, liability or action; provided that the
Holder will be liable hereunder in an amount not to exceed the net proceeds
received by the Holder in the sale of its Registrable Stock pursuant to
such registration statement and, in any such case, if and only to the
extent that any such loss, claim, damage, liability or action 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 the Holder furnished in writing to the Company by
the Holder specifically for use in such registration statement or
prospectus.
(c) Notice; Right to Defend. Promptly after receipt by an
indemnified party hereunder 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 such liability other than under this Section 6 and
shall only relieve it from any liability which it may have to such
indemnified party if such 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 under this Section 6 to such
effect, the indemnifying party shall not be liable 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 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, the indemnified party shall
have the right to select a separate counsel and to assume such legal
defenses and otherwise 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) Contribution. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in
which either (i) the Holder of Registrable Stock exercising rights under
this Agreement, or any controlling person of the Holder, makes a claim for
indemnification pursuant to this Section 6 but it is judicially determined
(by 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 6 provides for indemnification
in such case, or (ii) contribution under the Securities Act may be required
on the part of the Holder or any such controlling person in circumstances
for which indemnification is provided under this Section 6, then, and in
each such case, the Company and the 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 the Holder is
responsible for the portion represented by the percentage that the public
offering price of its Registrable Stock offered by the registration
statement bears to the public offering price of all securities offered by
such registration statement (in an amount in any case not to exceed the net
proceeds received by the Holder in the sale of its Registrable Stock
pursuant to such registration statement), and the Company is responsible
for the remaining portion; provided that, in any such case, 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.
6. 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 Stock to the public without
registration, at all times after 90 days after any registration statement
covering a public offering of securities of the Company under the
Securities Act shall have become effective, the Company 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 Company under the
Securities Act and the Exchange Act; and
(c) furnish to the Holder of Registrable Stock forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as
such Holder may reasonably request in availing itself of any rule or
regulation of the Commission allowing the Holder to sell any Registrable
Stock without registration.
7. Successors and Assigns. The rights of the Holder granted under
this Agreement, including the rights to cause the Company to register the
Registrable Stock, may not be assigned without the prior written consent of
the Company, which shall not be unreasonably withheld. Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit
of, and be binding upon, the successors and permitted assigns of the
Company and of the Holder.
8. Entire Agreement. This Agreement expresses the entire
understanding of the Company and of the Holder of Registrable Stock and
contemporaneous agreements and undertakings of the Company and the Holder
with respect to the subject matter of this Agreement.
9. Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be mailed by
certified or registered mail, return receipt requested, postage prepaid, or
telexed with confirmation of receipt, or delivered by hand or by a
nationally recognized overnight delivery service, addressed as follows:
(a) If to the Company, at:
XXXXXX INDUSTRIES, INC.
000 Xxxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopier: (000) 000-0000
or at such other address or addresses as shall have been furnished in
writing to the Holder, or
(b) If to the Holder, as follows:
X.X. Xxxx, XX
0000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxx X. Xxxxxxx, Esquire
Milam, Otero, Xxxxxx, Xxxxxx & Xxxxxx, P.A.
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
(c) Any notice so addressed, when mailed by registered or
certified mail shall be deemed to be given three days after so mailed, when
telexed shall be deemed to be given when transmitted, or when delivered by
hand or overnight shall be deemed to be given when delivered.
10. Amendment and Waiver. This Agreement may be amended, and the
observance of any term of this Agreement may be waived, but only with the
written consent of the Company and persons holding not less than 51% of all
outstanding Registrable Stock.
11. Governing Law. This Agreement shall be construed in accordance
with and governed by the internal, substantive laws of the State of
Florida, without giving effect to the conflicts of law principles thereof.
12. Invalidity of Provisions. If any provisions of this Agreement
shall be determined by a court of competent jurisdiction to be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein shall not be
affected thereby.
13. Headings. The headings in this Agreement are for purposes of
reference only and shall not be deemed to alter or affect the meaning or
interpretation of any of the provisions of this Agreement.
14. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of
which together shall constitute one and the same instrument.
15. Time of the Essence. Time shall be of the essence for all
performances hereunder.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
the 12th day of February, 1997.
XXXXXX INDUSTRIES, INC.,
a Florida corporation
By: /S/ J. Xxxx Xxxxxxxxxx, Xx.
Name:
Title: Asst. V.P.
HOLDER
/S/ X.X. Xxxx, XX
X.X. Xxxx, XX
