EXHIBIT 10.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT ("Agreement") is made and entered
into this _____ day of August, 1996, between (i) SPECIALTY RETAIL GROUP, INC., a
Florida corporation (the "Company") and (ii) XXXXX XXXXX and XXXXXX XXXXX (each
a "Holder" and collectively the "Holders").
RECITALS
A. The Company is contemporaneously issuing and delivering to Holders an
aggregate of 650,000 shares of the Company's common stock, par value $.001 per
share (the "Common Stock") as part of the settlement of Case No. 82-03746
heretofore pending in the 11th Judicial Circuit Court in and for Dade County,
Florida (the "Settlement").
B. The Company has agreed to provide to Holder certain registration
rights with respect to the 650,000 shares of Common Stock issued to Holder (such
650,000 shares of Common Stock being referred to herein as the "Restricted
Shares").
AGREEMENT
NOW, THEREFORE, in consideration of the premises and covenants set
forth herein as well as in that certain Agreement of Settlement and Compromise,
dated as of August ___, 1996, between Xxxxx Xxxxx, the Company and the other
"Defendants" named therein, the parties agree as follows:
1. REGISTRATION RIGHTS.
(a) INCIDENTAL (PIGGYBACK) REGISTRATION. Subject to the
limitations set forth in this Agreement, if the Company at any time within two
(2) years of the date hereof proposes to file on its behalf and/or on behalf of
any of its security holders ("the demanding security holders") a Registration
Statement under the Securities Act of 1933, as amended (the "Securities Act") on
any form (other than a Registration Statement on Form S-4 or S-8 or any
successor form for securities to be offered in a transaction of the type
referred to in Rule 145 under the Securities Act or to employees of the Company
pursuant to any employee benefit plan, respectively) for the general
registration of securities to be sold for cash with respect to its common Stock
or any other class of equity security (as defined in Section 3(a)(11) of the
Securities Exchange Act of 1934) of the Company, it will give written notice to
the Holders at least 15 days before the initial filing with the Commission of
such Registration Statement, which notice shall set forth the intended method of
disposition of the securities proposed to be registered by the Company. The
notice shall offer to include in such filing the aggregate number of shares of
Restricted Shares as Holder may request.
If either Holder desires to have Restricted Shares registered under
this Section 1, he shall advise the Company in writing within 10 days after the
date of receipt of such offer from the Company, setting forth the amount of such
Restricted
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Shares for which registration is requested. The Company shall thereupon include
in such filing the number of shares of Restricted Shares for which registration
is so requested, subject of the following. In the event that the proposed
registration by the Company is, in whole or in part, an underwritten public
offering of securities of the Company, the Company shall not be required to
include any of the Restricted Shares in such underwriting unless the Holder(s)
agree(s) to accept the offering on the same terms and conditions as the shares
of Common Stock, if any, otherwise being sold through underwriters under such
registration; provided, however, that: (i) if the managing underwriter
determines the advises the Company in writing that the inclusion of all
Restricted Shares proposed to be included by the Holders in the underwritten
public offering and other issued and outstanding shares of Common Stock proposed
to be included therein by the persons other than the Holders, the Company and
any demanding security holder (the "Other Shares") would jeopardize the success
of the Company's offering, then the Company shall be required to include in the
offering (in addition to the number of shares to be sold by the Company and any
demanding security holder) only that number of Restricted Shares that the
managing underwriter believes will not jeopardize the success of the Company's
offering and the number of Restricted Shares and Other Shares not included in
such underwritten public offering shall be reduced pro rata based upon the
number of shares of Restricted Shares and Other Shares requested by the
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holders thereof to be registered in such underwritten public offering; and (ii)
in each case all shares of Common Stock owned by the Holders which are not
included in the underwritten public offering shall be withheld from the market
by the Holder for a period, not to exceed ninety (90) calendar days, which the
managing underwriter reasonably determines as necessary in order to effect the
underwritten public offering. In the event the Company chooses a registration
form which limits the size offering either in terms of the number of shares of
dollar amount, the Company shall not be required to include in the offering (in
addition to the number of shares to be sold by the Company) Restricted Shares
which would exceed such limits.
(b) SHELF REGISTRATION. Subject to the limitations set forth in
this Agreement, the Company will file as promptly as possible (and in no event
later than September 6, 1996) a registration statement (the "Shelf Registration
Statement") on Form S-3 or other applicable form covering the Holders' resale of
up to all of the Restricted Shares, from time to time in market transactions or
otherwise, and thereafter shall use its best efforts to cause the Shelf
Registration Statement to be declared effective as soon as practicable following
such filing and to maintain such effectiveness for a period of two years from
the date hereof (or such shorter period after which the appropriate holding
period for the Restricted Shares under Rule 144(d) shall have expired);
PROVIDED, HOWEVER, that the Company shall not be obligated to maintain the
effectiveness of
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the Shelf Registration Statement pursuant to this Section 1(b) or to deliver any
prospectus under the Shelf Registration Statement after the Holders have sold,
whether pursuant to any of the provisions contemplated by this Agreement or
otherwise, all of the Restricted Shares.
2. REGISTRATION PROCEDURES. If the Company is required by the
provisions of Section 1 to use its best efforts to effect the registration of
any of its securities under the Securities Act, the Company will, expeditiously
as possible:
(a) prepare and file with the Commission a Registration
Statement with respect to such securities and use its best efforts to cause such
Registration Statement to become and remain effective for the time period
specified in 1(b);
(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 and
to comply with the provisions of the Securities Act with respect to the sale or
other disposition of all securities covered by such Registration Statement;
(c) furnish to the Holders such number of copies of a summary
prospectus or other prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other
documents, as Holders may reasonably request;
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(d) use its best efforts to register or qualify the securities
covered by such Registration Statement under such securities or blue sky laws of
such jurisdictions within the United States and Puerto Rico as Holder shall
reasonably request (provided, however, the Company shall not be obligated to
qualify as a foreign corporation to do business under the laws of any
jurisdiction (x) in which it is not then qualified or to file any general
consent to service of process, or (y) if such qualification would subject the
Company to taxation in such jurisdiction), and do such other reasonable acts and
thing as may be required of it to enable Holder to consummate the disposition in
such jurisdiction of the securities covered by such Registration Statement; and
(e) promptly notify in writing the Holders of the happening of
any event, during the period of distribution, as a result of which the
Registration Statement 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 light of the circumstances then
existing (in which case, the Company shall promptly provide the Holders with
revised or supplemental prospectuses and if so requested by the Company in
writing, the Holders shall promptly take action to cease making any offers of
the Restricted Shares until the earlier of (x) ten business days after receipt
of such notice, and (y) receipt and distribution of such revised or supplemental
prospectuses).
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3. EXPENSES. All expenses incurred in complying with this
Agreement, including, without limitation, all registration and filing fees
(including all expenses incident to filing with the NASD), printing expenses,
fees and disbursements of counsel for the Company, expenses of any special
audits incident to or required by any such registration and expenses (including
attorneys' fees) of complying with the securities or blue sky laws of any
jurisdictions pursuant to Section 2(d), shall be paid by the Company, except
that the Company shall not be liable for any fees, discounts or commissions to
any underwriter or broker in respect of the Restricted Shares or any fees or
disbursements of counsel for either Holder.
4. INDEMNIFICATION. In the event of any registration of any
Restricted Shares under the Securities Act pursuant to this Agreement, the
Company shall indemnify and hold harmless the seller of such shares, each
underwriter of such shares, if any, each such broker or any other person, if
any, who controls any of the foregoing persons, within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which any of the foregoing persons 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 an
untrue statement of a material fact contained in any registration statement
under which such Restricted Shares were registered under the Securities Act, any
final prospectus contained therein, or any amendment or
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supplement thereto, or any document prepared and/or furnished by the Company
incident to the registration or qualification of any Restricted Shares, or arise
out of or are based upon the omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading
or, with respect to any final prospectus, necessary to make the statements
therein in light of the circumstances under which they were made, not
misleading, or any violations by the Company of the Securities Act or state
securities or "blue sky" laws applicable to the Company relating to action or
inaction required of the Company in connection with such registration or
qualification under such state securities or blue sky laws; and shall reimburse
such seller, such underwriter, broker or other person acting on behalf of such
seller and each such controlling person for any legal or any other expenses
reasonably incurred by any of them in connection with investigating or defending
any such loss, claim, damage, liability or action. Each of the Holders
severally agrees to indemnify and hold harmless (in the same manner and to the
same extent as set forth in this Section 4 for the indemnification of such
prospective seller and underwriter by the Company) the Company, each director of
the Company, each officer of the Company who shall sign such registration
statement and any person who controls the Company within the meaning of the
Securities Act, with respect to any untrue statement or omission from such
registration statement or final prospectus contained therein or any amendment or
supplement thereto, if such untrue
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statement or omission was made in reliance upon and in conformity with
information furnished to the Company in writing by such Holder for use in the
preparation of such registration statement, final prospectus or amendment or
supplement. Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in this Section 4, such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party, give written notice to the latter of such claim and/or the
commencement of such action. In case any such action is brought against an
indemnified party, the indemnifying party will be entitled to participate in and
assume the defense thereof, jointly with any other indemnifying party similarly
notified to the extent it may wish, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election to assume the defense thereof, the
indemnifying party shall be responsible for any legal or other expenses
subsequently incurred by the latter in connection with the defense thereof,
provided that if any indemnified party shall have reasonably concluded that
there may be one or more legal defenses available to such indemnified party
which conflict in any material respect with those available to the indemnifying
party, or that such claim or litigation involves or could have an effect upon
matters beyond the scope of the indemnity agreement provided in this Section 4,
such indemnifying party shall reimburse such indemnified party and shall not
have the right to
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assume the defense of such action on behalf of such indemnified party and such
indemnifying party shall reimburse such indemnified party and any person
controlling such indemnified party for that portion of the fees and expenses of
any counsel retained by the indemnified party which are reasonably related to
the matters covered by the indemnity agreement provided in this Section 4. The
indemnifying party shall not make any settlement of any claims indemnified
against thereunder without the written consent of the indemnified party or
parties, which consent shall not be unreasonably withheld.
5. CERTAIN LIMITATIONS ON REGISTRATION RIGHTS. The Company's
obligations under Section 1 are expressly conditioned upon Holders furnishing to
the Company in writing such information concerning the Holders and the terms of
such Holders' proposed offering of Restricted Shares as the Company shall
reasonably request for inclusion in the Registration Statement.
6. MISCELLANEOUS.
(a) NOTICE GENERALLY. Any notice, demand, request, consent,
approval, declaration, delivery or other communication hereunder to be made
pursuant to the provisions of this Agreement shall be sufficiently given or made
if in writing and either delivered in person with receipt acknowledged,
delivered by reputable overnight courier, telecopied and confirmed separately in
writing by a copy mailed as follows or sent by registered mail or certified
mail, return receipt requested, postage prepaid, addressed as follows:
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IF TO THE COMPANY: Specialty Retail Group, Inc.
0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxxx 00000
WITH A COPY TO:
Xxxxxxx X. Xxxx
Xxxxxxx Krooks & Xxxx, P.C.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
IF TO HOLDER: x/x Xxxxxx Xxxxx
000 Xxxxx Xxxxxxxx Drive,
Suite 1846 - Tower III
Xxxxx, Xxxxxxx 00000
(b) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto; provided, however, that Holder's rights hereunder may not be transferred
to any person without the written consent of the Company.
(c) GOVERNING LAW. This Agreement shall be governed by the laws
of the State of Florida, without regard to the provisions thereof relating to
conflict of laws.
(d) SEVERABILITY. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provisions shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(e) ENTIRE AGREEMENT. This Agreement is intended by the parties
as a final expression of their agreement and
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intended to be a complete exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained herein and
therein. There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein and therein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to the subject matter hereof.
(f) COUNTERPARTS. This Agreement may be executed in any number
of separate counterparts, each of which shall collectively and separately,
constitute one agreement.
(g) PURCHASE FOR INVESTMENT AND PROSPECTUS DELIVERY. Each of
the Holders hereby severally represents that (x) he is acquiring the Restricted
Shares for investment and, except as contemplated hereby, not with a view toward
distribution within the meaning of applicable Federal and state securities laws,
and (y) he will timely deliver (or cause to be delivered) to any purchaser of
the Restricted Shares a copy of the final Prospectus included in the Shelf
Registration Statement and theretofore made available to Holder by the Company.
IN WITNESS WHEREOF, the Company and Holders have executed this
Agreement as of the date first above written.
SPECIALTY RETAIL GROUP, INC.
By: /s/ XXXXX X. XXXXX
-----------------------------------
/s/ XXXXX XXXXX
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Xxxxx Xxxxx
/s/ XXXXXX XXXXX
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Xxxxxx Xxxxx
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