Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (the "Agreement") is entered into as of
December 21, 1999 by and among xxxxxxxxxxx.xxx inc., a Michigan corporation (the
"Company"), and the persons who sign this Agreement as Holders (the "Holders").
RECITALS:
A. As of the date hereof, the Holders purchased shares of the Company's
Series A Convertible Preferred Stock (the "Preferred Shares").
B. Pursuant to their terms, the Preferred Shares will be converted into
shares of the Company's common stock, no par value (the "Common Shares"), upon
certain events.
C. The Company and the Holders are entering into this Agreement to set
forth certain registration rights with respect to the Common Shares.
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS. The following capitalized terms shall have the following
definitions:
(a) "Common Stock" means the Company's common stock, no par value.
(b) "IPO" means an underwritten initial public offering and sale of the
Common Stock pursuant to an effective registration statement under the
Securities Act.
(c) "Person" means an individual, a partnership, a limited liability
company, a joint venture, a corporation, a trust, an unincorporated
organization, a government or any department or agency thereof, or any
other entity.
(d) "Registrable Securities" means (i) the Common Shares issued or
issuable upon the conversion of the Preferred Shares, and (ii) any shares
of Common Stock issued or issuable with respect to the Common Shares
referred to in clause (i) above by way of stock dividend, stock split or in
connection with a combination of stock, recapitalization, merger,
consolidation or other reorganization. As to any particular Registrable
Securities, such securities will cease to be Registrable Securities on the
earliest of the following dates: (i) the date such securities have been
sold to the public pursuant to an offering registered under the Securities
Act, or (ii) the date such securities are eligible to be sold pursuant to
Rule 144 (or any similar provisions then in force) under the Securities
Act.
(e) "Registration Period" means the period commencing immediately after
the consummation of the IPO and ending on the second anniversary of the
consummation of the IPO.
(f) "Registration Statement" means any registration statement of the
Company which covers any Registrable Securities pursuant to the provisions
of this Agreement.
(g) "SEC" means the Securities and Exchange Commission.
(h) "Securities Act" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
2. PIGGYBACK REGISTRATION.
(a) If the Company proposes to register any of its securities under the
Securities Act (other than pursuant to (i) a registration on Form S-4 or
any successor form, or (ii) an offering of securities in connection with an
employee benefit plan, a stock option plan, a stock dividend plan, a stock
ownership plan or a dividend reinvestment plan) at any time during the
Registration Period and the registration form to be used may be used for
the registration of Registrable Securities (a "Piggyback Registration"),
the Company shall give prompt written notice to all holders of Registrable
Securities of its intention to effect such a registration (each a
"Piggyback Notice") and, subject to Sections 2(b) and 2(c) below, the
Company shall include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion
therein within fifteen (15) days after the date of sending of the Company's
notice (the "Included Registrable Securities"); provided, however, that, at
the Company's option, the Company may file a separate Registration
Statement for, and with respect to, Included Registrable Securities in
satisfaction of the Company's obligation hereunder.
(b) If a Piggyback Registration is an underwritten registration that
includes primary shares to be sold on behalf of the Company, and the
managing underwriters advise the Company in writing that in their opinion
the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner within a price
range acceptable to the Company, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, and
(ii) second, the Registrable Securities requested to be included in such
registration and any other securities requested to be included in such
registration, pro rata among the holders of Registrable Securities
requesting such registration and the holders of such other securities on
the basis of the number of shares owned by each such holder.
(c) If a Piggyback Registration is an underwritten secondary registration
initiated by and on behalf of holders of the Company's securities other
than the holders of Registrable Securities pursuant to the exercise of
demand registration rights, and the managing underwriters advise the
Company in writing that in their opinion the number of securities requested
to be included in such registration exceeds the number which can be sold in
an orderly manner in such offering within a price range acceptable to the
holders initially requesting such registration, the Company shall include
in such registration (i) first, all of the securities requested to be
included therein by the holders initially requesting such registration, and
(ii) second, the Registrable Securities requested to be included in such
registration and any other securities requested to be included in such
registration, pro rata among the holders of Registrable Securities
requesting such registration and the holders of such other securities on
the basis of the number of shares owned by each such holder.
(d) In the case of an underwritten Piggyback Registration, the Company
shall have the sole and exclusive right to select the investment banker(s)
and manager(s) to administer the offering.
3. REGISTRATION PROCEDURES. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, the Company shall use its reasonable best efforts to effect the
registration and the sale of such Registrable Securities in accordance with the
intended method of disposition thereof and pursuant thereto the Company shall as
expeditiously as possible:
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(a) prepare and file with the SEC a Registration Statement with respect
to such Registrable Securities and use its reasonable best efforts to cause
such Registration Statement to become effective;
(b) prepare and file with the SEC 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 required by the intended method of disposition, and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during such period in
accordance with the intended methods of disposition by the sellers thereof
set forth in such Registration Statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such Registration Statement, each amendment and supplement
thereto, the prospectus included in such Registration Statement (including
each preliminary prospectus) and such other documents as such seller may
reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such seller;
(d) use its reasonable best efforts to register or qualify such
Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other
acts and things which may be reasonably necessary or advisable to enable
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller (provided that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (ii) subject itself to taxation in any such
jurisdiction, (iii) consent to general service of process in any such
jurisdiction, or (iv) qualify such Registrable Securities in a given
jurisdiction where expressions of investment interest are not sufficient in
such jurisdiction to reasonably justify the expense of qualification in the
jurisdiction or where such qualification would require the Company to
register as a broker or dealer in such jurisdiction).
(e) notify each seller of such Registrable Securities, 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 included in such Registration Statement contains an untrue
statement of a material fact or omits any material fact necessary to make
the statements therein not misleading, and, at the request of any such
seller, the Company shall prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not contain an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading;
(f) use its reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which similar
securities issued by the Company are then listed and to be qualified for
trading on each system on which similar securities issued by the Company
are from time to time qualified;
(g) in the event of an underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering; and
(h) in the event of the issuance of any stop order suspending the
effectiveness of a Registration Statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any Common Stock included in such
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Registration Statement for sale in any jurisdiction, the Company shall use
its reasonable best efforts to promptly obtain the withdrawal of such
order.
Each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e) or (h) hereof, such
Holder shall forthwith discontinue disposition of shares of Common Stock
pursuant to a Piggyback Registration until receipt of the copies of an
appropriate supplement or amendment to the prospectus under Section 3(e) or
until the withdrawal of such order under Section 3(h).
4. Registration Expenses. The Company shall bear all costs and 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 securities or blue sky laws, printing expenses,
messenger and delivery expenses, and fees and disbursements of counsel for the
Company, all independent certified public accountants of the Company and fees
and expenses of other Persons retained by the Company in connection with the
distribution of the Registrable Securities. The participating Holders shall pay
all discounts and commissions attributable to the Registrable Securities, all
transfer taxes relating to the sale or disposition of the Registrable Securities
and all fees and expenses of any attorney or accountant retained by the Holders
in connection with the registration of Registrable Securities.
5. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers, directors and trustees
and each Person who controls (within the meaning of the Securities Act)
such holder 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
statements therein not misleading, except insofar as the same are caused by
or contained in any information furnished to the Company in writing by such
holder expressly for use therein or by such holder's failure to deliver a
copy of the Registration Statement or prospectus or any amendments or
supplements thereto after the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering, the Company shall indemnify such underwriters, their officers and
directors and each Person who controls (within the meaning of the
Securities Act) such underwriters to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
(b) In connection with any Registration Statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to
the Company in writing such information as the Company reasonably requests
for use in connection with any such Registration Statement or prospectus
and, to the extent permitted by law, shall indemnify the Company, its
directors and officers and each Person who controls (within the meaning of
the Securities Act) the Company 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 statements therein not
misleading, but only to the extent that such untrue statement or omission
is contained in any information so furnished in writing by such holder;
provided, however, that the obligation to indemnify under this Section 5(b)
shall be several, not joint and several, among such holders of Registrable
Securities.
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(c) Any Person entitled to indemnification hereunder shall (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 shall not be subject to any liability for
any settlement made by the indemnified party without its consent (but such
consent shall not be unreasonably withheld). An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim shall 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 a conflict of
interest may exist between such indemnified party and any other such
indemnified parties with respect to such claim.
(d) If for any reason the indemnification provided for in the preceding
clauses (a) and (b) is unavailable to an indemnified party or insufficient
to hold such party harmless as contemplated by the preceding clauses (a)
and (b), then the indemnifying party shall contribute to the amount paid or
payable by the indemnified party as a result of the loss, claim, damage,
liability or expense in the proportion as is appropriate to reflect (i) the
relative fault of the indemnified party and the indemnifying party, and
(ii) any other relevant equitable considerations.
(e) The indemnities provided in this Section 5 shall survive the
Holders' transfer of any Registrable Securities.
6. Participation in Underwritten Registrations. No Person may participate
in any registration hereunder which is underwritten unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
7. Disclosure. With a view to making available to the Holders the benefits
of Rule 144 promulgated under the Securities Act, the Company agrees, for a
period of two years following the date of this Agreement, to:
(a) make and keep public information available within the meaning of
Rule 144(c) of the Securities Act at all times after ninety (90) days after
the closing of the IPO;
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); and
(c) furnish to any Holder, so long as the Holder owns any Registrable
Securities, forthwith upon request (i) a written statement by the Company
that it has complied with the reporting requirements of Rule 144 (at all
times after ninety (90) days after the closing of the IPO) and the Exchange
Act, (ii) a copy of the most recent annual or quarterly report of the
Company, and (iii) such other reports, documents and other information in
the possession of or reasonably obtainable by the Company as the Holders
may reasonably request in availing themselves of Rule 144.
8. Market Stand-Off Agreement. Each Holder agrees that, for a period of 180
days after the date of the final prospectus relating to an IPO, it shall not,
either directly or indirectly:
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(a) (x) 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, or otherwise transfer or dispose of,
directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock
(including, without limitation, shares of Common Stock or securities
convertible into or exercisable or exchangeable for Common Stock which may
be deemed to be beneficially owned by such Holder in accordance with the
rules and regulations of the Securities and Exchange Commission) or (y)
enter into any swap or other arrangement that transfers all or a portion of
the economic consequences associated with the ownership of any Common Stock
(regardless of whether any of the transactions described in clause (x) or
(y) is to be settled by the delivery of Common Stock, or such other
securities, in cash or otherwise), without the prior written consent of the
Company and the managing underwriter(s) of the IPO; and
(b) make any demand for, or exercise any right with respect to, the
registration of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, without the prior
written consent of the Company and the managing underwriter(s) of the IPO.
9. Miscellaneous.
(a) The Company shall not hereafter enter into any agreement with
respect to its securities which is inconsistent with or violates the rights
granted to the holders of Registrable Securities in this Agreement.
(b) Any Person having rights under any provision of this Agreement
shall be entitled to enforce such rights specifically to recover damages
caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without
posting any bond or other security) for specific performance and for other
injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(c) Except as otherwise provided herein, the provisions of this
Agreement may be amended or waived only upon the prior written consent of
the Company and holders of a majority of the then outstanding shares of
Registrable Securities.
(d) All covenants and agreements in this Agreement by or on behalf of
any of the parties shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
In addition, whether or not any express assignment has been made, the
provisions of this Agreement which are for the benefit of purchasers or
holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) Whenever 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 is held to be prohibited by or
invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
(f) This Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of which together shall
constitute one and the
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same agreement. Photographic or facsimile reproductions of this Agreement
may be made and relied upon to the same extent as the originals.
(g) The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(h) This Agreement has been executed in, and shall be construed in
accordance with the laws of, the State of Michigan.
(i) All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be
in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable express courier
service (charges prepaid) or mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such
notices, demands and other communications shall be sent to the Holders at
the addresses indicated on the records of the Company and to the Company at
the address indicated below:
0000 Xxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
set forth above.
COMPANY:
xxxxxxxxxxx.xxx inc., a Michigan corporation
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Chief Executive Officer
HOLDERS:
SEE THE ATTACHED JOINDER AGREEMENTS
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