Exhibit 4.2 - Registration Rights Agreement between Xxxxx X. Xxxxxx
and the Registrant dated January 28, 1997.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement")
is entered into by XXXXXX INDUSTRIES, INC., a Florida
corporation (the "Company"), and XXXXX X. XXXXXX (the
"Holder").
R E C I T A L S:
WHEREAS, the Holder, the Company and certain other
parties have entered into an Agreement and Plan of Merger
providing for the merger (the "Merger") of Smart Choice
the Company and the issuance of shares of the Company in
exchange for the outstanding shares of SCHI; and
WHEREAS, in connection with the Merger, the Company
desires to grand the Holder the registration rights set
forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and
the mutual covenants contained herein, the Company and the
Holder hereby 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 shares of the
Company's common stock, par value $.001 per share (the
"Common Stock") as follows: (i) 100,000 shares of Common
Stock on the date of this Agreement and (ii) 50,000 shares
of Common Stock for each calendar quarter thereafter up to a
maximum of four calendar quarters.
"Securities Act" shall mean the Securities Act of
1933, as amended.
2. "Piggyback" Registration. 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 a merger or pursuant to Form S-8 or other
comparable form not available for registering the
Registrable Stock for sale to the public), the Company shall
request that the managing underwriter (if any) of such stock
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 such stock
offering, the Company shall at such time give prompt written
notice to the Holder of its intention to effect such
registration and of the Holders' 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 Holders' 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 are being 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 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 a
stock offering shall advise the Company that it declines to
include a portion or all of the Registrable Stock requested
by the Holder to be included in the registration statement,
then distribution of all or a specified portion of the
Registrable Stock shall be excluded from such registration
statement. In such event the Company shall give the Holder
prompt 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.
(b) Option to Include Registrable Stock in
Offering. The Holder, subject to the provisions of Section
2, shall have the option to include his Registrable Stock in
the registration statement, relating to such stock offering.
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.
(c) 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.
3. Expiration of Registration Rights. The
obligations of the Company to register shares of the
Registrable Stock under Sections 2 of this Agreement, shall
terminate one (1) year after the date hereof, unless such
obligations terminate earlier in accordance with the terms
of this Agreement.
4. 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.
5. Registration Procedures. If and whenever the
Company is required by any of the provisions of this
Agreement to use its reasonable best efforts to effect the
registration of any shares of Registrable Stock under the
Securities Act, the Company shall (except as otherwise
provided in this Agreement), as expeditiously as possible:
(a) prepare and file with the Commission a
registration statement and shall use its reasonable best
efforts to cause such registration statement to become
effective and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter
provided);
(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 specified in paragraph (a) and to comply with the
provisions of the Securities Act with respect to the sale or
other disposition of all Registrable Stock covered by such
registration statement in accordance with the sellers'
intended method of disposition set forth in such
registration statement for such period;
(c) furnish to each seller of Registrable Stock
such number of copies of a summary prospectus or other
prospectus, including a preliminary prospectus or any
amendment or supplement to any prospectus, in conformity
with the requirements of the Securities Act, and such other
documents, as such persons may reasonably request in order
to facilitate the public sale or other disposition of the
Registrable Stock covered by such registration statement;
(d) use its reasonable best efforts to register
and qualify the Registrable Stock covered by such
registration statement under such other securities laws or
"blue sky" laws of such jurisdictions as the sellers of the
Registrable Stock or, in the case of an underwritten stock
offering, the managing underwriter, reasonably shall
request, and do any and all other acts and things which may
be necessary or advisable to enable such seller of
Registrable Stock to consummate the public sale or other
disposition in such jurisdiction of the Registrable Stock
owned by such seller, except that the Company shall not for
any such purpose be required to qualify to do business as a
foreign corporation in any jurisdiction wherein it is not so
qualified or to file therein any general consent to service
of process; or take any other actions or submit itself or
its directors or officers or any resolutions, obligations or
burdens having a material adverse economic effect on it or
them.
(e) use its reasonable best efforts to list the
Registrable Stock covered by such registration statement
with any securities exchange on which the Common Stock of
the Company is then listed, if the listing of such
securities is then permitted under the rules of such
exchange; and
(f) promptly notify each seller of Registrable
Stock and each underwriter under such registration
statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the
happening of any event of which the Company has knowledge as
a result of which the prospectus included in such
registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of
the circumstances then existing.
For purposes of Section 5(a) and 5(b) hereof, the
period of distribution of Registrable Stock in an
underwritten offering shall be deemed to extend until each
underwriter has completed the distribution of all securities
purchased by it, and the period of distribution of
Registrable Stock in any other registration shall be deemed
to extend until the earlier of the sale of all Registrable
Stock covered thereby or eighteen (18) months after the
effective date thereof.
In connection with each registration hereunder, the
sellers of Registrable Stock will furnish to the Company in
writing such information with respect to themselves and the
proposed distribution by them as reasonably shall be
necessary in order to assure compliance with federal and
applicable state securities laws.
In connection with each registration covering an
underwritten offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter
containing such provisions as are customary in the
securities business for such an arrangement between such
underwriter and companies of the Company's size and
investment stature.
6. "Lock-Up" Agreement. The Holder hereby agrees not
to sell, transfer, assign, hypothecate or otherwise dispose
of any of the Common Stock (or other securities) of the
Company held by him for 90 days after the closing of any
transaction in which Registrable Stock of the Holder is
registered and sold pursuant to the terms of this Agreement.
7. Expenses. All expenses incurred by the Company in
complying with the provisions of this Agreement, including,
without limitation, all registration 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
and expenses of counsel for the Holder, are called
"Registration Expenses". 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, are
called "Selling 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 Holder.
8. 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) such Holder's failure to deliver a copy
of the final prospectus as then amended or supplemented
after the Company has furnished such 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 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 his 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 7 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 8 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
makes a claim for indemnification pursuant to this Section 8
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 8 provides for indemnification in such case, or (ii)
contribution under the Securities Act may be required on the
part of the Holder in circumstances for which
indemnification is provided under this Section 8, 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 his 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.
9. 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 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.
10. 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.
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 the Holder.
11. Entire Agreement. This Agreement expresses the
entire understanding of the Company and the Holder with
respect to the subject matter of this Agreement. Nothing in
this Agreement shall alter, amend, modify, delete, rescind
or otherwise waive any terms or conditions to which the
Holder, or the securities held by such Holder, may be
subject.
12. 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:
SMART CHOICE HOLDINGS, INC.
0000 Xxxxx Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx Xxxxxxxxxx, Jr.
General Counsel
or at such other address or addresses as shall have been
furnished in writing to the Holder, or
(b) If to the Holder, to the address of the
Holder as it appears in the stock ledger of the Company.
(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.
13. 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 the Holder.
14. 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.
15. 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.
16. 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.
17. 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.
[THIS AREA INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the undersigned has executed this
Agreement as of the ____ day of ______________, 1996.
The Company:
XXXXXX INDUSTRIES, INC.,
a Florida corporation
By:_______________________________________
Name:____________________________________
Title:_____________________________________
The Holder:
__________________________________________
Xxxxx X. Xxxxxx
