EXHIBIT 4.6
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of
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February __, 2000, by and between xxxx.xxx, Inc., a Delaware corporation (the
"Company"), and the undersigned individual ("Stockholder").
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RECITALS
A. This Agreement is entered into in connection with the Agreement
and Plan of Merger, dated as of February 7, 2000 and by and among
the Company, a wholly-owned subsidiary of the Company and Comfort
Living, Inc., a Maryland corporation ("XxxxxxxXxxxxx"), and which
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provides for the acquisition of XxxxxxxXxxxxx by the Company (the
"Merger Agreement", and such acquisition, the "Merger").
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Capitalized terms used in this Agreement and not otherwise defined
herein shall have the meanings ascribed to them in the Merger
Agreement.
B. Stockholder is the record and beneficial owner of shares of the
capital stock of the Company and/or is the holder of Rights
pertaining to the Company Common Stock.
C. Pursuant to the Merger Agreement, at the effective time of the
Merger (the "Effective Time"), each outstanding share of the
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capital stock of the Company will be converted into, and each
outstanding Right pertaining to the Company Common Stock will be
terminated in exchange for, the right to receive shares of the
common stock of Parent ("Shares") and cash.
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement, the parties
mutually agree as follows:
1. Piggyback Registration Rights.
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1.1 If, at any time after 180 days following the date of the closing
of Parent's initial public offering of shares of its common stock ("Common
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Stock") pursuant to a registration statement on Form S-1 under the Securities
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Act of 1933, as amended (the "Securities Act")(if any), the Company proposes
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to register Common Stock under the Securities Act in connection with any
offering of Common Stock (other than a registration statement on Form S-8 or
Form S-4, or their successors, or any other form for a limited purpose or
which otherwise does not include at least substantially the same information
as would be required to be included in a registration statement covering the
sale of registrable securities, or any registration statement covering only
securities proposed to be issued in exchange for securities or assets of
another
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entity), whether or not for its own account, the Company shall furnish prompt
(but in no event later than fourteen (14) days prior to the filing of the
applicable registration statement) written notice to Stockholder of its
intention to effect such registration and the intended method of distribution
in connection therewith. Upon the written request of Stockholder made to the
Company within fourteen (14) days after the furnishing such notice by the
Company, the Company shall include in such registration the requested number
of Shares (the "Registrable Securities"), subject to the provisions hereof and
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other customary terms, conditions, limitations and cut-backs relating to the
registration of securities generally and any restrictions on transfer of
Shares pursuant to any agreement between Stockholder and the Company;
provided, that all rights granted to Stockholder pursuant to this Section 1
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shall terminate with respect to any Registrable Securities held by Stockholder
upon the earliest to occur of (i) the time when all of the Registrable
Securities may immediately be sold pursuant to Rule 144 under the Securities
Act within any ninety (90) day period, (ii) upon any sale of the Registrable
Securities pursuant to a registration statement or Rule 144 under the
Securities Act or (iii) the date two (2) years after the date hereof.
1.2 Nothing in this Section 1 shall create any liability on the part
of the Company or any other person to Stockholder if the Company or any other
person should, for any reason, decide not to file a registration statement
proposed to be filed or to withdraw such registration statement subsequent to
its filing, regardless of any action whatsoever that Stockholder may have
taken, whether as a result of the issuance by the Company of any notice under
this Section 1 or otherwise.
1.3 It shall be a condition precedent to the obligation of the
Company to include any Registrable Securities in a registration statement
pursuant to this Section 1 that Stockholder shall furnish to the Company such
information regarding himself, the Registrable Securities held by him, and the
intended method of disposition of such securities as shall be required to
effect the registration of the Registrable Securities held by Stockholder. Any
such information, or any comments on any such information included in a draft
of a registration statement provided to Stockholder for his comment, shall be
provided to the Company within any reasonable time period requested by the
Company.
1.4 The Company may suspend any applicable registration statement
and require that Stockholder immediately cease the sale of Shares pursuant to
the registration statement in any period during which the Company is engaged
in any activity or transaction or preparations or negotiations for any
activity or transaction (the "Company Activity") that the Company in good
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faith desires to keep confidential for business reasons, if the Company
determines in good faith (and so certifies to Stockholder) that the public
disclosure requirements imposed on the Company under the Securities Act in
connection with the registration statement would require disclosure of the
Company Activity, or during which there exists any other material non-public
information relating to the Company which the Company determines in good faith
should not be disclosed; provided that (i) the Company shall use commercially
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reasonable efforts to minimize the length of any such period of suspension,
and (ii) any such suspension shall be applied in the same manner to any other
registration statement or proposed offering of the Company's securities
proposed or then in effect.
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1.5 Stockholder shall notify the Company, at any time when a
prospectus is required to be delivered under applicable law, of the happening
of any event as a result of which the prospectus included in the applicable
registration statement, as then in effect, with respect to information
provided or confirmed by Stockholder, 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 light of the
circumstances then existing. Stockholder shall immediately upon the occurrence
of any such event cease using such prospectus. If so requested by the Company,
Stockholder promptly shall return to the Company any copies of any prospectus
in its possession (other than permanent file copies) that contains 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
light of the circumstances then existing.
1.6 The Company shall bear and pay all reasonable expenses incurred
by it in connection with any registration, filing or qualification of the
Registrable Securities pursuant to this Section 1, including (without
limitation) all registration, filing and qualification fees, printers' and
accounting fees, fees and disbursements of counsel for the Company, but
excluding underwriting discounts and commissions relating to the Registrable
Securities. The Company shall not be responsible for any costs, fees or
expenses of any counsel separately retained to act on behalf of Stockholder in
connection with any registration, filing or qualification hereunder.
1.7 In connection with any underwritten offering of securities, the
Company shall not be required under this Section 1 to register any of the
Registrable Securities in connection with such underwritten offering unless
Stockholder accepts the underwriters selected by the Company and executes an
underwriting agreement with such underwriters containing such provisions as
are customary in an underwritten offering that includes shares held by a
stockholder. Registrable Securities shall be sold in such offering only in
such quantity as the lead managing underwriter determines, in its sole
discretion, will not jeopardize the success of the offering by the Company. To
the extent that the lead managing underwriter determines that attempting to
sell all of the securities sought to be registered may jeopardize the success
of the offering, the securities to be included shall be apportioned as
follows: (i) first, the Company and any holders of securities of the Company
exercising any demand registration rights granted to such holders shall be
entitled to register all securities that the Company or such other holders
propose to sell for their own accounts, in such proportion as they shall agree
upon; (ii) second, any holders of the Company securities exercising piggyback
registration rights as and to the extent that such registration rights have
priority over the registration rights granted to Stockholder hereunder; and
(iii) lastly, Stockholder, together with any holders of other the Company
securities exercising piggyback registration rights as and to the extent that
such registration rights rank pari passu with the piggyback registration
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rights hereunder, shall be entitled to register, on a pro rata basis, up to
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that number of Registrable Securities and other shares of Common Stock that is
equal to the remaining shares of Common Stock that the lead managing
underwriter will permit to be registered after giving effect to the
apportionment set forth in clauses (i) and (ii) above, in connection with such
offering.
1.8 The Company shall use its best efforts to register or qualify
the Registrable Securities under the securities laws of such states as
Stockholder shall reasonably
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request in writing; provided that the Company shall not be required in
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connection with this Section 1.8 to qualify as a foreign corporation or
execute a general consent to service of process in any jurisdiction.
1.9 Stockholder shall not have any right to obtain or seek an
injunction restraining or otherwise delaying any registration as the result of
any controversy that might arise with respect to the interpretation or
implementation of this Section 1.
2. Indemnification.
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2.1 To the extent permitted by law, the Company will indemnify and
hold harmless Stockholder against any losses, claims, damages, or liabilities
to which he may become subject under the Securities Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or other federal or
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state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any of the following
statements, omissions or violations (collectively a "Violation") by the
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Company: (i) any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein or any amendments or
supplements thereto, (ii) 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, or (iii) any violation or alleged violation
by the Company of the Securities Act, the Exchange Act, any state securities
law or any rule or regulation promulgated under the Securities Act, the
Exchange Act or any state securities law in connection with the offering
covered by such registration statement; and the Company will reimburse
Stockholder for any legal or other expenses reasonably incurred by him in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, that the indemnity agreement contained in this
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Section 2.1 shall not apply to amounts paid in settlement of any such loss,
claim, damage, liability or action if such settlement is effected without the
consent of the Company, which consent shall not be unreasonably withheld, nor
shall the Company be liable in any such case for any such loss, claim, damage,
liability or action to the extent that it arises out of or is based upon a
Violation which occurs in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration
by Stockholder.
2.2 To the extent permitted by law, Stockholder will, if Shares held
by Stockholder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify and hold harmless the
Company, each of its directors and officers, its legal counsel, each Person,
if any, who controls the Company within the meaning of the Securities Act,
each underwriter and each other shareholder selling securities under such
registration statement against any losses, claims, damages or liabilities
(joint or several) to which the Company or any such director, officer,
counsel, controlling Person, underwriter or other shareholders may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by Stockholder; and
Stockholder will reimburse any legal or other
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expenses reasonably incurred by the Company or any such director, officer,
counsel, controlling Person, underwriter or other shareholders in connection
with investigating or defending any such loss, claim, damage, liability or
action if it is judicially determined that there was such a Violation;
provided that the indemnity agreement contained in this Section 2.2 shall not
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apply to amounts paid in settlement of any such loss, claim, damage, liability
or action if such settlement is effected without the consent of Stockholder,
which consent shall not be unreasonably withheld.
3. Miscellaneous.
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3.1 Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute but one and the same instrument.
3.2 Successors and Assigns. This Agreement shall be enforceable by
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and shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns, provided that Stockholder's right to
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register the Registrable Securities pursuant to Section 1 may be assigned (but
only with all related obligations) by Stockholder to a permitted transferee or
assignee of such securities who, after such assignment or transfer, holds at
least a majority of the shares of Registrable Securities initially held by
Stockholder pursuant to the Acquisition Agreements (subject to appropriate
adjustment for stock splits, stock dividends, combinations and other
recapitalizations); and provided, further, that: (a) Company is, within a
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reasonable time after such transfer, furnished with written notice of the name
and address of such transferee or assignee and the securities with respect to
which such registration rights are being assigned; (b) such transferee or
assignee agrees in writing to be bound by and subject to the terms and
conditions of this Agreement; and (c) such assignment shall be effective only
if immediately following such transfer the further disposition of such
securities by the transferee or assignee is restricted under the Securities
Act. As used herein, the terms "successors and assigns" shall mean, where the
context so permits, heirs, executors, administrators, trustees and successor
trustees, and personal and other representatives.
3.3 Governing Law. This Agreement shall be governed by and construed,
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interpreted and enforced in accordance with the laws of the State of California,
without regard to the principles of conflicts of laws. Each of the parties
irrevocably waives the right to a jury trial in connection with any legal
proceeding relating to this Agreement and the other Transaction Agreements or
the enforcement of any provision of this Agreement or the other Transaction
Agreements.
3.4 Notices. Any notice or other communication required or permitted
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to be delivered to any party under this Agreement shall be in writing and
shall be deemed properly delivered, given and received when delivered (by
hand, by registered mail, by courier or express delivery service or by
telecopier during business hours) to the address or telecopier number set
forth beneath the name of such party on the signature page of this Agreement
(or to such other address or telecopier number as such party shall have
specified in a written notice given to the other party hereto).
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3.5 Severability. If any provision of this Agreement is held to be
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unenforceable for any reason, such provision and all other related provisions
shall be modified rather than voided, if possible, in order to achieve the
intent of the parties to this Agreement to the extent possible. In any event,
all other unrelated provisions of this Agreement shall be deemed valid and
enforceable to the full extent.
3.6 Gender and Number. Whenever the context of this Agreement
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requires, the gender of all words herein shall include the masculine, feminine
and neuter, and the number of all words herein shall include the singular and
plural.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
XXXX.XXX, INC.
By: _________________________________________
Name:
Title:
000 Xxxxx Xx., Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000
STOCKHOLDER:
______________________________________________
Name:
Address: _____________________________________
______________________________________________
______________________________________________
Facsimile: ___________________________________
______________________________________________
(Print Taxpayer Identification Number)
[THIS SIGNATURE PAGE TO BE DUPLICATED FOR EACH STOCKHOLDER]
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