1
EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of June
16, 1997, is entered into by and among XXXXX ENTERPRISES, INCORPORATED, a
Florida corporation ("SEi"), and ROLF XXXXXXXX XXXXXX, XXXXXX XXXXX, XXXXXXX
XXXXXX, XXXXXX XXXXXXXXX, XXXX XXXXXXXX, and XXXX XXXXXX, each an individual
residing in the Federal
Republic of Germany (collectively, the "Sellers").
WHEREAS, this Agreement is made in connection with the sale by the
Sellers of all the outstanding quotas (the "Quotas") of Telcare Gesellschaft
fur Telekommunikations -Mehrwertdienste mbH, a limited liability company
organized under the laws of the Federal Republic of Germany ("Telcare"), to
Xxxxx Enterprises GmbH, a limited liability company organized under the laws of
the Federal Republic of Germany and a wholly-owned subsidiary of SEi (the
"Buyer"), pursuant to the Acquisition Agreement dated May 30, 1997 among SEi,
the Buyer and the Sellers (the "Acquisition Agreement").
WHEREAS, in order to induce the Sellers to enter into the Acquisition
Agreement, SEi has agreed to provide the Sellers with the registration rights
set forth in this Agreement.
WHEREAS, the execution and delivery of this Agreement is a condition
to the sale of the Quotas to the Buyer.
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
1. DEFINITIONS.
Common Stock: The common stock, par value $.01 per share, of SEi.
Holder: A Seller so long as such Seller owns any Registrable
Securities and any of such Seller's respective successors and assigns who
acquire rights in accordance with this Agreement with respect to Registrable
Securities directly or indirectly from such Seller, or from such other
successor and assign, and who agree in writing, in form and substance
satisfactory to SEi, to be bound hereby.
Registration Expenses: Any and all reasonable expenses actually
incurred incident to performance of or compliance with this Agreement other
than underwriting discounts and commissions and transfer taxes, if any, but
including up to $5,000 in the aggregate of the legal expenses of the Holders
incurred with respect to the registration of Registrable Securities.
Registrable Securities: The shares constituting the Subject Common
Stock; provided, however, that specific shares of the Subject Common Stock
shall not be Registrable Securities if and to the extent that (i) a
Registration Statement with respect to such shares of Subject Common
2
Stock shall have been declared effective under the Securities Act and such
shares of Subject Common Stock shall have been disposed of in accordance with
such Registration Statement, (ii) such shares of Subject Common Stock shall
have been distributed to the public in accordance with Rule 144 (or any
successor provision) promulgated under the Securities Act, (iii) such shares of
Subject Common Stock shall have been otherwise transferred in accordance with
the provisions of this Agreement and the Acquisition Agreement, and new
certificates for them not bearing a legend restricting further transfer shall
have been delivered by SEi, or (iv) the transfer of such shares of Subject
Common Stock is prohibited by Section 4.28(f) of the Acquisition Agreement.
Registration Statement: Any registration statement of SEi filed with
the SEC which provides for the registration for sale or other transfer of the
Registrable Securities (in whole or in part), including the prospectus included
therein, all amendments and any supplements to such Registration Statement,
including post-effective amendments, all exhibits and all material incorporated
by reference in such Registration Statement.
SEC: The United States Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended from time to
time, or any successor statute, and the rules and regulations of the SEC
thereunder, all as in effect at the time.
Subject Common Stock: The shares of Common Stock issued to the Sellers
pursuant to the Acquisition Agreement and any additional shares of Common Stock
or shares of any other security of SEi issued in respect of such shares, by way
of stock splits, stock dividends, or otherwise.
2. REGISTRATION UNDER THE SECURITIES ACT
(a) REGISTRATION ON DEMAND.
(i) Request for Registration. At any time during the period
beginning August 15, 1997 and ending on the first anniversary of the date of
issuance of the Subject Common Stock (the "Date of Issuance") and subject to
Sections 2(c) and 2(d), the Holder or Holders of a majority of the Registrable
Securities then outstanding may, by written notice to SEi, require SEi to
effect the registration under the Securities Act of Registrable Securities (a
"Demand Registration").
The notice requesting a Demand Registration shall specify the method of
distribution of the Registrable Securities to be covered. Upon receipt of such
notice, SEi will promptly give written notice of such requested registration (
a "Section 2(a) Notice") to any and all other Holders who hold of record any
Registrable Securities and thereupon will file a Registration Statement in form
and scope sufficient to permit, under the Securities Act and any other
applicable law and regulations, the Registrable Securities to be registered in
accordance with the methods of distribution specified in such requests (the
"Demand Registration Statement"). SEi shall use its
2
3
best efforts to have the Demand Registration Statement declared effective as
promptly as practicable (but in no event later than 120 days after such
request) and to keep the Demand Registration Statement continuously effective
until the first anniversary of the Date of Issuance or, if shorter, until such
time as all the Registrable Securities covered by the Demand Registration
Statement have been sold pursuant thereto. The Demand Registration Statement
shall provide for the registration under the Securities Act of:
(A) the Registrable Securities which SEi has been so requested to
register by such Holder or Holders, and
(B) all other Registrable Securities which SEi has been requested
to register by any other Holders of Registrable Securities by written request
(specifying the intended method of distribution thereof) given to SEi within 15
days after the giving of the Section 2(a) Notice.
SEi may on one occasion only postpone filing a Demand Registration Statement
under this Section 2(a) for a reasonable period (not in excess of 90 days) if
in its reasonable judgment such filing would require the disclosure of material
information that SEi has a bona fide business purpose for preserving as
confidential. SEi shall be obligated to effect a Demand Registration pursuant
to this Section 2(a) only once.
(ii) Registration Statement Form. Registrations under this Section
2(a) shall be on such appropriate registration forms of the SEC as shall be
selected by SEi, be reasonably acceptable to the Holder or Holders who are the
registered holders of at least a majority of the Registrable Securities to be
registered pursuant to this Section 2(a) and permit the disposition of
Registrable Securities in accordance with the intended method or methods of
disposition specified in the requests for registration relating thereto.
(iii) Expenses. SEi shall pay all Registration Expenses in connection
with the registration pursuant to this Section 2(a) and the Holder or Holders
requesting registration pursuant to this Section 2(a) shall pay all
underwriting discounts and commissions, any transfer taxes and any expenses of
counsel for any Holder or Holders not expressly included in Registration
Expenses relating to the sale or disposition of such Holder's Registrable
Securities pursuant to such Registration Statement.
(iv) Effective Registration Statement. A registration requested pursuant
to Section 2(a) hereof will not be deemed to have been effected unless it has
been declared effective by the SEC and not less than eighty-five percent (85%)
of the Registrable Securities covered thereby are sold in accordance with the
terms and conditions set forth therein; provided, however, that if, after it
has been declared effective, the offering of Registrable Securities pursuant to
such registration is interfered with by a stop order, injunction or other order
or requirement of the SEC or any other governmental agency or court, such
registration will be deemed not to have become effective or to have been
effected.
3
4
(v) Selection of Underwriter. If any of the Registrable Securities
covered by the Demand Registration are to be sold in an underwritten offering,
SEi shall select the underwriter or underwriters in its sole discretion. SEi
and the Holders will take all reasonable steps to cooperate with the
underwriter or underwriters so selected to conduct the offering in a manner
customary for such underwritten offering, including without limitation entering
into an underwriting agreement with such underwriters.
(vi) Registration Not Required. Notwithstanding the other provisions
of Section 2(a), SEi shall not be required to effect a Demand Registration
under this Section 2(a):
(A) after SEi has delivered notice of a Piggyback Registration
pursuant to Section 2(b) and for so long as such Piggyback Registration is
pending;
(B) for Registrable Securities owned by any Holder that did not, by
delivering the requisite notice, exercise its right to register such
Registrable Securities in a Piggyback Registration when so offered by SEi under
Section 2(b); or
(C) if the Demand Registration covers Registrable Securities with
an aggregate market value of less than $ 250,000 or which represent less than a
majority of the Registrable Securities then outstanding.
(b) PIGGYBACK REGISTRATIONS.
(i) Right to Piggyback. Subject to Sections 2(c) and 2(d) hereof, if at
any time SEi proposes to file a Registration Statement under the Securities Act
with respect to any offering of the Common Stock by SEi for its own account
and/or on behalf of any of its security holders (other than (i) a registration
on Form S-8 or S-4 or any successor form, (ii) a registration relating to a
transaction subject to Rule 145 under the Securities Act, or (iii) any
registration of securities as it relates to an offering and sale to management
of SEi pursuant to any employee stock plan or other employee benefit plan
arrangement) then, as soon as practicable (but in no event less than twenty
(20) days prior to the proposed date of filing such Registration Statement),
SEi shall give written notice of such proposed filing to the Holders, and such
notice shall offer the Holders the opportunity to register such number of
Registrable Securities as the Holders may request (a "Piggyback Registration").
Subject to subsection 2(d), SEi shall include in such Registration Statement
all Registrable Securities requested within fifteen (15) days after the receipt
of any such notice (which request shall specify the Registrable Securities
intended to be disposed of by the Holders to be included in the registration
for such offering pursuant to a Piggyback Registration), provided, however,
that if, at any time after giving written notice of its intention to register
Common Stock and prior to the effective date of the Registration Statement
filed in connection with such registration, SEi shall determine for any reason
not to register or to delay registration of the Common Stock to be registered
for sale by SEi, SEi may, at its election, give written notice of such
determination to the Holder of Registrable Securities and, thereupon, (i) in
the case of a
4
5
determination not to register, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration (but not from
its obligation to pay the Registration Expenses in connection therewith), and
(ii) in the case of a determination to delay registering, shall be permitted to
delay registering any Registrable Securities, for the same period as the delay
in registering such Common Stock.
(ii) Piggyback Expenses. The Registration Expenses of the Holders
of Registrable Securities will be paid by SEi in a Piggyback Registration.
Underwriting discounts and commissions and transfer taxes, if any, incurred
with respect to the Registrable Securities shall be borne by the Sellers.
(c) UNDERWRITER'S CUTBACK. Notwithstanding Sections 2(a) and 2(b), if
a Demand Registration or a Piggyback Registration is an underwritten offering
being made on behalf of SEi, and the managing underwriter or underwriters
advise SEi in writing that in their opinion the number of shares of Common
Stock requested to be included in such registration exceeds the number which
can be sold in such offering or would be reasonably likely to adversely affect
the price or distribution of the Common Stock offered in such offering or the
timing thereof, then the shares of Common Stock to be included in such
registration shall be the number of shares of Common Stock, adjusted on a pro
rata basis, that, in the opinion of such underwriter or underwriters, can be
sold without an adverse effect on the price, timing or distribution of the
Common Stock to be included. In an underwritten demand registration, the number
of shares to be sold by SEi or other selling shareholders shall be reduced in
accordance with such opinion and, if necessary, eliminated, before there shall
be any reduction in the number of shares to be sold by Holders.
(d) REGISTRATION NOT REQUIRED. Notwithstanding Sections 2(a) and 2(b),
in the event the Holder or Holders request that any of the Registrable
Securities covered by this Agreement be sold in an underwritten offering or
otherwise request registration pursuant to this Agreement, SEi shall not be
required to take the action required or contemplated herein to accommodate or
permit such underwritten offering or other registration of the shares subject
to the request if SEi has provided to the requesting Holders an unqualified
opinion of counsel knowledgeable in Securities Act matters to the effect that
all of such Registrable Securities may immediately be sold by such Holders in a
brokered transaction under Rule 144 during any ninety (90) day period without
registration under the Securities Act and applicable state securities laws.
3. HOLD-BACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY THE HOLDERS. In the event
Registrable Securities are covered by a Registration Statement filed pursuant
to Section 2 of this Agreement, the Holders agree not to effect any public sale
or distribution of Common Stock, including a sale pursuant to Rule 144 under
the Securities Act, during the 15-day period prior to, and during the 90-day
period beginning on, the effective date of such Registration
5
6
Statement (except pursuant to such Registration Statement), if, and then only
to the extent, so requested in writing by SEi, in the case of a
non-underwritten public offering, or by the managing underwriter or
underwriters, in the case of an underwritten offering.
(b) RESTRICTIONS ON PUBLIC SECURITY SALE BY SEI. SEi agrees not to make any
filing to register and agrees not to effect or offer to effect any public sale
or distribution of or purchase any security (other than any such sale or
distribution of such Common Stock in connection with any transaction subject to
Rule 145 under the Securities Act or in connection with offers and sales to
employees under employee benefit plans) during the 15-day period prior to, and
during the 90-day period beginning on, the effective date of any Registration
Statement filed pursuant to Section 2(a) hereof.
4. REGISTRATION PROCEDURES. In connection with SEi's obligations under
Section 2 hereof, SEi shall use it best efforts to effect or cause to be
effected the registration of the Registrable Securities under the Securities
Act to permit offers and sales in accordance with the intended method or
methods of distribution thereof. SEi may require the Holders to use their best
efforts to furnish to SEi such information regarding the distribution of the
Registrable Securities as SEi may from time to time reasonably request in
writing. SEi agrees to obtain customary services and materials from its counsel
and accountants and to perform all requirements in connection with any offering
required by Section 2, including without limitation such customary opinions of
counsel and "cold comfort" letters from independent certified public
accountants as are reasonably requested by any underwriters. SEi further agrees
to (i) furnish Holders for whom shares are registered such number of copies of
a prospectus and preliminary prospectus, if applicable, as such Holders may
reasonably request; (ii) enter into customary agreements, including an
underwriting agreement (which shall include the indemnification and
contribution provisions under Section 5 or similar provisions), and to make
customary representations to any underwriters with respect to the registration
statement; (iii) make available to any underwriters its offices and records as
reasonably requested for the purpose of allowing the underwriters to conduct a
customary "due diligence" investigation; and (iv) list the shares registered on
such Holder's or Holders' behalf on the exchange or quotation system on which
the SEi Common Stock is at the time listed.
5. INDEMNIFICATION.
(a) SEi agrees to indemnify, to the extent permitted by law, each Holder
of Registrable Securities and (as applicable) its officers and directors and
each person or entity who controls such Holder (within the meaning of the
Securities Act) 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, (in the case of a prospectus, always in
light of the circumstances under which the statements are made) except insofar
as the same are caused by or contained in any information furnished
6
7
in writing to SEi by such Holder or its affiliate 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 SEi has furnished
such Holder with a sufficient number of copies of the same. In connection with
an underwritten offering, SEi will indemnify such underwriters, their officers
and directors and each person or entity who controls such underwriters (within
the meaning of the Securities Act) 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 will furnish to
SEi in writing such information and affidavits as SEi reasonably requests for
use in connection with any such registration statement or prospectus and, to
the extent permitted by law, will indemnify SEi, its directors and officers and
each person or entity and entity who controls SEi (within the meaning of the
Securities Act) 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, (in the case of a prospectus, always in
light of the circumstances under which the statements are made) but only to the
extent that such untrue statement or omission is contained in any information
or affidavit so furnished in writing by such Holder or its affiliate; provided
that the obligation to indemnify will be several, not joint and several, among
such Holders of Registrable Securities and the liability of each such Holder of
Registrable Securities in the event that more than one Holder is liable will be
in proportion to and limited to the net amount received by such Holder from the
sale of Registrable Securities pursuant to such registration statement.
(c) Any person or entity entitled to indemnification hereunder will
(i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification; provided, however, that failure to
give such notice will not prejudice such person's or entity's right to
indemnification from the indemnifying party, except as to any losses suffered
by such person or entity which are attributable to such person's or entity's
failure to promptly give such notice to such indemnifying party 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. The indemnifying party will
not be subject to any liability for any settlement made by the indemnified
party without its consent (but such consent will not be unreasonably withheld).
An indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will 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 of such indemnified parties with respect to such claim.
7
8
(d) The indemnification provided for under this Agreement will
remain in full force and effect regardless of any investigation made by or on
behalf of the indemnified party or any officer, director or controlling person
or entity of such indemnified party and will survive the transfer of securities
and the termination of this Agreement. SEi also agrees to make such provisions
as are reasonably requested by any indemnified party for contribution to such
party in the event SEi's indemnification is unavailable or unenforceable for
any reason.
6. REGULATION S OFFERING. The Sellers agree that none of the
Registrable Securities will be offered for sale pursuant to Regulation S (as
promulgated by the SEC) without the prior written consent of SEi.
7. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. SEi has not entered into and will
not on or after the date of this Agreement enter into any agreement with
respect to the Common Stock which is inconsistent with the rights granted in
this Agreement to the Sellers or which otherwise conflicts with the provisions
hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless (i) SEi has obtained the written consent of the
Holders to such amendment, modification, or supplement or (ii) SEi has obtained
from each Holder a waiver or consent to such departure.
(c) NOTICES. All notices and other communications provided for or
permitted under this Agreement shall be in writing and given by personal
delivery, or, if mailed, by certified first-class mail, postage prepaid, or by
telex or telecopier with transmission confirmed by telephone:
(i) if to the Holders, at the address set forth in the
Acquisition Agreement, or at the most current address given by the Holders to
SEi by means of a notice given in accordance with the provisions of this
Section 7(c).
(ii)if to SEi, at the address set forth in the Acquisition
Agreement, or at the most current address given by SEi to the Sellers by means
of a notice given in accordance with the provisions of this Section 7(c).
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
8
9
(e) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Florida.
(g) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(h) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto will bind and inure to
the benefit of the respective permitted 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 other permitted holders of Registrable Securities are
also for the benefit of, and enforceable by, any subsequent permitted Holder of
Registrable Securities. The registration rights of the Holders under this
Agreement may be transferred to any transferee who lawfully acquires at least
fifteen thousand (15,000) shares of the Registrable Securities; provided,
however, that SEi is given written notice by the Holder at the time of such
transfer stating the name and address of the transferee and identifying the
securities with respect to which the rights under this Agreement are being
assigned; and provided further, that such transferee is a person who is
reasonably satisfactory to SEi and executes an agreement in writing agreeing to
be bound by the provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
XXXXX ENTERPRISES, INCORPORATED
By:/s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: Vice president - Finance &
Treasurer
-------------------------------
[Signatures continued on next page]
9
10
SELLERS:
/s/ Rolf Xxxxxxxx Xxxxxx
-----------------------------------
Rolf Xxxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxx
-----------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxxx
-----------------------------------
Xxxx Xxxxxxxx
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
10
