EXHIBIT 4.4
-----------
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made as of
________ ___, 1997, by and among Xxxxx International, Inc., a Delaware
corporation ("Xxxxx"), and Xxxxxxx Hemlock, a resident of Hewlett, New York
("MH").
RECITALS
A. Pursuant to an Agreement and Plan of Merger dated as of March 1, 1997,
1997 by and among Xxxxx, Manhattan International Limousine Network Ltd.
("MILN"), a New York corporation, MILN Acquisition Corporation ("Acquisition"),
a Delaware corporation, and MH (the "Merger Agreement"), Acquisition will merge
with and into MILN (the "Merger"), with the result that MILN will be a wholly-
owned subsidiary of Xxxxx;
B. In consideration of the Merger, Xxxxx is issuing and transferring to
MH, among other things, the Shares (as defined below); and
X. Xxxxx has agreed to provide MH with certain rights to require Xxxxx to
register for public distribution the Shares.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Certain Definitions
As used in this Agreement, the following terms shall have the following
respective meanings:
"Commission" means the Securities and Exchange Commission, or any other
----------
federal agency at the time administering the Securities Act (as defined below).
"Common Stock" means shares of Common Stock, par value $.01 per share, of
------------
Xxxxx.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
------------
any similar federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"IPO" means the initial public offering of shares of the Common Stock under
---
a registration statement filed with the Commission pursuant to the Securities
Act on or about the date hereof.
"Registrable Shares" means any Shares held by a Stockholder (as defined
------------------
below) together with any securities issued or issuable with respect to any
Shares held by a Stockholder
by way of stock dividend, stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise.
"Registration Statement" means a registration statement (as defined in the
----------------------
Securities Act) on Form S-1, or any other registration form permitting a
secondary distribution, other than registration statements on Form S-4 or S-8,
or their successors, on which shares of Common Stock are to be registered for
resale for the account of any stockholder, but excluding a registration
statement to be used for the resale of shares of Common Stock by institutional
investors which acquired such shares or securities convertible into such shares
after the date hereof in a transaction not registered under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
--------------
similar federal statute, and the rules and regulations of the Commission issued
under such Act, as they each may, from time to time, be in effect.
"Selling Stockholder" means any of the Stockholders (as defined below) who
-------------------
requests or joins in any registration of Registrable Shares hereunder.
"Shares" means any Shares of Common Stock (as defined below) issued by
------
Xxxxx to MH pursuant to the terms of the Merger Agreement.
"Stockholders" means MH and any family investment company or limited
------------
partnership to which MH transfers any Shares.
2. Sale or Transfer of Shares.
(a) The Stockholders shall not sell or transfer any Shares (other than the
transfer of Shares from MH to a family investment company or limited partnership
in connection with which the transferee agrees to be bound to the same extent as
MH by the provisions of Section 6 of the Merger Agreement to the full extent of
the transferred Shares and any proceeds thereof) unless either (i) they first
shall have been registered under the Securities Act, or (ii) Xxxxx first shall
have been furnished with a written opinion of legal counsel (which counsel and
opinion, in form and substance, shall be reasonably satisfactory to Xxxxx), to
the effect that the proposed sale or transfer is exempt from the registration
requirements of the Securities Act.
(b) Each certificate representing the Shares shall bear one or all of the
following legends:
-2-
(i) "THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
ANY STATE SECURITIES LAWS. NEITHER SUCH SHARES NOR ANY PORTION
THEREOF OR INTEREST THEREIN MAY BE SOLD, ASSIGNED, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF UNLESS THE SAME IS REGISTERED
UNDER SAID ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN
EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE AND THE CORPORATION
SHALL HAVE RECEIVED EVIDENCE OF SUCH EXEMPTION SATISFACTORY TO THE
CORPORATION (WHICH MAY INCLUDE, AMONG OTHER THINGS, AN OPINION OF
COUNSEL SATISFACTORY TO THE CORPORATION).
(ii) any legend required by the laws of the State of Delaware or
applicable state securities laws.
(c) The legend required pursuant to Section 2(b)(i) shall be removed from
the certificates representing any Shares, at the request of the holder thereof,
(i) at such time as they become eligible for resale pursuant to Rule 144(k)
under the Securities Act, (ii) following their sale pursuant to a Registration
Statement, or (iii) at such time as they are sold pursuant to Rule 144 under the
Securities Act, or any other exemption from the Securities Act, in a transaction
that complies with Section 2(a)(ii).
3. Demand Registrations.
(a) At any time or times, but in any event subject to the limitations set
forth in Section 3(d), after Xxxxx becomes eligible to file a Registration
Statement on Form S-3 (or any successor form relating to secondary offerings),
any Stockholder may request Xxxxx, in writing, to effect the registration of
Registrable Shares on Form S-3 (or such successor form) at Xxxxx'x expense.
Upon receipt of any such request, Xxxxx shall promptly give written notice of
such proposed registration to all Stockholders. Each such Stockholder shall
have the right, by giving written notice to Xxxxx within thirty (30) days after
Xxxxx provides its notice, to elect to have included in such registration such
of its Registrable Shares as such Stockholder may request in such notice of
election. Thereupon, Xxxxx shall, as expeditiously as possible, use its best
efforts to effect the registration on Form S-3 (or such successor form) of all
Registrable Shares which Xxxxx has been requested to register. Any offering of
Registrable Shares under the Registration Statement on Form S-3 (or successor
form) shall not be underwritten. If at any time after thirteen months following
the date first set forth above, Xxxxx shall be ineligible to file a Registration
Statement on Form S-3 (or any successor form
-3-
relating to secondary offerings), Xxxxx shall use its best efforts to effect the
requested registration on any available registration form promulgated pursuant
to the Securities Act.
(b) If at the time of any request to register Registrable Shares pursuant
to this Section 3, Xxxxx is engaged or has fixed plans to engage within sixty
(60) days of the time of the request in a registered public offering (by filing
a Registration Statement with the Commission) or is engaged in any other
activity which, in the good faith determination of Xxxxx'x Board of Directors,
would be adversely affected by the requested registration to the material
detriment of Xxxxx, then Xxxxx may at its option direct that such request be
delayed (i) in the case of a registered public offering, for such period as the
underwriters require with respect to any other Xxxxx shareholder holding as many
or more shares of Common Stock, not to exceed six (6) months from the effective
date of such offering or (ii) in the case of another material activity, a period
not exceed six (6) months from the date of commencement of such activity, as the
case may be, such right to delay a request to be exercised by Xxxxx not more
than once in any one-year period.
(c) Notwithstanding Section 3(a), (i) Xxxxx need not include any
Registrable Shares owned by any Stockholder in any Registration Statement
provided for under this Section if in the opinion of counsel for Xxxxx
reasonably satisfactory to the Stockholder, registration of such shares under
the Securities Act is not necessary for the Stockholder to dispose of all of
such shares in the public market in compliance with the Securities Act; provided
that, in such case, the opinion of such counsel shall be in writing addressed to
the Stockholder and shall be rendered within twenty (20) days after Xxxxx
receives the Stockholder's request for registration or the Stockholder's notice
of election to have included in a registration some or all of the Stockholder's
Registrable Shares; and (ii) Xxxxx shall not be required to effect the
registration under this Agreement of a number of Registerable Shares which is
less than twenty-five percent (25%) of the total number of Shares issued by
Xxxxx.
(d) Xxxxx shall not be required to effect more than two registrations
pursuant to paragraph (a) above, provided, however, that each such obligation
shall be deemed satisfied only when a registration statement covering all of the
Registrable Shares specified in notices received as aforesaid, for sale in
accordance with the method of disposition specified by such holders, shall have
become effective.
4. "PIGGYBACK" REGISTRATION.
(a) If at any time Xxxxx delays a requested registration pursuant to
Section 3(b) and proposes to file, during the period that such registration is
delayed, a Registration Statement registering the sale of any shares of Common
Stock owned by any Xxxxx shareholder, it will, prior to such filing, give
written notice to all Stockholders holding Registrable Shares of its intention
to do so, and, upon the written request of any Stockholder given within fifteen
(15)
-4-
days after Xxxxx provides such notice (which request shall state the intended
method of disposition of such Registrable Shares), Xxxxx shall use its best
efforts to cause all Registrable Shares which Stockholders have requested Xxxxx
to register to be registered under the Securities Act; provided, however, that
Xxxxx shall have the right to postpone or withdraw any registration effected
pursuant to this Section 4 without obligation to any Stockholder.
(b) In connection with any offering under this Section 4 involving an
underwriting, Xxxxx shall not be required to include any Registrable Shares in
such underwriting unless the requesting Stockholders accept the terms of the
underwriting as agreed upon between Xxxxx and the underwriters selected by
Xxxxx.
(c) If, in the opinion of the managing underwriter, the registration of all
or part of the Registrable Shares which Stockholders have requested to be
included pursuant to this Section 4 would materially and adversely affect such
public offering, then Xxxxx shall be required to include in the underwriting
only that number of Registrable Shares, if any, which the managing underwriter
believes may be sold without causing such adverse effect. If the number of
Registrable Shares to be included in the underwriting in accordance with the
foregoing is less than the total number of shares which the Stockholders have
requested to be included, then the Stockholders who have requested registration
shall participate in the underwriting pro rata based upon their total ownership
of the aggregate number of shares requested to be included in such registration
by the Stockholders and by any stockholders who have requested that their shares
be included in such registration (or in any proportion as agreed upon by all
stockholders requesting registration).
(d) A Stockholder's rights to register any Registrable Shares or receive
any notice with respect to such Registrable Shares pursuant to this Section 4
shall terminate in the event that (i) all Registrable Shares are registered
pursuant to Article 3 of this Agreement, or (ii) Xxxxx effects a registration
pursuant to Section 4(a) above with respect to such Registrable Shares;
provided, however, that Xxxxx shall only be deemed to have effected a
registration pursuant to Section 4(a) with respect to such Registrable Shares
when a Registration statement covering such Registrable Shares is filed with the
Commission and becomes effective.
5. Registration Procedures.
If and whenever Xxxxx is required by the provisions of this Agreement to
use its best efforts to effect the registration of any of the Registrable Shares
under the Securities Act, Xxxxx shall as expeditiously as possible:
(a) use its best efforts to prepare and file with the Commission within
sixty (60) days from receipt of a request pursuant to Section 3(a) a
Registration Statement with respect to
-5-
such Registrable Shares and use its best efforts to cause that Registration
Statement to become effective;
(b) prepare and file with the Commission any amendments and supplements to
the Registration Statement and the prospectus included in the Registration
Statement as may be necessary to keep the Registration Statement effective for a
period of not less than one hundred eighty (180) days from the effective date;
(c) furnish to each Selling Stockholder such number of copies of the
Registration Statement and prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as such Stockholder may reasonably request in order to facilitate the public
sale or other disposition of the Registrable Shares owned by such Stockholder;
(d) use its best efforts to register or qualify the Registrable Shares
covered by the Registration Statement under the securities or blue sky laws of
such states as the Selling Stockholders shall reasonably request and shall be
required under applicable law, and do any and all other acts and things that may
be reasonably necessary to enable the Selling Stockholders to consummate the
public sale or other disposition in such jurisdictions of the Registrable Shares
owned by the Selling Stockholders; provided, however, that Xxxxx shall not be
required in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction;
(e) immediately notify each Selling Stockholder, 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 contained
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 and provide the Selling Stockholders with
revised prospectuses; and
(f) make available for inspection by each Selling Stockholder, and any
attorney, accountant or other agent retained by a Selling Stockholder, all
financial and other records, pertinent corporate documents and properties of
Xxxxx, and cause Xxxxx'x officers, directors and employees to supply all
information reasonably requested by such Selling Stockholder, attorney,
accountant or agent in connection with such Registration Statement.
6. Allocation of Expenses.
Xxxxx will pay all Registration Expenses (as defined below) of all
registrations under this Agreement; provided, however, that if a registration is
withdrawn at the request of the
-6-
Selling Stockholders, the Selling Stockholders shall pay the Registration
Expenses of such registration pro rata in accordance with the number of their
Registrable Shares included in such registration. For purposes of this Section,
the term "Registration Expenses" shall mean all expenses incurred by Xxxxx in
complying with this Agreement, including, without limitation, all registration
and filing fees, exchange or NASDAQ listing fees, printing expenses, accounting
fees, fees and disbursements of counsel for Xxxxx, state blue sky fees and
expenses of special audits incident to or required by such registration, but
excluding underwriting discounts and selling commissions relating to the
Registrable Shares and fees and disbursements of counsel to the Selling
Stockholders.
7. Indemnification.
(a) In the event of any registration of any of the Registrable Shares under
the Securities Act pursuant to this Agreement, Xxxxx will indemnify and hold
harmless each Selling Stockholder, each underwriter of such Registrable Shares,
and each person, if any, who controls such Stockholder or underwriter within the
meaning of the Securities Act or the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which such Stockholder, underwriter
or controlling person may become subject under the Securities Act, the Exchange
Act, state securities laws 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 Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or any offering circular or other
document related to such registration, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, or arise out
of or are based on any violation by Xxxxx of any rule or regulation promulgated
under the Securities Act, the Exchange Act, state securities laws or otherwise,
applicable to Xxxxx and relating to any action or registration required of the
Xxxxx in connection with any such registration; and Xxxxx will reimburse such
Stockholder, underwriter and each such controlling person for any legal or any
other expenses reasonably incurred by such Stockholder, underwriter or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that Xxxxx will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or omission made
in (i) such Registration Statement, preliminary prospectus or final prospectus,
or any such amendment or supplement, in reliance upon and in conformity with
information furnished to Xxxxx, in writing, by or on behalf of such Stockholder,
underwriter or controlling person specifically for use in the preparation
thereof or (ii) a preliminary prospectus, if a copy of a final prospectus
correcting any such untrue statement or omission was timely delivered to such
selling Stockholder.
-7-
(b) In the event of any registration of any of the Registrable Shares under
the Securities Act pursuant to this Agreement, each Selling Stockholder,
severally and not jointly, will indemnify and hold harmless Xxxxx, each
underwriter and each person, if any, who controls Xxxxx or any such underwriter
within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages or liabilities, joint or several, to which Xxxxx, such
underwriter or controlling person may become subject under the Securities Act,
Exchange Act, state securities laws 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 a material
fact contained in any Registration Statement under which such Registrable Shares
were registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if the
statement or omission pertained to such Stockholder and was made in reliance
upon and in conformity with information furnished in writing to Xxxxx by or on
behalf of such Stockholder, specifically for use in connection with the
preparation of such Registration Statement, prospectus, amendment or supplement;
provided, however, that the obligations of each Stockholder hereunder shall be
limited to the proportion of any such losses, claims, damages or liabilities
that are equal to the proportion that the public offering price of the
Registrable Shares sold by each such Stockholder bears to the total offering
price of all securities sold thereunder, but not in any event to exceed an
amount equal to the proceeds to each such Stockholder sold as contemplated
herein.
(c) Each party entitled to indemnification under this Section 7 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld). The failure of any Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under this
Section 7, but as a result of any such failure, the Indemnifying Parties shall
not be liable to the Indemnified Party for the amount of actual damages caused
by such failure. The Indemnified Party may participate in such defense at such
party's expense; provided, however, that the Indemnifying Party shall pay such
expense if representation of such Indemnified Party by the counsel retained by
the Indemnifying Party would be inappropriate due to actual or potential
differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding. No Indemnifying Party, in the
defense of any such claim or litigation shall, except with the consent of each
Indemnified Party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such
-8-
Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party.
8. Information by Selling Stockholders.
Each Selling Stockholder shall furnish to Xxxxx such information regarding
such Stockholder and the distribution proposed by such Stockholder as Xxxxx may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to herein.
9. "Lockup" Agreement.
If required by Xxxxx and the managing underwriter of Common Stock or other
securities of Xxxxx, each Stockholder shall agree not to sell or otherwise
transfer or dispose of any Registrable Shares or other securities of Xxxxx held
by such Stockholder for a specified period of time (not to exceed one hundred
and eighty (180) days) following the effective date of a Registration Statement
(the "Stand-Off Period"). Such agreement shall be in writing in a form
satisfactory to Xxxxx and such underwriter. Xxxxx may impose stop-transfer
instructions with respect to the Registrable Shares or other securities subject
to the foregoing restriction until the end of the Stand-Off Period.
10. ASSIGNMENT; SUCCESSORS AND ASSIGNS. The rights and obligations of any
party to this Agreement shall not be assigned without the written consent of the
other parties, except that Xxxxx shall have the absolute right to assign this
Agreement to an affiliated or successor entity. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors, heirs, personal representatives and assigns.
11. Termination. This Agreement shall terminate on the third anniversary
of the date hereof.
12. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered in person or by electronic facsimile transmission,
when mailed by registered or certified mail (postage prepaid, return receipt
requested) or delivered to a courier of national reputation to the respective
parties as follows:
-9-
If to Xxxxx:
Xxxxx International, Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx,
Chairman of the Board
with a copy to:
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
If to any Stockholder, to such Stockholder at:
000 Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
with a copy to:
Patterson, Belknap, Xxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxx Xxxxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
13. Entire Agreement. This Agreement embodies the entire agreement
and the understanding between the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter.
14. Amendments and Waivers. Except as otherwise expressly set forth in
this Agreement, any term of this Agreement may be amended and the observance of
any term of
-10-
this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively), with the written consent of Xxxxx and
the holders of more than 50% of the Registrable Shares. Any amendment or waiver
effected in accordance with this Section 14 shall be binding upon each holder of
any Shares or Registrable Shares, each future holder of all such securities and
Xxxxx. No waivers of or exceptions to any term, condition or provision of this
Agreement, in any one or more instances, shall be deemed to be, or construed as,
a further or continuing waiver of any such term condition or provision.
15. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
16. Headings. The headings of the sections, subsections, and paragraphs
of this Agreement have been added for convenience only and shall not be deemed
to be a part of this Agreement.
17. Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
18. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws, but not the laws of conflict of laws, of the
State of Delaware.
IN WITNESS WHEREOF, the undersigned have hereunto set their hands under
seal as of the day and year first above written.
XXXXX INTERNATIONAL, INC.
By: _______________________________________________
Title:
___________________________________________________
Xxxxxxx Hemlock
-11-
