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EXHIBIT 4.4
STOCK REGISTRATION RIGHTS AGREEMENT
THIS STOCK REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of ____________, 199_, by and among XXXXXXXXXX INTERNATIONAL,
INC., a Texas corporation formerly known as ICO, Inc. (the "Company"), and each
of the parties who have accepted and agreed to the terms hereof by signing an
execution page of this Agreement (individually, the "Investor"; and
collectively, the "Investors").
R E C I T A L S:
A. This Agreement is made pursuant to a Merger Agreement dated as
of December __, 1995 (the "Merger Agreement"), by and among the Company (then
known as ICO, Inc.), W Acquisition Corporation, a New Jersey corporation
("Acquisition"), and Wedco Technology, Inc., a New Jersey corporation
("Wedco"), pursuant to which each of the Investors received the number of
shares of Common Stock of the Company set forth opposite their names on
Schedule 1 attached hereto.
B. Such shares were registered under the Securities Act of 1933,
as amended ("Securities Act") for issuance to the Investors but the further
sale or transfer of such shares may be limited under the provisions of Rule 145
under the Securities Act or any similar rule then in effect ("Rule 145").
C. In order to induce the Investors to vote to approve the merger
between Acquisition and Wedco, the Company has agreed to provide to the
Investors the registration rights set forth in this Agreement to enable the
Investors to dispose such shares freely. The execution and delivery of this
Agreement is a condition to the Closing under the Merger Agreement.
IN WITNESS WHEREOF, in consideration of the premises and the mutual
covenants and agreements contained hereinafter, the parties hereby agree as
follows:
1. SECURITIES SUBJECT TO THIS AGREEMENT
(a) DEFINITIONS.
(i) The term "Registrable Securities" means
(x) the shares of Common Stock, no par value per share ("Common Stock") of the
Company issuable to the Investors pursuant to the Merger Agreement; and (y) any
other securities of the Company issued in exchange for, or in a distribution
with respect to, the shares of Common Stock referred to in (x) above.
(ii) The term "person" means a corporation, an
association, a limited liability company, a partnership, a trust, an
organization, a business, a government or political agency or other entity or
an individual.
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(iii) Capitalized terms not defined in this
Agreement shall have the respective meanings therefor set forth in the Merger
Agreement.
(b) REGISTRABLE SECURITIES. For the purposes of this
Agreement, securities subject to this Agreement will cease to be Registrable
Securities when: (i) they have been effectively registered under the Securities
Act and disposed of pursuant to such effective registration statement; (ii)
they are sold pursuant to Rule 144 under the Securities Act or any similar rule
then in effect ("Rule 144"); or (iii) they have been otherwise transferred and
new certificates or other evidences of ownership for them (not bearing a legend
to the effect that such securities are subject to Rule 145 and in some
circumstances may not be sold or transferred in the absence of registration or
an exemption therefrom under the Securities Act, and not subject to any stop
transfer order or other restriction on transfer) have been delivered by the
Company.
2. DEMAND REGISTRATION
(a) Subject to the conditions set forth below in this
Section 2 and also to the conditions set forth in Section 3 hereof, at any time
on and after ________________, 1996 but on or before _________________, 2001
the Company will at any time, upon the written request of any Investor, prepare
and file and use its best efforts to cause to become effective a registration
statement on Securities and Exchange Commission Forms S-1 or S-3 or any similar
form then in effect ("Registration Statement") complying with the Securities
Act covering such number of Registrable Securities as shall be specified in the
Investor's written request (a "Demand Registration"). Each Demand Registration
request shall, subject to Section 3(b) hereof, specify whether the registration
shall be on Form S-1 or Form S-3, the total aggregate number of the Registrable
Securities proposed to be sold and the proposed method of distribution;
provided, however, that subject to Section 3(b) hereof, the Company is required
to effect not more than two (2) Demand Registrations on Form S-1 during the
term of this Agreement.
(b) Within three (3) business days of receipt of a Demand
Registration request under Section 2(a) from any Investor, the Company shall
notify all other Investors at their respective addresses as shown on the books
of the Company of a proposed registration under the Securities Act and
applicable state securities laws and such Investors shall have the opportunity
for a period of ten (10) business days after receipt of such notice to notify
the Company in writing of their intention to have included in such registration
such number of Registrable Securities as shall be specified in their response.
Within three (3) business days after the expiration of such ten (10) business
day period, the Company will notify all the Investors to be included in such
registration of the other holders and the number of Registrable Securities to
be included therein.
(c) At the election of the Investor requesting the Demand
Registration, the offering or distribution of Registrable Securities so
registered shall be pursuant to a firm commitment underwriting. The managing
underwriter shall be an investment banking firm selected by the holders of a
majority in aggregate principal amount of the Registrable Securities to be
registered by the selling Investors, but subject to the Company's approval,
which approval shall not be unreasonably withheld. The Company will enter into
an underwriting agreement
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containing representations, warranties and agreements customarily included by
an issuer in underwriting agreements with respect to secondary distributions;
provided, however, that the selling Investors shall be entitled to negotiate
the underwriting discounts and commission and other fees of such underwriter.
(d) No securities to be sold by the Company or any
security holder of the Company other than the selling Investors shall be
included in any Registration Statement filed pursuant to this Section 2,
unless; (i) the selling Investors shall have consented to the inclusion of such
other securities; (ii) if the offering is pursuant to a firm commitment
underwriting, the managing or principal underwriter shall have consented to the
inclusion of such other securities; and (iii) all the Registrable Securities
requested to be included by the selling Investors shall be so included.
(e) The Company shall be entitled to postpone the filing
of any Registration Statement otherwise required to be prepared and filed by it
pursuant to this Section 2 if, at the time it receives a request for Demand
Registration, counsel for the Company is reasonably of the opinion that any
material pending transaction of the Company or any of its subsidiaries render
the effecting of such Registration Statement inappropriate at the time;
provided, that the duration of such delay shall not exceed ninety (90) days
from the date the Company became aware of such material business information;
and provided further, that the Company shall promptly make such filing of the
Registration Statement as soon as the conditions which permit it to delay such
filing no longer exist.
(f) The Company shall be entitled to postpone a filing of
any registration statement otherwise required to be prepared and filed pursuant
to this Section 2 if at the time it received a request for Demand Registration
either: (i) the Company shall then have begun the preparation of, have filed or
have in effect a registration statement with respect to shares of Common Stock;
or (ii) the Company's investment advisor advises it in writing that the
offering would have an adverse effect upon the Company or upon the trading
market for its Common Stock; provided, that the Company shall promptly make
such filing not later than (x) ninety (90) days after the Company's
registration statement has been declared effective; or (y) as soon as its
investment advisor advises that the offering would no longer have an adverse
effect upon the Company or the trading market for its securities; provided,
however, that the duration of such a delay described in (x) and (y) above shall
not in any event exceed ninety (90) days from the date of the request for
Demand Registration.
(g) If the holders of a majority in aggregate principal
amount of the Registrable Securities to be registered by the Investors in a
Demand Registration, or, in the case of an underwritten offering, the managing
underwriter of such offering, advise the Company in writing that in its or
their opinion the number of Registrable Securities requested to be included in
such offering is reasonably likely to materially and adversely affect the
success or offering price of such offering, the Company will include in such
registration only an amount of Registrable Securities equal to the total amount
which in the opinion of such holders or such managing underwriter, as the case
may be, can be sold without any such material adverse effect, pro rata among
the holders of Registrable Securities on the basis of the amount of Registrable
Securities requested to be included in such registration by the respective
selling Investors.
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3. CONDITIONS TO REGISTRATION. The Company shall not be
obligated to register Registrable Securities under this Agreement if any one or
more of the following conditions exist:
(a) With respect to Demand Registration only, the Company
shall have already effected a Demand Registration for the Investors during the
calendar year in which the written request for Demand Registration is received
(unless the Demand Registration has been postponed pursuant to Sections 2(e)
and 2(f), in which case the Demand Registrations shall be at least six (6)
months apart).
(b) With respect to Demand Registration only, the Company
is not eligible to use Form S-3 in such Demand Registration; provided, however,
that in the event the Company is not eligible to use Form S-3 at any time
during the term of this Agreement, the Investors shall have the right to
demand, and the Company shall have the obligation to effect, up to three (3)
Demand Registrations on Form S-1 during the term of this Agreement,
notwithstanding anything contained in Section 2(a) hereof to the contrary.
(c) As to any Investor desiring to request (as opposed to
participate in) a Demand Registration on Form S-3, if that Investor's holdings
of Registrable Securities requested to be registered are less than at least
twice the number of Registrable Securities that he, she or it could sell in any
three (3) month period pursuant to Rule 144.
(d) As to any Investor desiring to request (as opposed to
participate in) a Demand Registration on Form S-1, if that Investor's holdings
of Registrable Securities requested to be registered are less than 25% of his,
her or its Registrable Securities (as measured on the date of this Agreement on
Schedule 1).
(e) Counsel for the Company expresses its written opinion
to the Company and such Investors that the Registrable Securities requested to
be registered by the Investors are freely transferrable without the necessity
of registration under the Securities Act or state securities laws.
4. PIGGYBACK REGISTRATION
(a) RIGHT TO PIGGYBACK. If at any time the Company
proposes to file a registration statement under the Securities Act (except with
respect to registration statements on Forms S-4 or S-8, or any other form not
available for registering the Registrable Securities for sale to the public
generally), with respect to an offering for its own account or for the account
of another person (other than the holders of Registrable Securities in their
capacity as such) of shares of Common Stock (a "Proposed Registration"), then
the Company shall in each case give written notice of such proposed filing to
the Investors at least forty five (45) days before the anticipated filing date,
and shall, subject to Section 4(b), include in such registration statement such
amount of Registrable Securities as each such Investor may request within
twenty (20) days of the receipt of such notice. The Company shall register
such Registrable Securities on the same terms and subject to the same
conditions applicable to the registration in the Proposed Registration of
securities to be sold by the Company or the persons selling under such Proposed
Registration.
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(b) PRIORITY ON PIGGYBACK REGISTRATIONS. If the managing
underwriter or underwriters of such offering delivers a written opinion to the
Investors that the total dollar amount which they and any other persons intend
to include in such offering is reasonably likely to materially and adversely
affect the success or offering price of such offering, then the amount of
securities to be offered for the accounts of holders of Registrable Securities
shall be reduced and the securities to be included in such Proposed
Registration shall be prioritized as follows: first, the securities which the
Company or any other person having priority registration rights (vis-a-vis the
Investors) proposes to sell; second, the Registrable Securities of the
Investors who have made requests to be included in such registration, pro rata
in accordance with the aggregate principal amount of such Investors'
Registrable Securities requested be included; and third other securities
requested to be included in such registration, pro rata in accordance with the
aggregate principal amount of such securities among the holders of securities
requested to be included in such registration.
5. COVENANTS OF THE INVESTORS.
Any request for registration made by the Investors pursuant to
this Agreement shall express the Investors' present intention to offer such
Registrable Securities for distribution and contain an undertaking to provide
all such information and materials and take all such actions and execute all
such documents as may be required in order to permit the Company to comply with
all applicable requirements of the Securities and Exchange Commission
("Commission") and to obtain acceleration of the effective date of the
Registration Statement.
6. COVENANTS OF THE COMPANY.
So long as the Company is under an obligation pursuant to the
provisions of this Agreement, the Company shall, upon a request to register any
Registrable Securities under this Agreement, use its best efforts to effect the
registration and to further the sale of such Registrable Securities in
accordance with the intended method of disposition as quickly as practicable,
and in connection with any such request the Company shall, as expeditiously as
possible:
(a) in connection with a request pursuant to Section 2
hereof, prepare and file with the Commission, within sixty (60) days after
receipt of a Demand Registration request, a Registration Statement on either
Form S-1 or Form S-3, as requested, and in connection with any Registration
Statement filed for Registrable Securities hereunder, use its best efforts to
cause such Registration Statement to become effective; provided, however, that
before filing a Registration Statement or prospectus or any amendments or
supplements thereto the Company shall (i) furnish to the selling Investors and
the underwriters, if any, copies of all such documents proposed to be filed at
least two (2) business days prior thereto, which documents will be subject to
the review and reasonable approval of such selling Investors and their
professional advisors and the Company shall not file any Registration Statement
or amendment thereto or any prospectus or any supplement thereto to which
holders of a majority of the Registrable Securities covered by such
Registration Statement or the underwriters, if any, shall reasonably object;
and (ii) promptly notify each selling Investor of any stop order issued or
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threatened by the Commission and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered;
(b) prepare and file with the Commission such amendments
and supplements to such Registration Statements and the prospectus used in
connection therewith as may be necessary to keep such Registration Statement
effective for such period as shall be necessary to complete the marketing of
the Registrable Securities included therein, but in no event more than one
hundred twenty (120) days after the date the shares may first be sold;
(c) furnish to the selling Investors and the managing
underwriter or underwriters, if any, without charge such number of copies of a
prospectus, including, without limitation, a preliminary prospectus, in
conformity with the requirements of the Securities Act, and any amendment or
supplement thereto and such other documents as the selling Investors or the
managing underwriter may reasonably request in order to facilitate the public
sale or other disposition of such Registrable Securities;
(d) make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of the Registration Statement at the
earliest possible moment;
(e) cooperate with the selling Investors and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates (not bearing any restrictive legends) representing
securities to be sold under the registration statement, and enable such
securities to be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or such selling Investors may
request;
(f) Use its best efforts to register or qualify, not
later than the effective date of any Registration Statement filed pursuant to
this Agreement, the Registrable Securities covered by such Registration
Statement under the securities or Blue Sky laws of such jurisdictions within
the United States as the selling Investors or managing underwriter or
underwriters may reasonably request and do any and all other acts or things
which may be necessary or advisable to enable the selling Investors to
consummate the public sale or other disposition in such jurisdiction of such
Registrable Securities;
(g) Promptly notify the selling Investors, at any time
when a prospectus relating to the Registrable Securities being distributed is
required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in such Registration
Statement, as than in effect, includes an untrue statement of 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, at the request of the selling Investors, promptly prepare,
file with the Commission and furnish to the selling Investors a reasonable
number of copies of a supplement to, or an amendment of, such prospectus as may
be necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus shall not include an untrue statement
of a material fact or omit 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;
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(h) make available for inspection, during normal business
hours, by any selling Investor, the managing underwriter or underwriters, if
any, and any attorney, accountant, or other agent retained by any such selling
Investor or managing underwriter or underwriters (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents,
and properties of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to exercise their
due diligence responsibility, and cause the Company's officers, directors, and
employees to supply all information reasonably requested by any such Inspector
in connection with such registration statement;
(i) use its best efforts to furnish, at the request of
the selling Investors or any managing underwriter or underwriters of any
distribution of the Registrable Securities, (i) an opinion of legal counsel to
the Company, covering such matters as are typically covered by opinions of
issuer's counsel in underwritten offerings under the Securities Act; and (ii) a
letter dated such date from the independent public accountants retained by the
Company, addressed to the underwriters, if any, and to such selling Investors,
stating that they are independent public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants, the financial
statements of the Company included in the Registration Statement or the
prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five (5) business
days prior to the date of such letter) with respect to the registration in
respect of which such letter is being given as such underwriters or selling
Investors may reasonably request;
(j) Use its best efforts to cause all of the Registrable
Securities as to which the selling Investors shall have requested registration
to be listed on any recognized securities exchange, including, without
limitation, the National Association of Securities Dealers Automated Quotation
System, on which the Common Stock is then listed and to maintain the currency
and effectiveness of any such listings; and
(k) Enter into an agreement with the underwriters for
such offering in which the Company shall provide indemnities similar to those
described in Section 8 hereof to the underwriters and in which the Company
shall make the usual representations and warranties made by issuers of equity
securities to underwriters in secondary distributions.
7. COSTS AND EXPENSES.
The Company will pay all expenses of any registrations made
pursuant to this Agreement (other than underwriting discounts and commissions
which shall be the responsibility of the selling Investors), including but not
limited to all registration and filing fees, transfer taxes, fees and expenses
of compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), rating agency fees, printing expenses, messenger and
delivery expenses, costs of insurance, fees of transfer agents and registrars,
internal expenses of the Company, the fees and expenses incurred in connection
with the listing of the securities to be registered in accordance with Section
6(j), fees of the National Association of Securities Dealers, Inc., securities
acts
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liability insurance (if the Company elects to obtain such insurance), the fees
and disbursements of counsel for the Company and all independent certified
public accountants (including the expenses of any annual audit, special audit,
or "cold comfort" and "bringdown" letters required by or incident to such
performance), the fees and expenses of any special experts retained by the
Company in connection with such registration and fees and expenses of other
persons retained by the Company, the reasonable and customary fees and expenses
of any underwriter (but not including any underwriting discounts or commissions
attributable to the sale of Registrable Securities by the selling Investors),
the reasonable fees and disbursements of counsel retained by the underwriter,
the reasonable fees and disbursements of counsel retained by the selling
Investors, and any reasonable out-of-pocket expenses of the selling Investors
(or the agents who manage their accounts) excluding any travel costs and
counsel fees except as set forth above (all such expenses being herein called
"Registration Expenses").
8. INDEMNIFICATION
(a) INDEMNIFICATION BY COMPANY. The Company agrees to
indemnify and to save and hold harmless, to the full extent permitted by law,
each holder of Registrable Securities, its officers, directors and partners and
partners of partners, and each person who controls such holder (within the
meaning of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act") from and against any and all losses, claims,
damages, liabilities, and expenses (including reasonable costs of
investigation) arising out of or based on any untrue or alleged untrue
statement of material fact contained in any registration statement or
prospectus relating to the Registrable Securities or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same arise out of reliance upon any untrue
statement or omission furnished in writing to the Company by such holder
expressly for use therein; provided that the Company shall not be required to
indemnify any holder of Registrable Securities for damages caused by such
holder's continuing to use a prospectus with respect to which such holder has
received a notice pursuant to Section 6(a) hereof and has not received a notice
of the amendment or supplementation of such prospectus, as contemplated in
Section 6(a).
(b) INDEMNIFICATION BY HOLDER OF REGISTRABLE SECURITIES.
In connection with any registration statement in which a holder of Registrable
Securities is participating, each such holder will furnish to the Company in
writing such information and affidavits with respect to such holder as the
Company reasonably requests for use in connection with any such registration
statement or prospectus and agrees to indemnify, to the extent permitted by
law, each of the Company and, if it is an underwritten offering, the
underwriters, the Company's directors and officers, and each person who
controls the Company (within the meaning of the Securities Act) against any
losses, claims, damages, liabilities, and expenses arising out of or based on
any untrue statement of a material fact or any omission of a material fact
required to be stated in the registration statement or prospectus or any
amendment thereof or supplement thereto or necessary to make the statements
therein not misleading, to the extent, but only to the extent, that such untrue
statement, or omission is made in reliance upon and in conformity with
information with respect to such holder furnished in writing to the Company by
such holder
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specifically for use in such registration statement or prospectus or amendment
or supplement thereto; provided, however, that the liability of any such holder
under this Section a shall be limited to the proportion of any such losses,
claims, damages, liabilities and expenses which is equal to the proportion that
the public offering price of securities sold by such holder under such
registration statement bears to the total public offering price of all
securities sold thereunder, and shall in no event exceed the net proceeds of
the sale of Registrable Securities being sold pursuant to said registration
statement or prospectus by such holder; and provided further that no such
holder shall be required to indemnify the Company for damages caused by any
person, including the Company, continuing to use a prospectus (prior to its
amendment or supplementation) more than three business days after the Company
has received a notice by such holder of any such untrue statement or omission
contained in such prospectus.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. If any
action or proceeding (including any governmental investigation) is brought or
asserted against any selling holder of Registrable Securities (or its officers,
directors or agents) or any person controlling any such holder, in respect of
which indemnity now be sought from the Company, the Company shall assume the
defense thereof, including the employment of counsel reasonably satisfac- tory
to such holder, and shall pay all expenses in connection therewith. Such
holder or any controlling person of such holder shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall be at the expense of such
holder or such controlling person, unless (i) the Company has agreed to pay
such fees and expenses or (ii) the named parties to any such action or
proceeding (including any impleaded parties) include both such holder or such
controlling person and the Company, and such holder or such controlling person
shall have been advised by counsel that there be one or more legal defenses
available to such holder or such controlling person which are different from or
additional to those available to the Company (in which case, if such holder or
such controlling person notifies the Company in writing that it elects to
employ separate counsel at the expense of the Company, the Company shall not
have the right to assume the defense of such action or proceeding on behalf of
such holder or such controlling person, being understood, however, that the
Company shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the fees and expenses or more than one separate firm of attorneys
(together with appropriate local counsel) at any time for the holders and such
controlling persons, which firm shall be designated in Writing by a majority of
such holders). The Company shall not be liable for any settlement of any such
action or proceeding effected without the Company's written consent (but such
consent shall not be unreasonably withheld), but if any action or proceeding is
settled with the Company's consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Company agrees to indemnify and
hold harmless such holder and such controlling person from and against any loss
or liability (to the extent stated above) by reason of such settlement or
judgment. The Company will not 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 indemnified party of a release from
all liability in respect of such action, claim or litigation.
(d) CONTRIBUTION. If the indemnification provided for in
this Section a is unavailable to the Company, the selling holder of Registrable
Securities or the underwriters in
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an underwriting offering and such underwriters' officers, directors and
controlling persons (the "Securities Professionals") in respect of any losses,
claims, damages, liabilities, expenses or judgments referred to herein, then
each such indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities, expenses and judgments (i)
as between the Company and such holders on the one hand and the Securities
Professionals on the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and such holders on the one hand and
the Securities Professionals on the other from the offering of the Registrable
Securities, or if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company and such holders on the one hand and of
the Securities Professionals on the other in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities, expenses
or judgment as well as any other relevant equitable considerations; and (ii) as
between the Company on the one hand and each such holder on the other, in such
proportion as is appropriate to reflect the relative fault of the Company and
of each such holder in connection with such statements or omissions, as well as
any other relevant equitable considerations. The relative benefits received by
the Company and such holders on the one hand and the Securities Professionals
on the other shall be deemed to be in the same proportion as the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and such holders bear to the total
underwriting discounts and commissions received by the Securities
Professionals, in each case as set forth in the table on the cover page of the
prospectus. The relative fault of the Company on the one hand and of each such
holder on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and such holders agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if such holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities, expenses or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no
Securities Professional shall be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Securities of such
holder were offered to the public exceeds the amount of any damages which such
holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
9. MISCELLANEOUS
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(a) RULE 144. The Company covenants that it will duly
file in a timely manner any and all reports required to be filed by it under
the Securities Act and the Exchange Act from time to time and that it will take
such further action as any holder of Registrable Securities may reasonably
request, all to the extent required from time to time to enable such holders to
sell Registrable Securities without registration under the Securities Act
pursuant to Rule 144. Upon the request of any holder of Registrable
Securities, the Company will deliver to such holder a written statement as to
whether it has complied with such retirements.
(b) FORM S-3. The Company covenants that it will take
all such actions, including but not limited to the timely filing of all reports
required to be filed by it under the Securities Act or Exchange Act, to ensure
the Company's eligibility to use Commission Form S-3 for the registration of
securities under the Securities Act.
(c) OTHER REGISTRATION RIGHTS. The Company shall not
grant any person (including the holders of Registrable Securities) any
registration rights with respect to Common Stock of the Company other than
piggyback registration rights ("new rights") that would be inconsistent with
the terms of this Agreement and which would not provide that the holders of
Registrable Securities have a "piggyback" right upon the exercise of such new
rights and shall be included in such registration statement before the
inclusion of any securities pursuant to the exercise of the new rights.
(d) REPRESENTATION AND WARRANTIES OF THE COMPANY. The
Company represents and warrants to each Investor as follows: (i) the execution,
delivery and performance of this Agreement by the Company have been duly
authorized by all requisite corporate action and will not violate any provision
of law, any order of any court or other agency of government, the Charter or
by-laws of the Company, or any provision of any indenture, agreement or other
instrument to which it or any of its properties or assets is bound, or conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any such indenture, agreement or other instrument, or
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the properties or assets of the Company, and (ii)
the Company is currently eligible to use Form S-3 for the registration of
securities under the Securities Act. This Agreement has been duly executed and
delivered by the Company and constitutes the legal, valid and binding
obligation of the Company, enforceable in accordance with its terms.
(e) REMEDIES. Each holder of Registrable Securities, in
addition to being entitled to specific performance of its rights under thin
Agreement, shall be entitled to all other remedies available at law or in
equity. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(f) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, restated,
modified, or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the
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Company has obtained the written consent of the holders of a majority of the
Registrable Securities then entitled to the benefits of this Agreement.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns of each of the
parties; provided, however, that only in the event that an Investor transfers
any Registrable Securities by gift, bequest, transfer by intestacy or operation
of law to any person other than the Company shall such successor holder succeed
to all of the rights and obligations of such Investor hereunder.
(h) NOTICES. Any notice, request, instruction, or other
document to be given hereunder by any party to another shall be in writing,
shall be delivered personally or by overnight courier service or sent by
certified mail, postage prepaid and return receipt requested, or by facsimile
transmission (receipt confirmed) to the Company at 000 Xxxxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxx, Xxxxx 00000 (fax no. 713/000-0000) and to each Investor at the
address set forth opposite his name on Schedule 1.1 (or to such other address
as any subsequent holder of Registrable Securities or any other party to whom
notice is to be given may provide in a written notice to the other parties)
with a copy to _____________ at _________________ and (except when delivered
personally or by facsimile) shall be deemed received three days after such
notice is sent.
(i) 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.
(j) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(k) SEVERABILITY. In the event that any one or more of
the provisions contained herein, or any application of any provision contained
herein, shall be 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.
(l) ENTIRE AGREEMENT; SUPERSESSION OF PRIOR AGREEMENTS.
This Agreement, together with the Merger Agreement and the other agreements
contemplated thereby, are intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein. There are no restrictions, promises,
warranties, or undertakings, other than those set forth or referred to herein
and therein. This Agreement, together with the Merger Agreement and the other
agreements contemplated therein, supersede all prior agreements and
understandings among the parties with respect to such subject matter.
(m) ATTORNEYS' FEES. In any action or proceeding brought
to enforce any provision of this Agreement or where any provision hereof is
validly asserted as a defense, the
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successful party shall be entitled to recover reasonable attorneys' fees and
expenses in addition to any other available remedy.
(n) GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas, applicable to
contracts made and to be performed wholly within that State without regard to
principles of conflicts of law.
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IN WITNESS WHEREOF, the parties have executed this Stock Registration
Rights Agreement as of the date first written above.
THE COMPANY
Attest:
______________________ By: _______________________________________________
Name:
Title:
Witness: INVESTORS
______________________ By: _______________________________________________
Name:
Witness:
______________________ By: _______________________________________________
Name:
Witness:
______________________ By: _______________________________________________
Name:
Witness:
______________________ By: _______________________________________________
Name:
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Witness:
______________________ By: _______________________________________________
Name:
Witness:
______________________ By: _______________________________________________
Name:
Witness:
______________________ By: _______________________________________________
Name:
Witness:
______________________ By: _______________________________________________
Name:
Witness:
______________________ By: _______________________________________________
Name:
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