XXXXXXXXX SIGN COMPANY
AMENDED AND RESTATED
REGISTRATION AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION AGREEMENT (this
"Agreement") is made as of April 13, 2001, between Xxxxxxxxx Sign Company, a
Texas corporation (the "Company"), Continental Illinois Venture Corporation, a
Delaware corporation ("CIVC"), MIG Partners VIII, a Delaware partnership
("MIG"), and each of the other persons identified on the signature pages hereto
(collectively, the "Other Stockholders" and each, an "Other Stockholder"). CIVC
and MIG are referred to herein collectively as the "Investors" and each is
referred to herein individually as an "Investor." The Investors and the Other
Stockholders are referred to herein collectively as the "Stockholders" and
individually as a "Stockholder". This Agreement amends and restates in its
entirety the original Registration Agreement, dated as of September 30, 1998,
between the Company, the Investors and the Other Stockholders (the "Original
Registration Agreement").
The Company, the Investors and certain of the Other
Stockholders are parties to a Senior Subordinated Note, Preferred Stock and
Warrant Purchase Agreement, dated as of September 30, 1998, as amended (the
"Securities Purchase Agreement"). The Company and the Investors are parties to
that certain Common Stock Purchase Agreement, dated as of the date hereof (the
"Common Stock Purchase Agreement"). In order to induce the Investors to enter
into the Securities Purchase Agreement and the Common Stock Purchase Agreement,
the Company agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement was a condition to the
Closing under the Securities Purchase Agreement and a condition to Closing under
the Common Stock Purchase Agreement . Unless otherwise provided in this
Agreement, capitalized terms used herein shall have the meanings set forth in
Section 9 hereof.
The parties hereto agree as follows:
1. Demand Registrations.
(a) Requests for Registration. At any time after the date
hereof the holders of a majority of the Investor Registrable Securities (the
"Majority Investor Holders") may request registration under the Securities Act
of 1933, as amended (the "Securities Act") of all or any portion of their
Registrable Securities on Form S-1 or any similar long-form registration
("Long-Form Registrations") or on Form S-2 or S-3 or any similar short-form
registration ("Short-Form Registrations") if available. All registrations
requested pursuant to this paragraph l(a) are referred to herein as "Demand
Registrations." Each request for a Demand Registration shall specify the
approximate number of Registrable Securities requested to be registered, the
anticipated per share price range for such offering and the intended method of
disposition. Within ten (10) days after
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receipt of any such request, the Company shall give written notice of such
requested registration to all other holders of Registrable Securities and shall
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
(b) Long-Form Registrations. The Majority Investor Holders
shall be entitled to request two (2) Long-Form Registrations in which the
Company shall pay all Registration Expenses (as defined in Section 6(a)). A
registration shall not count as one of the permitted Long-Form Registrations
until it has become effective, and neither the last nor any subsequent Long-Form
Registration shall count as one of the permitted Long-Form Registrations unless
the holders of Registrable Securities are able to register and sell all of the
Registrable Securities requested to be included in such registration; provided
that in any event the Company shall pay all Registration Expenses in connection
with any registration initiated as a Long-Form Registration whether or not it
has become effective and whether or not such registration has counted as one of
the Long-Form Registrations.
(c) Short-Form Registrations. In addition to the Long-Form
Registrations provided pursuant to Section l(b), the Majority Investor Holders
shall be entitled to request five (5) Short-Form Registrations in which the
Company shall pay all Registration Expenses; provided that in each such
Short-Form Registration the holders of Registrable Securities shall request to
include in such registration at least 25% of the Registrable Securities held by
them in the aggregate as of the date hereof (or such lesser amount if less than
25% are unregistered as of such demand). Demand Registrations shall be
Short-Form Registrations whenever the Company is permitted to use any applicable
short form.
(d) Restrictions on Demand Registrations. The Company shall
not be obligated to effect any Demand Registration within 180 days after the
effective date of a previous Demand Registration or a previous registration in
which the holders of Registrable Securities were given piggyback rights pursuant
to Section 2 and in which there was no reduction in the number of Registrable
Securities requested to be included. The Company may postpone for up to 180 days
(from the date of the request) the filing or the effectiveness of a registration
statement for a Demand Registration if the Company's board of directors
determines in its reasonable good faith judgment that such Demand Registration
would reasonably be expected to have a material adverse effect on any proposal
or plan by the Company or any of its Subsidiaries to engage in any acquisition
of assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer, reorganization or similar transaction; provided
that in such event, the holders of Registrable Securities initially requesting
such Demand Registration shall be entitled to withdraw such request and, if such
request is withdrawn, such Demand Registration shall not count as one of the
permitted Demand Registrations hereunder and the Company shall pay all
Registration Expenses in connection with such registration. The Company may
delay a Demand Registration hereunder only once in any twelve-month period.
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(e) Priority on Demand Registrations. The Company will not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of a majority of the
Investor Registrable Securities. If a Demand Registration is an underwritten
offering and the managing underwriters advise the Company in writing that in
their opinion the number of Registrable Securities and, if permitted hereunder,
other securities requested to be included in such offering exceeds the number of
Registrable Securities and other securities, if any, which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
of a majority of the Registrable Securities initially requesting registration,
the Company will include in such registration, if any, (i) first, the
Registrable Securities requested to be included in such registration by the
holders thereof, which securities can in the opinion of such underwriters be
sold in an orderly manner within the price range of such offering, pro rata
among such holders on the basis of the number of shares of Registrable
Securities owned by each such holder, and (ii) second, the other securities
requested to be included which in the opinion of such underwriters can be sold
in an orderly manner within the price range of such offering.
(f) Selection of Underwriters. In any Demand Registration, the
Company shall have the right to select the investment banker(s) and manager(s)
to administer the offering, provided that the investment banker(s) and
manager(s) so selected are reasonably satisfactory to the Majority Investor
Holders.
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to
register any of its securities under the Securities Act (other than pursuant to
(i) a Demand Registration or (ii) pursuant to a registration on Form S-4 or S-8
or any successor or similar forms) and the registration form to be used may be
used for the registration of Registrable Securities (a "Piggyback
Registration"), the Company shall give prompt written notice (in any event
within ten (10) days after its receipt of notice of any exercise of demand
registration rights other than under this Agreement) to all holders of
Registrable Securities of its intention to effect such a registration and shall
include in such registration all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice.
(b) Piggyback Expenses. The Registration Expenses of the
holders of Registrable Securities shall be paid by the Company in all Piggyback
Registrations.
(c) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of the Company,
and the managing underwriters advise the Company in writing that in their
opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in such offering without adversely
affecting the marketability of the offering, the Company shall include in such
registration (i) first, the securities the Company proposes to sell, and (ii)
second, the Registrable Securities requested to be included in such registration
pro rata among the holders thereof on the basis of the number of shares of
Registrable Securities owned by each such holder, and (iii) third, other
securities requested to be
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included in such registration pro rata among the holders of such securities and
any other securities held by others requested to be included in such
registration, pro rata among the holders thereof on the basis of the number of
shares requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities (other than the parties hereto) who have been granted
contractual demand registration rights, and the managing underwriters advise the
company in writing that in their opinion the number of securities requested to
be included in such registration exceeds the number which can be sold in such
offering without adversely affecting the marketability of the offering, the
Company will include in such registration (i) first, the securities requested to
be included therein by the holders requesting such registration, (ii) second,
the Registrable Securities requested to be included in such registration, pro
rata among the holders thereof on the basis of the number of shares of
Registrable Securities owned by each such holder, and (iii) third, other
securities requested to be included in such registration pro rata among the
holders of such securities.
(e) Selection of Underwriters. In any Piggyback
Registration, the Company shall have the right to select the investment
banker(s) and manager(s) to administer the offering.
3. Holdback Agreements.
(a) The Company shall not effect any public sale or other
distribution (including sales pursuant to Rule 144) of its equity securities, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven (7) days prior to and during the 180-day period
beginning on the effective date of any underwritten Demand Registration or any
underwritten Piggyback Registration (except as part of such underwritten
registration or pursuant to registrations on Form S-8 or any successor form),
unless the underwriters managing the registered public offering otherwise agree.
(b) Each holder of Registrable Securities shall not effect any
public sale or other distribution (including sales pursuant to Rule 144) of
equity securities of the Company, or any securities convertible into or
exchangeable or exercisable for such securities during the seven days prior to
and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration in
which Registrable Securities are eligible for inclusion (except as part of such
underwritten registration or pursuant to registrations on Form S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree.
4. Registration Procedures. Whenever the holders of
Registrable Securities have requested that any Registrable Securities be
registered pursuant to this Agreement, the Company shall use its best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof (including the
registration of the Warrants held by a holder of Registrable Securities
requesting registration as to which the Company
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has received reasonable assurances that only Common Stock shall be distributed
to the public), and pursuant thereto the Company shall as expeditiously as
possible:
(a) prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable Securities
and use its best efforts to cause such registration statement to become
effective (provided that before filing a registration statement or prospectus or
any amendments or supplements thereto, the Company shall furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered by
such registration statement copies of all such documents proposed to be filed,
which documents shall be subject to the review and comment of such counsel);
(b) notify each holder of Registrable Securities of the
effectiveness of each registration statement filed hereunder and prepare and
file with the Securities and Exchange Commission such amendments and supplements
to such registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a period
of not less than 180 days and comply with the provisions of the Securities Act
with respect to the disposition of all securities covered by such registration
statement during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such
number of requested copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents as such seller
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such seller;
(d) use its reasonable best efforts to register or qualify
such Registrable Securities under such other securities or blue sky laws of such
jurisdictions as any seller reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable such seller
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by such seller (provided that the Company shall not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each seller of such Registrable Securities, 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 included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading, and, at the request of any such seller, the Company shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading; provided that upon
such
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notification by the Company, each seller of such Registrable Securities will not
offer or sell such Registrable Securities until the Company has notified such
seller that it has prepared a supplement or amendment to such prospectus and
delivered copies of such supplement or amendment to such seller;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its best
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a NASDAQ "national market system security" within the
meaning of Rule 11Aa2-1 of the Securities and Exchange Commission or, failing
that, to secure NASDAQ authorization for such Registrable Securities and,
without limiting the generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such Registrable Securities
with the NASD;
(g) provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) enter into such customary agreements (including
underwriting agreements in customary form) and take all such other actions as
the holders of a majority of the Registrable Securities being sold or the
underwriters, if any, reasonably request in order to expedite or facilitate the
disposition of such Registrable Securities (including effecting a stock split or
a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter (in each case after reasonable prior notice), all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees and independent
accountants to supply, on a confidential basis, all information reasonably
requested by any such seller, underwriter, attorney, accountant or agent in
connection with such registration statement;
(j) otherwise use its best efforts to comply with all
applicable rules and regulations of the Securities and Exchange Commission, and
make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with
the first day of the Company's first full calendar quarter after the effective
date of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any holder of Registrable Securities which holder,
in its sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the
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insertion therein of material, furnished to the Company in writing, which in the
reasonable judgment of such holder and its counsel should be included;
(l) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its best efforts promptly to obtain the
withdrawal of such order; and
(m) obtain a comfort letter from the Company's independent
public accountants in customary form and covering such matters of the type
customarily covered by comfort letters as the holders of a majority of the
Registrable Securities being sold reasonably request (provided that such
Registrable Securities constitute at least 10% of the securities covered by such
registration statement).
Each seller of Registrable Securities, upon receipt of any notice from the
Company of the happening of any event of the kind described in subsection (e) of
this Section 4, will forthwith discontinue disposition of the Registrable
Securities until receipt by the seller of Registrable Securities of the copies
of the supplemented or amended prospectus contemplated by subsection (e) of this
Section 4 or until it is advised in writing (the "Advice") by the Company that
the use of the prospectus may be resumed and has received copies of any
additional or supplemental filings which are incorporated by reference in the
prospectus, and if so directed by the Company, such seller of Registrable
Securities will, or will request the managing underwriter or underwriters, if
any, to deliver to the Company (at the Company's expense) all copies (other than
permanent file copies) then in the possession of such seller of Registrable
Securities and of any underwriter or underwriters, of he prospectus covering
such Registrable Securities current at the time of receipt of such notice. In
the event the Company shall give any such notice, the time periods mentioned in
subsection (b) of this Section 4 shall be extended by the number of days during
the period from and including the date of the giving of such notice to and
including the date when each seller of Registrable Securities covered by such
registration statement shall have received the copies of the supplemented or
amended prospectus contemplated by subsection (e) of this Section 4 hereof or
the Advice.
5. Cooperation by Holders of Registrable Securities.
(a) Each seller of Registrable Securities will furnish to the
Company in writing such information as the Company may reasonably require from
time to time from such seller, and otherwise reasonably cooperate with the
Company in connection with any registration with respect to such holder's
Registrable Securities.
(b) The failure of any prospective seller of Registrable
Securities to furnish any information or documents in accordance with any
provision contained in this Agreement shall not affect the obligations of the
Company hereunder to any remaining sellers who furnish such information and
documents unless, in the reasonable opinion of counsel to the Company or the
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underwriters, such failure impairs or may impair the viability of the or the
legality of any registration statement in connection therewith.
(c) At the end of any period during which the Company is
obligated to keep any registration statement current and effective as provided
in Section 4, the holders of Registrable Securities included in such
registration statement shall discontinue sales of shares pursuant to such
registration statement upon receipt of notice from the Company of its intention
to remove from registration the shares covered by such registration statement
which remain unsold and such holders shall notify the Company of the number of
shares registered which remain unsold promptly after receipt of such notice from
the Company.
6. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts,
commissions, and undocumented expense allowances) and other Persons (as defined
in the Securities Purchase Agreement) retained by the Company (all such expenses
being herein called "Registration Expenses"), shall be borne as provided in this
Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance and
the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by the Company are then
listed or on the NASD automated quotation system.
(b) In connection with each Demand Registration and each
Piggyback Registration, the Company shall reimburse the holders of Investor
Registrable Securities included in such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the Investor
Registrable Securities initially requesting such registration. The Company shall
not be required to pay or obtain reimbursement for excessive discounted fees and
commissions attributable to a sale of the Company and fees and/or expenses of
other experts retained by the holders of Registrable Securities.
(c) To the extent Registration Expenses are not required to be
paid by the Company, each holder of securities included in any registration
hereunder shall pay those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration Expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
(d) The Company will not bear the cost of or pay for any
stock transfer tax imposed in respect of the transfer of any Registrable
Securities to any purchaser thereof by any
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holder of Registrable Securities in connection with any registration of
Registrable Securities pursuant to this Agreement.
7. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted
by law, each holder of Registrable Securities (requesting or joining in a
registration hereunder), its officers and directors and each Person who controls
(within the meaning of the Securities Act) such holder 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, except insofar as the
same are caused by or contained in any information furnished in writing to the
Company by such holder 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 the Company has furnished such holder with a
sufficient number of copies of the same. In connection with an underwritten
offering the Company shall indemnify such underwriters, their officers and
directors and each Person 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 shall
furnish to the Company in writing such information and affidavits as the Company
reasonably requests for use in connection with any such registration statement
or prospectus and, to the extent permitted by law, shall indemnify the Company,
its directors and officers and each Person who controls (within the meaning of
the Securities Act) the Company 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, 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; provided that the obligation to indemnify
shall be limited to the net amount of proceeds received by such holder from the
sale of Registrable Securities pursuant to such registration statement. In
connection with an underwritten offering in which a holder of Registrable
Securities is participating, each such holder shall indemnify such underwriters,
their officers and directors and each Person 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 Company.
(c) Any Person entitled to indemnification hereunder shall (i)
give prompt written notice to the indemnifying party of any claim with respect
to which it seeks indemnification (provided that the failure to give prompt
notice shall not impair any Person's right to indemnification hereunder to the
extent such failure has not prejudiced the indemnifying party) and (ii) unless
in such
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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. If such defense is assumed,
the indemnifying party shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim shall 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.
(d) The indemnification provided for under this Agreement
shall 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 of such indemnified party and shall survive the transfer of securities.
The parties hereto also agree to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event
such party's indemnification is unavailable for any reason.
8. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder which is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided that no
holder of Registrable Securities included in any underwritten registration shall
be required to make any representations or warranties to the Company or the
underwriters (other than representations and warranties regarding such holder
and such holder's intended method of distribution) or to undertake any
indemnification obligations to the Company or the underwriters with respect
thereto, except as otherwise provided in Section 7 hereof.
9. Definitions.
(a) "Investor Registrable Securities" means (i) any Common
Stock issued to CIVC or MIG (whether pursuant to the Common Stock Purchase
Agreement or otherwise), (ii) any Common Stock issued or issuable upon the
exercise or otherwise in respect of the Warrants, (iii) any Common Stock issued
or issuable with respect to the securities referred to in clauses (i) and (ii)
above by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization, and (iv) any other shares of Common Stock held by the Investors
holding securities described in clauses (i), (ii) and (iii), inclusive, above.
As to any particular Investor Registrable Securities, such securities shall
cease to be Investor Registrable Securities when they have been distributed to
the public pursuant to a offering registered under the Securities Act or sold to
the public through a broker, dealer or market maker in compliance with Rule 144
under the Securities Act (or any similar rule then in force) or repurchased by
the Company or any Subsidiary. For purposes of this Agreement, a Person shall be
deemed to be a
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holder of Investor Registrable Securities, and the Registrable Securities shall
be deemed to be in existence, whenever such Person has the right to acquire
directly or indirectly such Registrable Securities (upon conversion or exercise
in connection with a transfer of securities or otherwise, but disregarding any
restrictions or limitations upon the exercise of such night), whether or not
such acquisition has actually been effected, and such Person shall be entitled
to exercise the rights of a holder of Investor Registrable Securities hereunder.
(b) "Other Registrable Securities" means (i) any Common Stock
held by or issued to any Other Stockholder, (ii) any Common Stock issued or
issuable with respect to the securities referred to in clause (i) above by way
of a stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization. As to
any particular Other Registrable Securities, such securities shall cease to be
Other Registrable Securities when they have been distributed to the public
pursuant to a offering registered under the Securities Act or sold to the public
through a broker, dealer or market maker in compliance with Rule 144 under the
Securities Act (or any similar rule then in force) or repurchased by the Company
or any Subsidiary. For purposes of this Agreement, a Person shall be deemed to
be a holder of Other Registrable Securities, and the Other Registrable
Securities shall be deemed to be in existence, whenever such Person has the
right to acquire directly or indirectly such Other Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
night), whether or not such acquisition has actually been effected, and such
Person shall be entitled to exercise the rights of a holder of Other Registrable
Securities hereunder.
(c) "Registrable Securities" means, collectively, the
Investor Registrable Securities and the Other Registrable Securities.
(d) "Warrants" means the Warrants issued by the Company to
CIVC and MIG pursuant to the Securities Purchase Agreement, as such Warrants are
amended from time to time.
(e) Unless otherwise stated, other capitalized terms contained
herein have the meanings set forth in the Securities Purchase Agreement.
10. Miscellaneous.
(a) No Inconsistent Agreements. The Company shall not
hereafter enter into any agreement with respect to its securities which is
inconsistent with or violates the rights granted to the holders of Registrable
Securities in this Agreement.
(b) Amendments and Waivers. Except as otherwise provided
herein, the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and holders of a majority of the
Registrable Securities.
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(c) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, but this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
(d) Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective 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 holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
(e) Entire Agreement. Except as otherwise expressly set forth
herein, this Agreement embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way, including, without limitation, the Original Registration Agreement.
(f) Counterparts. This Agreement may be executed in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Agreement.
(g) Remedies. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
(h) Governing Law. The corporate law of the State of Texas
shall govern all issues and questions concerning the relative rights of the
Company and its stockholders. All other issues and questions concerning the
construction, validity, interpretation and enforceability of this Agreement and
the exhibits and schedules hereto shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without giving effect to any
choice of law or conflict of law rules or provisions (whether of the State of
Illinois or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Illinois.
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(i) Notices. Any notice provided for in this Agreement shall
be in writing and shall be either personally delivered, sent by telecopy, mailed
first class mail (postage prepaid) or sent by reputable overnight courier
service (charges prepaid) to the Company at the address set forth below and to
any other recipient at the address indicated on the schedules hereto, or at such
address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. Notices shall be deemed
to have been given hereunder upon receipt when delivered personally or by
telecopy, three business days after deposit in the U.S. mail and on the first
business day after deposit with a reputable overnight courier service (postage
provided for and with instructions for overnight delivery). The Company's
address is:
Xxxxxxxxx Sign Company
0000 Xxx 00 Xxxx
Xxxxx, Xxxxx 00000
Attn: Chief Executive Officer
(j) Descriptive Headings. The descriptive
headings of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
XXXXXXXXX SIGN COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Its: Vice President, Chief Financial Officer
and Secretary
INVESTORS:
CONTINENTAL ILLINOIS VENTURE
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Its: Managing Director
MIG PARTNERS VIII
By: /s/ Xxxxxx X. Xxxxxxx
Its: General Partner
SIGNATURE PAGE TO REGISTRATION AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
OTHER STOCKHOLDERS:
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
/s/ Xxx X. Xxxxx
Xxx X. Xxxxx
SOUTHERN INVESTORS CORP.
By: ___________________________________
Its: ___________________________________
SOUTHERN MORTGAGE HOLDING
CORPORATION
By: ___________________________________
Its: ___________________________________
GENEVE SECURITIES PORTFOLIO CORP.
By: ___________________________________
Its: ___________________________________
GENEVE SECURITIES HOLDING CORP.
By: ___________________________________
Its: ___________________________________
CHAPARRAL INTERNATIONAL RE.
By: ___________________________________
Its: ___________________________________
CONTINUATION OF SIGNATURE PAGE TO REGISTRATION AGREEMENT
